Datasets:

TeraflopAI

/

arizona_embeddings

like 0

OPINION NELSON, Judge. In this Special Action — Industrial Commission, the petitioner insurance carrier, Continental Casualty Company (Continental), asks us to determine whether the Industrial Commission acted correctly when it refused to administratively close a claim covered by Continental following a second injury to the same disc in the employee’s back. The respondent employee, Santos J. Lira (Lira), first injured his back in the course and scope of his employment with Farmers Investment Company on or about December 10, 1974 while Continental was the workmen’s compensation insurance carrier for Farmers. The Industrial Commission awarded compensation benefits for this injury. Lira returned to his regular employment with Farmers on February 17, 1975, and worked full time until May 29, 1976, when he suffered a second injury to his back at the identical disc level as the injury of 1974. At the time of the second injury, Lira was not receiving active medical care, but inasmuch as his condition had not yet been determined to be medically stationary, the claim had not been closed by Continental. In May 1976, at the time of the second back injury, Farmers’ insurance carrier was the State Compensation Fund. The Fund denied Lira’s claim for a new injury and Lira filed a request for hearing to protest the denial of his claim. Continental then requested that a determination be made pursuant to A.R.S. § 23-1061(K) as to which carrier, itself or the Fund, was to be liable for compensation benefits incurred as a result of the May 29, 1976 incident. At the close of consolidated hearings, the hearing officer issued an award finding that Lira had suffered a new injury on May 29, 1976, and that the Fund was responsible for all benefits accruing to Lira as a result of that injury. The award also, however, required Continental to keep the 1974 claim open for compensation benefits and medical benefits until Lira’s condition “resulting from the industrial injury of December 10, 1974, becomes stationary”. Continental filed a request for review, in which it alleged that its claim should have been closed by the hearing officer when he found that Lira suffered a new injury on May 29, 1976. The award was thereafter affirmed by the hearing officer on review, and this special action was instituted by Continental. It is undisputed that both the 1974 and 1976 injuries were to the same portion of petitioner’s back. We are thus presented with a situation almost identical to that in Lumbermen’s Mutual Casualty Co. v. Industrial Commission, 118 Ariz. 92, 574 P.2d 1311 (App.1977), where the employee suffered two injuries to his back. At the time of both injuries, Lira was employed by Farmers. Between the time of the first and second injuries, however, the employer changed insurance carriers. Further, in Lumbermen’s Mutual, as here, the employee’s condition had not been determined to be stationary at the time of the second back injury, but he was working full time. In that case we affirmed the principle that where a second industrial episode results in symptoms similar to those which accompanied an earlier accident, the second episode can constitute a new injury. See also Caganich v. Industrial Commission, 108 Ariz. 580, 503 P.2d 801 (1972). We also held, based on the Arizona Supreme Court’s opinion in Morrison-Knudsen Company, Inc. v. Industrial Commission, 115 Ariz. 492, 566 P.2d 293 (1977), that apportionment of benefits between the two carriers was not available and that the carrier at the time of the second injury was solely responsible for any benefits following the second accident. The same is true in this case. All benefits following the May 29, 1976 industrial injury must be paid by the State Compensation Fund. It is apparent, then, that Continental’s liability has legally ended. Any attempt to leave the 1974 claim open necessarily contemplates that some type of apportionment can occur. As we have already noted, however, apportionment is not available in this situation, and the Fund must bear the entire burden of any future liability. This liability can extend even to permanent disability benefits because it has been determined that the 1976 incident constituted a new injury, and not merely a temporary aggravation of the condition resulting from the 1974 incident. It matters not that the first injury may medically contribute to Lira’s condition and that the condition may eventually be worse than it would have been had the second injury been the only injury, legally the second carrier is solely liable. Morrison-Knudsen Company, Inc. v. Industrial Commission. Since under the facts Continental’s liability has been extinguished by virtue of the second industrial injury to the same part of Lira’s back, the Industrial Commission should have administratively closed the 1974 claim. The award is set aside. WREN, P. J., and EUBANK, J., concur. . Our review of the file indicates that the injury occurred approximately two weeks prior to December 10, 1974. However, the injury report was filed on December 10, 1974 and all subsequent documents have adopted that as the date of the injury. Therefore, for the sake of consistency, we have also adopted that date. . The Court in Lumbermen’s Mutual carefully drew the distinction between injuries to the same part of the body, as is the case here, and injuries to different parts of the body, which may be apportioned under A.R.S. § 23-1044(E).

