State v. Woolery

• Court: Arizona Supreme Court
• Writing for the Court: JENNINGS; BERNSTEIN
• Citation: State v. Woolery, 378 P.2d 751, 93 Ariz. 76 (Ariz. 1963)
• Decision Date: 13 February 1963
• Docket Number: No. 1197,1197
• Parties: STATE of Arizona, Appellee, v. William H. WOOLERY, Appellant.

Page 751

378 P.2d 751

93 Ariz. 76

STATE of Arizona, Appellee, v. William H. WOOLERY, Appellant.

No. 1197.

Supreme Court of Arizona, In Banc.

Feb. 13, 1963.

Westover, Mansfield, Westover & Copple, and Douglas W. Keddie, Yuma, for appellant.

Robert W. Pickrell, Atty. Gen., Stirley Newell, Asst. Atty. Gen., Jeff Richards, County Atty. Yuma County, Bill Helm, former County Atty. Yuma County, for appellee.

JENNINGS, Justice.

Defendant, William H. Woolery, was charged with the murder of his fifteen-year-old step-daughter, Paula Dinnell. The pertinent facts are as follows: On July 24, 1960 defendant was at the home of Mrs. Ida Adelle Smith. Defendant's wife, Elizabeth Woolery, arrived at the Smith home in a taxicab at approximately 2:30 a. m. She asked for her husband and was told by Mrs. Smith that he was not there. She then returned home in the taxicab. As Mrs. Woolery was paying the taxicab driver, defendant arrived home in his automobile. Defendant pulled Mrs. Woolery from the taxicab and an argument ensued between them. The argument was continued in the living room inside the house. During the course of the argument defendant struck Mrs Woolery, went into their bedroom, returned with a pistol and then threatened to kill her with it.

Paula, the deceased, appeared in the doorway way of the living room and told defendant to leave her mother alone. Defendant told her it was none of her business and then ordered her back to bed. He hit her in the face and kicked her as she was returning to bed. Paula then ran into her mother's bedroom saying she was going to call the police. Defendant went in after her and said, 'If you do I will shoot'. A shot followed.

Mrs. Woolery thereupon entered the bedroom and found that Paula had been shot in the stomach. Paula was immediately taken to the hospital. She died during an emergency operation. Defendant was subsequently arreated and tried for murder. He was convicted of second degree murder and now appeals the judgment.

The first three assignments of error involve the charge upon which the defendant was tried. Defendant contends that the trial court erred in (1) allowing voir dire and challenges for cause on the death penalty; (2) submitting a verdict of first degree murder to the jury; and (3) in denying defendant's motion (made during voir dire examination of the jury) to quash the information insofar as it charged defendant with frist degree murder.

The complaint upon which defendant was arrested charged:

'That one William H. Woolery on or about the 24th day of July, 1960, * * * committed a Felony, to-wit: Murder as follows, to-wit: That the said defendant, William H. Woolery, did wilfully, unlawfully, and feloniously and with malice aforethought kill and murder one Paula Dinnell, a human being.'

A preliminary examination was held after which an order holding defendant to answer was entered. It provided:

'It appearing to me that the crime of Felony to-wit: Murder has been committed, on or about the 24th day of July A.D. 1960, in the County of Yuma, State of Arizona, and that there is sufficient cause to believe that William H. Woolery is guilty thereof, I order that he, the said William H. Woolery be held to answer the same * * *.'

An information was thereupon filed against defendant accusing him of the crime of:

'Felony, to-wit: Murder. Committed as follows, to-wit: That the said William H. Woolery on or about the 24th day of July, 1960, and before the filing of this information, at, and in the County of Yuma, State of Arizona, did then and there wilfully, unlawfully, feloniously and with malice aforethought kill and murder one Paula Dinnell, a human being.'

The defendant contends that the trial court erred in permitting the county attorney to voir dire the jury on whether they had any scruples against infliction of the death penalty, and in allowing challenges for cause of jurors having such scruples, for the reason that the charge of murder stated in the information could only charge the defendant with second degree murder which is not punishable by death. Defendant argues that the order of the magistrate holding defendant to answer upon the charge of murder, no degree being specified, necessarily charged defendant with second degree murder only, inasmuch as it could not appear from the evidence presented to the magistrate that the crime of first degree murder had been committed. Hence, he contends, he was necessarily charged in the information with second degree murder since the only crime a county attorney may charge in an information is that offense set forth in the order of the committing magistrate holding the defendant to answer.

