State v. Schad, 4876-2-PC

Decision Date29 November 1984
Docket NumberNo. 4876-2-PC,4876-2-PC
Citation142 Ariz. 619,691 P.2d 710
PartiesSTATE of Arizona, Appellee, v. Edward Harold SCHAD, Jr., Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Schafer III, and David R. Cole, Asst. Attys. Gen., Phoenix, for appellee.

Charles Anthony Shaw, Prescott, for appellant.

HAYS, Justice.

Petitioner, Edward Schad, Jr., was tried and convicted of first-degree murder and sentenced to death. State v. Schad, Jr., 129 Ariz. 557, 633 P.2d 366 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982). Later, he filed a petition with the trial court raising numerous issues. See 17 A.R.S. Rules of Criminal Procedure, rule 32. The trial court dismissed the petition. Schad petitioned this court for review, and we granted the petition for consideration of relief on four of the twenty-four issues he raised; relief as to the remaining issues was denied. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and 17 A.R.S. Rules of Criminal Procedure, rule 32.

We address only one issue because it requires reversal of Schad's conviction. Schad contends that the trial court improperly instructed the jury on the crime of felony murder. The court's instruction to the jury reads as follows:

Murder is the unlawful killing of a human being with malice.

The thing that distinguishes murder from all other killings is malice. There are two kinds of malice. A person has one kind of malice when he deliberately intends to kill. If you determine that the defendant used a deadly weapon in the killing, you may find malice. If you determine that the defendant had no considerable provocation for the killing, you may find malice.

There is also a second kind of malice. A person has this kind of malice if he shows a reckless disregard for human life.

Once you have determined that there is malice, you must determine whether the murder was in the first or the second degree. First-degree murder is murder which is the result of premeditation. "Premeditation" means "deciding in the mind beforehand." It does not matter how quickly or slowly the decision to kill is followed by the act of killing.

Murder by means of poison, lying in wait, or torture, or which is committed in the attempt to commit arson, rape, robbery, burglary, mayhem, kidnapping, or molestation of a child under the age of 14, is also first-degree murder.

All other kinds of murder are second-degree murder.

If you have a reasonable doubt about which of the two degrees of murder was committed, you must decide it was second-degree murder.

There were two underlying felonies in this case: robbery and kidnapping. For the facts of the case, see Schad, supra. The court did not define either felony in its instructions to the jury. While the prosecutor, in arguing felony murder to the jury, indicated what robbery is, this was not sufficient to take the place of the instruction that should have been given by the trial judge. Thus, the jury was informed that it...

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24 cases
  • State v. Allen
    • United States
    • Arizona Supreme Court
    • July 26, 2022
    ...statutory language of § 13-1105(A)(2), see Rios , 217 Ariz. at 251 ¶ 9, 172 P.3d at 846, and Sammantha's reliance on State v. Schad, 142 Ariz. 619, 691 P.2d 710 (1984) is misplaced. In Schad , the trial court erroneously allowed the jury to convict the defendant of felony murder without pro......
  • Bouwkamp v. State
    • United States
    • Wyoming Supreme Court
    • June 2, 1992
    ...v. Schad, 129 Ariz. 557, 633 P.2d 366 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982) and State v. Schad, 142 Ariz. 619, 691 P.2d 710 (1984). Schad addressed a hitchhiker killing of his automobile ride host. In Schad, the Arizona court gave quick consideration to t......
  • State v. Schad
    • United States
    • Arizona Supreme Court
    • December 14, 1989
    ...fundamental error by instructing the jury on felony murder without defining the elements of the underlying felony. State v. Schad, 142 Ariz. 619, 691 P.2d 710 (1984). On remand, the defendant was again convicted of first degree murder and sentenced to death. This appeal followed. We have ju......
  • Schad v. Ryan, 07-99005.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 11, 2009
    ...his conviction on the ground that the trial court improperly instructed the jury on the elements of felony murder. State v. Schad, 142 Ariz. 619, 691 P.2d 710, 711-12 (1984). In Schad's 1985 retrial, he was again convicted of first-degree murder on materially the same evidence, and sentence......
  • Request a trial to view additional results
3 books & journal articles
  • Cases Cited: Arizona Supreme Court.
    • United States
    • State Bar of Arizona Arizona Supreme Court Part H Cases Cited(Chapter 68. - 69.) 69. Cases Cited: Arizona Supreme Court.
    • Invalid date
    ...mitigation: felony-murder, model prisoner) (cert. denied, 455 U.S. 983 (1982)) (subsequently challenged on PCR) (for Schad II, see 142 Ariz. 619).• State v. Britson, 130 Ariz. 380, 636 P.2d 628 (1981) (death penalty affirmed) (the defendant’s wife left him and moved into the victim’s traile......
  • § 4.14.6 Trial - Rules 18-23.
    • United States
    • State Bar of Arizona Appellate Handbook 6th Edition 2015 Chapter 4 Criminal Appeals, Habeas Corpus and Post-conviction Relief (§ 4.1 to § 4.33.6)
    • Invalid date
    ...is the possibility that the defendant was convicted on deficient jury instructions, the conviction must be reversed.”); State v. Schad, 142 Ariz. 619, 621, 691 P.2d 710, 712 (1984) (possibility that jury convicted defendant of first degree murder based on deficient instruction constitutes f......
  • § 4.41 Outline of Procedural Steps and Time Limits For Criminal Appeals.
    • United States
    • State Bar of Arizona Appellate Handbook 6th Edition 2015 Chapter 4 Criminal Appeals, Habeas Corpus and Post-conviction Relief (§ 4.1 to § 4.33.6)
    • Invalid date
    ...4-39 State v. Schad, 129 Ariz. 557, 633 P.2d 366 (1981)................................................. 4-50 State v. Schad, 142 Ariz. 619, 691 P.2d 710 (1984)................................................. 4-51 State v. Schrock, 149 Ariz. 433, 719 P.2d 1049 (1986).............................

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