HOLOHAN, Justice. The appellant, the surviving spouse of Russell Grant Bagley, filed a wrongful death action against the State of Arizona and a number of other defendants. The state’s motion for summary judgment was granted by the trial court, and a final judgment in favor of the state' was entered. Appellant filed a timely appeal. This court has jurisdiction pursuant to 17A A.R.S. Rules of Civil Appellate Procedure, rule 19(e). We affirm the decision of the trial court. Appellant’s husband, Russell Grant Bagley, was killed when the Lone Star Mine caved in on January 11, 1974. About a week earlier, on January 3, 1974, the state mine inspector had ordered the mine closed for failure to comply with safety standards. That order was still in effect on January 11. The first count of appellant’s action against the state alleged that the state, acting through the Arizona State Mine Inspection Department, was negligent in failing to prevent her husband’s death. Specifically, appellant alleged that the state failed to inspect properly, failed to safeguard against potential hazards, failed to post warning signs, failed to close the mine, failed to warn her husband of the dangerous condition, and failed to enforce state and federal orders and laws related to the safety of the mine. In a separate count, appellant reiterated the same facts, alleging them to be gross, wilful and wanton negligence. The state’s motion for summary judgment was supported by the affidavit of the state mine inspector which stated: That the mine in question was inspected by deputy mine inspectors on January 3, 1974; that pursuant to the findings of the inspection the state mine inspector ordered the mine closed until the required repairs could be made; and that all mining operations were ordered ceased. The order closing the mine was in full force and effect on January 11, 1974. Appellant did not respond with opposing affidavits. Ever since this court’s decision to abolish the doctrine of governmental immunity, Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963), the courts have been troubled with the problem of where government’s liability begins and ends. Each case that this court has decided since Stone, supra, has added another facet to the intricate and sometimes confusing case law defining the limits of governmental liability. See Grimm v. Arizona Board of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977); Arizona State Highway Dept. v. Bechtold, 105 Ariz. 125, 460 P.2d 179 (1969); Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969); Patterson v. City of Phoenix, 103 Ariz. 64, 436 P.2d 613 (1968); Veach v. City of Phoenix, 102 Ariz. 195, 427 P.2d 335 (1967); Besserman v. Town of Paradise Valley, Inc., 116 Ariz. 471, 569 P.2d 1369 (App.1977); Ivicevic v. City of Glendale, 26 Ariz.App. 460, 549 P.2d 240 (1976); Duran v. City of Tucson, 20 Ariz. App. 22, 509 P.2d 1059 (1973). Throughout those cases one rule consistently recurs. As in any tort claim, the first question to be resolved is whether the defendant owes a duty to the plaintiff. Here, in contrast to many prior cases, the duties and powers of the state mine inspector are stated fairly explicitly in the statutes. Beginning with A.R.S. § 27-302 which places enforcement authority with the mine inspector through the rest of the chapter, the duties and responsibilities of the mine inspector are detailed. A.R.S. § 27-307 requires the inspector to inspect for dangerous conditions, and to notify the mine operator of any findings of danger. The statute also gives the mine inspector authority to order the cessation of mine operations for noncompliance with safety regulations. This latter provision is further enforced by A.R.S. § 27-307(B) which makes the notice of the mine inspector prima facie evidence of negligence by the mine operator for injuries suffered by employees subsequent to the notice of dangerous condition. A.R.S. § 27-302(C) makes violation of any provision of the chapter an offense. The appellant argues that the state mine inspector had a legal duty to close the mine due to its dangerous condition or at least to post signs warning that the mine was dangerous and had been ordered closed. Appellant seems to overlook the fact that the statutes governing mining operations, A.R.S. § 27-301 et seq., do not grant the mine inspector the authority to physically close a mine, nor do the statutes provide that he may post sign notices on the private property of the mine owner. As a practical matter either of these procedures might be a more prudent procedure to follow to enforce the findings of the mine inspector, but the legislature did not provide the mine inspector with such authority. The primary responsibility for the life, health and safety of mine employees was placed upon the mine operator. See A.R.S. § 27-304. It must be concluded that there was no statutory duty for the mine inspector to act as suggested by appellant. The record shows that the mine inspector complied with the requirements of the statutes. Appellant contends that the statutes concerning mining operations are designed to protect the people employed in mines. The mine inspector has a duty, implied from the purpose of the statutes, to warn mine employees of dangerous conditions found by the mine inspector after an inspection of a mine. At the outset we disagree with appellant’s contention that the mine inspector has an implied duty to warn mine employees of dangerous conditions.. As was noted earlier the statutory system calls for the mine inspector to give notice to the mine operator. A.R.S. § 27-307(A). The mine operator after being given notice of a dangerous condition must make the necessary change forthwith to bring the mine into a safe condition. A.R.S. § 27-307(B). Although it may be that the underlying purpose of the mine inspection statutes is to protect those employed in the mines, it appears that the statutes provide a system to accomplish this purpose, and the record indicates that the mine inspector followed the statutes. Appellant argues that the state by enacting a statute which benefits an identifiable segment of the public assumes a duty to the individual members of that group; further, the failure to perform that duty gives rise to a claim for relief by any individual within the group who may be injured by the negligent acts of the state. In support of this position appellant relies on Vea ch v. City of Phoenix, supra, and Restatement of Torts (Second) § 323. The authorities cited by appellant are not applicable to the situation at issue. Vea ch involved the furnishing of a service which this court held had to be given impartially to all members of the public without discrimination. The cited section from the Restatement also involves the furnishing of services to another. We believe that the mine inspection statutes are more analogous to those types of governmental inspection such as fire and building inspections. These types of inspection, while often benefiting an identifiable group, are held to be statutes for the benefit of the public. See Duran v. City of Tucson, supra. In our view the mine safety statutes provided a duty which was owed to the public and not a duty to a particular individual. The actions of the state mine inspector and his staff were performed in accordance with the requirements of statute. The duties required of the state mine inspector under the mine operation statutes were of a public nature, and no private duty to any specific individual was created. The granting of summary judgment by the trial court is affirmed. CAMERON, C. J., and HAYS, J., concur.