It is defendant's position that a jury may only be examined regarding their scruples on capital punishment when the defendant is properly charged with the commission of an offense punishable capitally, and a jury selected after such examination and the allowance of challenges for cause based thereon, is improperly constituted if the defendant is not charged with a capital offense. Defendant therefore contends that by allowing challenges to jurors having scruples against capital punishment he was deprived of a properly and lawfully constituted jury which resulted in denial of a substantial right constituting reversible error.

This assignment is without merit. Rule 115, Rules of Criminal Procedure, 17 A.R.S., provides in pertinent part:

'A. The indictment or information may charge, and is valid and sufficient if it charges, the offense for which the defendant is being prosecuted in one or more of the following ways:

'1. By using the name given to the offense by the common law of by a statute.

'2. By stating so much of the definition of the offense, eigher in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged.'

A.R.S. § 13-451 defines murder as the 'unlawful killing of a human being with malice aforethought.' The offense is broken down into degrees in A.R.S. § 13-452. Rule 142, Rules of Criminal Procedure, 17 A.R.S., provides that:

'In an indictment or information for an offense which is divided into degrees it is sufficient to charge that the defendant committed the offense, without specifying the degree.'

The information in the case at bar charged the defendant with having committed the crime of 'murder', no degree being specified. An information which charges murder without specifying the degree is sufficient to charge murder in the first degree. ¹ Macias v. State, 39 Ariz. 303, 6 P.2d 423 (1931); People v. Coston, 84 Cal.App.2d 645, 191 P.2d 521 (1948). See also State v. Jefferds, 89 R.I. 272, 152 A.2d 231 (1959). Rule 294, Rules of Criminal Procedure, 17 A.R.S., provides that 'if the * * * information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged.' Since the information was sufficient to charge first degree murder, voir dire and challenges for cause on the death penalty were proper under Rule 219, subd. A(14), Rules of Criminal Procedure, 17 A.R.S.

It is further contended by the defendant that the trial court did not have jurisdiction to try defendant for first degree murder and therefore erred in submitting a verdict of first degree murder to the jury. Defendant argues that no preliminary examination was held in which any evidence of first degree murder was shown and hence, defendant was held to answer and was charged in the information with second degree murder. The record discloses there was sufficient evidence before the magistrate to bind the defendant over on a charge which included first degree murder.

The assignment that the trial court erred in denying defendant's motion to quash the information insofar as it charged defendant with first degree murder is without merit. The motion to quash was made during voir dire on the ground that the evidence before the magistrate was not sufficient to find probable cause that first degree murder had been committed. The question of the sufficiency of the evidence at the preliminary examination before the magistrate may not be raised by a motion to quash the information, State v. Dunivan, 77 Ariz. 42, 266 P.2d 1077 (1954); Ramirez v. State, 55 Ariz. 441, 103 P.2d 459 (1940), since it is not one of the enumerated grounds set forth in Rule 169, Rules of Criminal Procedure, 17 A.R.S. See also Pfeiffer v. State, 35 Ariz. 321, 278 P. 63 (1929).

Defendant's next assignment is that the trial court erred in denying his motion for change of venue. In support of such motion defendant filed an affidavit which stated that 'the people of the county were biased and prejudiced against him by reason of the widespread publicity given the case in the local daily newspaper, radio coverage and a publication of the First Christian Church of Yuma called the Desert Guidepost.' He contends that due to the widespread publicity given the case and the jurors familiarity with the witnesses he was deprived of a fair and impartial trial.

The propriety of granting or refusing an application for change of venue is largely a matter of discretion of the trial court which we will not disturb unless it clearly appears that such discretion was abused. State v. McGee, 91 Ariz. 101, 370 P.2d 261 (1962); State v. Robinson, 89 Ariz. 224, 360 P.2d 474 (1961); State v. Thomas, 78 Ariz. 52, 275 P.2d 408 (1954); burgunder v. State, 55 Ariz. 411, 103 P.2d 256 (1940).

We have examined the record in the case at bar and it does not appear to us that the trial court abused its discretion in denying the motion for change of venue. An examination of the newspaper articles discloses that they are the usual newspaper articles which accompany an incident such as was involved in this action. The article from the 'Desert Guidepost' stated that...