[5] It has been contended that the act is void because the provisions of sections 12 and 14 together limit the right to vote at the primary election to electors only who have duly entered upon the register the designation of their party affiliation. It is well settled that requirement for registration of party affiliation as a prerequisite to the right to vote at a primary election is a reasonable regulation and a valid exercise of legislative power. 9 R. C. L. p. 1075, § 89. In this connection the question was suggested in the arguments of respective counsel as to what registration controls for use at the primary election. The question is one of great importance and doubtless will result in future litigation unless now determined. We think it clear that the specific provisions of sections 12 and 14 relating to primary elections are controlling as to what electors are entitled to vote at the primary election. Section 12 of the act in question, in prescribing the qualifications and regulation of voters at the primary election, among other things provides that the same officers who prepare and furnish registers for general elections shall prepare and furnish them for use at primary elections, and it is made the duty of these officers to furnish and certify lists of the voters entitled to vote at such primary election. In providing as to how the register for such primary election shall be made the statute sets forth:

"Said register shall be made by taking the names of all voters on the register used at the last general election in the city, precinct, or county, together with supplemental registers or additions showing all additional registrations, changes, and corrections made since the last general registration. The supplemental registers to be made as follows: All persons entitled to register or vote at any primary election in any precinct, city, or county whose names are not upon the register, or who may be entitled to transfer their registration, shall be entitled to be registered or transferred so as to enable them to vote at such primary election, and for that purpose it shall be the duty of the officer charged with the registration of voters of such precinct, city, or county, to keep his office open for at least fifty days prior to ten days immediately preceding such primary election, and to register all voters entitled to vote at such primary election." Stats. 1915, p. 457, § 12.

It is clear to our mind that under the provisions of the section quoted all voters whose names appeared on the register used at the last general election in any city, precinct, or county are, by the terms of the act, regarded as duly registered electors for the

[6] In addition to this register of voters, a

section, and this supplemental register makes provision for the registration of any voter entitled to register or vote at the primary election in any precinct, city, or county whose name is not upon the register of the last general election in such city, precinct, or county. The registered voters whose names appear upon the certified lists as copied from the register of the last general election, together with the names that appear on the supplemental register, constitute the list of electors qualified to vote at the primary election.

The general election law (St. 1915, c. 285), entitled "An act relating to election," approved on the same day as the act in question, is, in the main, a mere compilation of prior existing election laws. Section 8 of the general election law provides, “A new registration of the electors of this state shall be made in the year of 1916, within the dates hereinafter specified, and every two years thereafter," and is precisely the same provision which was contained in the act of 1913, except that the figures 1916 were substituted in lieu of those of 1914. The general law regulating registration which has been in force in this state for many years contemplated a new registration for the general election every two years. By no reasonable construction could it be said that the provisions of section 8 of the general election law repeals or modifies the provisions of section 12 of the primary election law. 12 of the primary election law of 1915 is, except as to immaterial modifications, precisely the same as section 17 of chapter 3, Acts 1913, p. 520, and the same as section 17 in the primary election law of 1909 (Rev. Laws, § 1751). It is therefore clear that the Legislature of 1915 did not make any change in the prior existing law in so far as registration for primary elections is concerned.

Section

[7] It is well settled that election laws are to be liberally construed to enable the largest participation in all elections by qualified electors. Undoubtedly all electors whose names do not appear upon the register "used at the last general election in the city, precinct, or county," and who register for the general election of 1916 prior to the time at which registration closes for the primary election, are entitled to have their names placed upon the register for such primary election.

As said by the Supreme Court of Pennsylvania in a similar case recently decided:

"If it were our duty to make the law, no doubt some of its provisions would be written differently, but we cannot declare an act void because in some respects it may not meet the approval of our judgment, or because there may

It was defendant's duty to disprove, at the trial by his intimates, the statement of a physician that the wound on his finger was an old one on the day after he claimed it was inflicted by deceased; so that he was not entitled to a new trial for alleged newly discovered evidence thereon.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2318, 2321-2323; Dec. Dig. 939(1).]

Granting of a new trial for newly discovered evidence is largely in the trial court's discretion, so that denial will be disturbed only for abuse clearly disclosed in the record.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2306, 2312, 2313, 2315, 2317, 3069; Dec. Dig. 938(1), 1156(3).]

"(1) That the jury has no legal authority to act.

"(2) That said jury was not drawn according to law.

"(3) That there is no law authorizing the drawing of said jury in the manner that such jury is drawn.

would be null and void." "(4) That any verdict rendered by said jury

[1] Paragraph 1018, Penal Code 1913, provides that:

"A challenge to a panel must be in writing and be taken before a juror is sworn, and must specify, plainly and distinctly, the facts constituting the grounds of challenge."

Paragraph 1017, Penal Code 1913, provides

that:

ITY.

New trial should not be granted for new evidence unless it is such as to render a different result probable.