OPINION HATHAWAY, Judge. This appeal attacks a judgment awarding appellee insurance company, the subrogee of its insured’s contract claim against appellants, $11,462.00 and appellee dealer, insurance company’s insured, $250 against appellants (hereinafter borrowers). We affirm. Dealer and borrowers entered into a borrowed car agreement when borrowers left their motor home with dealer for repairs and took a substitute vehicle. The agreement provided: “(4) Borrower agrees that while this Agreement is in force he will preserve and protect the subject automobile from loss or damage in the manner prescribed below. * * * * * * (6) Borrower agrees that ... in the event of loss or destruction of said automobile ... or inability to return same to Dealer on demand for any reason whatsoever, Borrower will pay Dealer the market value of the automobile . unless otherwise specified. (12) Borrower agrees that he will, at his sole risk and expense, maintain Bodily Injury and Property Damage Liability Insurance covering the use of subject automobile during the time it is in his possession and until it is returned to the Dealer. Dealer shall not be required to carry or provide Bodily Injury or Property Damage Liability Insurance during said period of time.” Borrowers, without fault, were involved in a single car accident that destroyed the vehicle. A damage appraisal itemizing repair costs of $11,712.70 was admitted into evidence. No other evidence of the market value of the vehicle was admitted. Borrowers impleaded their insurer in this action. The insurer’s motion for summary judgment was granted because the insurance did not cover the loss. Dealer maintained with appellee collision applicable to this loss. It collected the amount of the appraisal less the $250 deductible. Where an insured contracts with a third party requiring the latter to pay for loss or damage to insured property, upon payment of the loss the insurer is subrogated to the rights of the insured under the contract. Couch on Insurance (Second) Sec. 61:144 (1966). Appellants counter with the claim that the insurer’s subrogation rights are inapplicable to them because as additional insureds no right of subrogation arises. Id., Sec. 61:134. We find no basis for appellants’ claimed status as additional insureds. Dealer’s collision coverage limits coverage to the named insured. That the policy extends coverage to vehicles when rented as substitutes for vehicles left with dealer for repairs does not mean appellants áre insureds under the policy. Nor must the collision policy extend omnibus coverage under A.R.S. Sec. 28-1170(B)(2). Under the statute, omnibus coverage is an implied term in liability policies not in collision policies. See Jenkins v. Mayflower, Ins. Exchange, 93 Ariz. 287, 380 P.2d 145 (1963). Moreover, subsection (c) applies to the destruction of “property of others,” A.R.S. Sec. 28-1170(B)(2)(c). In this context, the property referred to is property owned by someone other than the named insured. Appellants also argue that because dealer recovered the amount of estimated damages less the $250 deductible, insurer’s claim as subrogee is limited to the $250 unrecovered by dealer. Payment to the insured by the insurer is no defense to the subrogation claim for the obvious reason that it is by the making of such payment that the insurer’s right of subrogation arises. Couch on Insurance, supra, Sec. 61:216. Appellee insurer is therefore subrogated to dealer’s contractual claim against borrowers. As subrogee, the insurer succeeds to the rights of the insured. Couch on Insurance, supra,' Sec. 61:34. Under Clause 6 of the agreement, if the vehicle is destroyed, the borrowers are obligated to pay dealer the market value of the vehicle. At trial, appellants did not contest the adequacy of the repair appraisal as evidence of the vehicle’s market value, nor did they raise the issue in their brief. Failure to raise an issue constitutes a waiver of that issue. Van Loan v. Van Loan, 116 Ariz. 272, 569 P.2d 214 (1977). Appellants stipulated that insurer actually paid the amount of the appraisal less $250 to dealer. Insurer is entitled to recover that amount under the contract. Dealer is entitled to recover the $250. Judgment is affirmed. RICHMOND, C. J., and HOWARD, J., concurring.

