State v. Dixon
| Decision Date | 06 July 1973 |
| Docket Number | No. 2596,2596 |
| Citation | 511 P.2d 623,109 Ariz. 441 |
| Parties | The STATE of Arizona, Plaintiff, v. Benny DIXON, Defendant. |
| Court | Arizona Supreme Court |
Rose Silver, Former Pima County Atty., Dennis W. DeConcini, Pima County Atty. by Stephen M. Weiss, Deputy County Atty., Tucson, for the State of Arizona.
Albert R. Gamble, Tucson, for defendant.
Under Rule 346 of the Rules of Criminal Procedure, 17 A.R.S., the following question has been certified to us by the Superior Court of Pima County:
'Does the sole act of selling heroin to a purchaser, who voluntarily out of the presence of, and without the assistance of, the seller injects the same quantity of heroin into his body and dies as a result thereof constitute second degree murder?'
Two Arizona statutes must be considered in answering the certified question. They are:
A.R.S. § 13--451, subsec. A which reads:
'Murder is the unlawful killing of a human being with malice aforethought.'
A.R.S. § 13--452 which provides:
(Emphasis added).
The documents submitted indicate that the State wishes to prosecute defendant for second degree murder, through his crime was merely the sale of heroin. In short, the State considers the crime to be that of 'Felony Murder,' which is the charge where a man is actively engaged in committing a crime, during which someone is killed.
The State argues that one who commits an inherently dangerous felony which results in the death of another, is guilty of second degree murder, because of the second statute set out above. In its memorandum of points and authorities, the State alleges that 'Arizona adheres to the common law doctrine that the commission of a felony which results in the death of another is murder.' In the next sentence, the State says 'Common law crimes have not survived in Arizona, and there must be a statute specifically prohibiting the questioned act.' In other words, the State admits that there is no common law crime of felony murder in Arizona, and if that crime exists, it must be by interpretation of the above statute.
The State argues that there are two Arizona cases to support its theory. However, one of them is not in point because in it the defendant himself shot the victim whom he had kidnapped! State v. Jones, 95 Ariz. 4, 385 P.2d 1019.
The other case cited by the State is Kinsey v. State, 49 Ariz. 201, 65 P.2d 1141. This was an abortion case where the patient died. There, again, the defendant killed the victim, albeit, unintentionally. Admittedly, the case contains some language supporting the State's theory...
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