If it was intended to make the challenge in this case as indefinite and uncertain as possible, that purpose could not have been more effectively accomplished than by the language used. No "facts constituting the ground of challenge" are set forth. It is not shown that "a material departure from the forms prescribed in respect to the drawing and return of the jury" was had. If the jury "was not drawn according to law," the challenge could and should have shown wherein. The

[Ed. Note. For other cases. see Criminal Law, Cent. Dig. §§ 2324-2327, 2336; Dec. Dig. 945(1).]

18. HOMICIDE 253(1)-DEGREE OF MURDER -SUFFICIENCY OF EVIDENCE.

Evidence held sufficient to support a conviction of murder in the first degree. [Ed. Note. For other cases, see Homicide, Cent. Dig. 88 523, 531; Dec. Dig. 253(1).] Cunningham, J., dissenting.

Appeal from Superior Court, Gila County; G. W. Shute, Judge.

Robert Dayton Talley was convicted, and appeals. Affirmed.

Thomas E. Flannigan, of Globe, H. M. Foster, of Miami, and F. C. Jacobs, of Globe, for appellant. G. P. Bullard, Atty. Gen., and Leslie C. Hardy, Asst. Atty. Gen., for the State.

ROSS, C. J. The appellant appeals from a sentence of death, having been convicted upon the charge of murdering Jesse G. Danner on the 18th day of November, 1913, in Gila county, Ariz. He asks that the judgment be reversed upon numerous grounds. He interposed a challenge to the panel of the trial jury, which was overruled by the court. His

Paragraph 3542 has been the law of Arizona since 1901, it appearing in the Revised Statutes as paragraph 2807. The challenge failing to set forth any reason why the court was not authorized under said paragraph 3542 to order a special venire, we must presume that the court regularly pursued its authority and that the facts, justifying the course taken by the court, existed.

A challenge was interposed to Juror Willis Miller upon the ground that he had “served as a juror on the regular list within the previous twelve months in the same court." This challenge is based upon chapter 24, § 2, Session Laws of 1905. At the time of the trial, said section 2 had been amended by the elimination of the ground of exemption or disqualification interposed. See paragraph 3543, Civil Code 1913.

The other errors assigned are directed toward alleged errors committed in the course of the trial, and in order to consider them it will be necessary to look into the evidence. They are that the court erred in admitting

[2] The Attorney General has called our attention to the fact that the reporter's transcript of the testimony has not been approved by the judge who tried the case. He insists that under the rule heretofore made by this court in Chavez v. Territory, 14 Ariz. 107, 125 Pac. 483, Perez v. Territory, 14 Ariz. 163, 125 Pac. 483, and Shaffer v. Territory, 14 Ariz. 329, 127 Pac. 746, we are without authority to review the evidence for any purpose. However, we are not disposed to pursue that course in this case. Under strict law we might refuse to examine the evidence and contine our attention to the record for fundamental errors; but, in view of the fact that appellant has received the death sentence, we will treat the evidence as though it were regularly and legally before us. Besides, in the Chavez Case this court said:

"This being a criminal case where the death penalty was awarded, we have most carefully scrutinized the record as it is presented to us. The indictment is sufficient, and the evidence in the case is ample to support the conviction."

In the Perez Case it was said:

"We have carefully examined the entire record presented. We think the instructions of the court fairly placed the law of the case before the jury, and we think the substantial evidence supports the verdict."

In all capital cases this court has uniformly examined the evidence, whether approved by the trial judge or not, to see that the accused was protected in his rights and not unlawfully condemned. There has been no suggestion by the Attorney General nor any one else concerned that the transcript of the evidence on file in this court is not correct, and should it disclose that the appellant was not awarded all of the rights guaranteed to him under the Constitution and the law, in view of the fact that appellant's life is involved, we ought not to hesitate to reverse the case. On the other hand, if his rights were secured to him the duty is equally obligatory to let the law take its course.

Out of the mass of testimony introduced the salient facts leading to the homicide and descriptive thereof are as follows:

The deceased, Jesse G. Danner, was the stepfather to Ethel Spencer, Ruby Johnson, and Pearl Johnson, being the husband of their mother, Lily May Danner. The Danners and the appellant before coming to Arizona had lived at Anthony, N. M. While there the appellant paid attention to Ethel Spencer and kept her company for about two years. The deceased disapproved of his visits and companionship with his stepdaughter and requested appellant to cease visiting the Danner home. The Danner family, including Ruby and Pearl Johnson, moved to Miami, Ariz.; Ethel Spencer remaining in New Mexico. Appellant also moved to Miami and at

About September 6, 1913, appellant wrote a letter to Ethel Spencer, in which he advised her, if she could, to take her sisters away from Miami because the Danners did not care as to the way they carried on; that one of the sisters was working in a shooting gallery and the other was working in a restaurant; that these places were not places that decent girls should work; that there was a roadhouse between Miami and Globe; and that this roadhouse had been indicted because of letting Pearl and Ruby Johnson stay there all night. On the receipt of this letter, Ethel Spencer wrote her mother and stepfather of its contents, but did not tell them its author.

On the evening of the 18th of November, 1913, about 8 o'clock, Mr. and Mrs. Danner and the appellant were at the home of Mrs. J. O. Lipps in Miami. The deceased only remained for a few moments. After he had gone, some one remarked that Ethel Spencer was married. Mrs. Lipps further testified, when these remarks were made, appellant got up and left without saying a word. It could not have been very long thereafter when appellant appeared at the sleeping apartments of Harry Hovey and asked him if he wanted to go downtown. After they got started, Hovey said:

"Where are you going, to the dance?' And he said, 'Yes, I might dance some.' We went in and sat in the dance hall awhile, and finally he said, 'Let's go and get the mail,' and I said, 'All right.'

999

While at the dance appellant asked Price Lipps if Mr. and Mrs. Danner came by, and Reaching the was informed that they did. post office, Hovey went in the building for the mail, and appellant remained on the outside at the door. Just at this moment the deceased and Mrs. Danner entered the post office, passing appellant at the door and meeting Hovey as he was going out. Hovey says he told Talley that there was no mail and suggested that they go, whereupon Talley As the Danners said, "Let's stick around." passed out of the post office, Talley said, using his own language, "Mr. Danner, I would like to speak to you a minute." Danner said, "All right," and walked up to him. "I said, 'Mr. Danner, I understand you suspicion that I wrote a letter to Ethel about the way you are treating Pearl and Ruby?' and he said, 'Yes.' Then I asked him did he know who wrote the letter for sure, and he said, 'No,' and then I told him that I wrote it, and what I wrote was the truth, and he replied, 'You are a damn dirty liar,' and struck me almost at the same time."

Mrs. Danner's testimony was practically the same as appellant's as to what was said by appellant and her husband, but she says appellant struck her husband first, knocking him down. A rough and tumble fight ensued, with the deceased first underneath, then appellant. In the meantime, several people

In Lenord v. State, 15 Ariz. 137, 137 Pac. 412, and 151 Pac. 947, we said:

The appellant testified that at the time he shot deceased the latter moved his right hand down toward his hip, and that he thought he was going after a gun; thus he would justify his act in taking the life of the deceased upon the ground of self-defense.

[3] The state introduced as part of its evidence some of the garments worn by the deceased at the time that he was shot, and this is assigned as error. It is contended by appellant that there was no evidence to show that the garments were in the same condition as when taken from the body of the deceased. No such objection to this evidence was interposed at the trial, the objection there being that such evidence was incompetent, irrelevant, immaterial, and no part of the res gestæ, and on the further ground that it had not been properly identified. The identification was absolute, the witnesses testifying that the garments were the identical garments worn by the deceased at the time he was shot. Appellant not having raised the point at the time that the clothing were not in the same condition as when taken from the body of the deceased, we think his objection now comes too late.

[4] The prosecution was permitted over the objections of the appellant to introduce evidence of appellant's attachment to Ethel Spencer, showing that he kept company with her against the will and protest of the deceased. It is contended that this testimony should not have been admitted, because it was too remote and did not tend in any way to establish a motive or intent. With this contention we cannot agree. The evidence showed that appellant and Ethel Spencer kept company for about two years, and that after he left New Mexico and came to Arizona he kept up a correspondence with her, and that when he learned on the night of the 18th of November, 1913, at Mrs. Lipps' home, that Ethel Spencer had married, he was

"It is always permissible to show previous troubles, when in search of the real cause or motive actuating a party to the commission of currence, or even somewhat remote in time, if crime, especially if the trouble is of recent ocit tends to elucidate and throw light on the act constituting the crime or explain the reason of its commission."

[5] It is also objected that the court erred in permitting the prosecution to show the contents of appellant's letter, dated September 6, 1913, to Ethel Spencer, wherein he reflected upon the lack of parental care and affection on the part of deceased and Mrs. Danner for their daughters, Pearl and Ruby, and also upon the chastity and virtue of these two girls. We think the letter was proper evidence to show the feeling appellant entertained toward the deceased. If what he wrote was false, it was a malicious lie originating from the wicked and vindictive heart; if the contents of the letter were true and written in the interest and for the protection of the two girls, still it indicated a feeling of resentment and condemnation toward the deceased. In either event, it would tend to show feeling, motive or malice.

[6] Jim Swearingen, deputy sheriff, testified, over the objections of appellant, that he and Alf Edwards examined the ground for weapons, where the killing had taken place, and this was excepted to for the reason that no time was fixed as to when the examination took place. The witness stated that he was in the post office immediately after the shooting. The question propounded was, "What else, if anything, did yourself and Mr. Alf Edwards do with respect to the place where the killing had been had?" This was objected to on the ground of its incompetency, irrelevancy, and immateriality, whereupon the court asked, "I understand this is all within a period of a few minutes ?" The county attorney replied, “All within a few minutes." The witness then said that he and Edwards took a light and searched the ground to see what they could find. We think the objections interposed did not go to the grounds as now urged against the evidence. Besides, that no weapons were on the ground is supported by the evidence of all the other witnesses, and that the only weapon seen was the one in appellant's hands. Appellant himself says that he did not see any weapon in the hands or on the person of the deceased, nor did any other witness.