OPINION EUBANK, Presiding Judge. In this Special Action — Industrial Commission, the employer, Asarco, Inc., and the carrier, State Compensation Fund, seek review of an award of death benefits to respondent widow Leona M. Archer and her dependent children. The deceased employee, Donald R. Archer, was employed as a shovel repairman by petitioner employer, Asarco, Inc. On March 22,1977, Archer sustained a fatal myocardial infarction. Respondent widow, Leona Archer, filed a claim for death benefits on behalf of herself and her dependent children. Her claim was denied by the carrier, and following her request for hearing, the Industrial Commission conducted formal hearings on October 25 and December 15, 1977. Subsequently the hearing officer entered his findings and award in which he determined that the deceased’s myocardial infarction was causally related to his employment. After the award was affirmed by the hearing officer on review, this special action was perfected. The crucial finding in the hearing officer’s award in this case is finding number 11. In it, the hearing officer stated: The preponderance of the evidence establishes that the deceased’s myocardial infarction was in part caused by and due to the emotional stress experienced on his job. The evidence does not establish a significant causal relationship between the physical exertion and the myocardial infarction. On review, petitioners argue that the action of the hearing officer in finding a compensable claim due to emotional stress was, in this case, contrary to law. We agree, and therefore set aside the award. It is clear that the hearing officer did not rely on any precipitating event, whether physical or emotional, in finding that a job-related injury had occurred. We note that finding 11, set out above, states that the hearing officer did not rely on a physical exertion as a precipitating event, and this finding has not been challenged by the respondent widow. Additionally, it does not appear that the hearing officer relied on any specific job-related emotional event as a precipitating event. There was some evidence that on the day of his death the deceased “got mad” at work, prior to his death. However, the medical testimony indicates that the fatal myocardial infarction began some 18 hours before his death, at a time when he would have been at home. It therefore appears that the hearing officer’s award was based on his finding that work-related stress of a gradual nature contributed to the deceased’s advanced arterio sclerotic disease and therefore partially caused the fatal myocardial infarction. In her brief respondent cites the case of Fireman’s Fund Insurance Company v. Industrial Commission, 119 Ariz. 51, 579 P.2d 555 (1978), for the proposition that a condition brought about by gradual work-related emotional stress can be compensable under Arizona’s Workmen’s Compensation Law. However, the Arizona Supreme Court has, more recently, further explained its holding in Fireman's Fund. In Sloss v. Industrial Commission, 121 Ariz. 10, 588 P.2d 303, 304 (1978), the court stated: Fireman’s Fund does not mean that every emotional condition even though work-related is compensable. This court declined to accept the view expressed in Carter v. General Motors Corp., 361 Mich. 577, 106 N.W.2d 105 (1960) which would allow the ordinary stresses of employment to which all workers are subjected to provide a basis for workmen’s compensation for a work-related disabling nervous condition. Fireman’s Fund requires more than ordinary and usual job-related stress. To qualify as an injury by accident, the condition must have been produced by the unexpected, the unusual, or the extraordinary stress. In SIoss, supra, the claimant argued that he was entitled to workmen’s compensation because of a physical condition diagnosed as gastritis, which he claimed was caused by an emotional condition related to his everyday stress in his work as a highway patrolman. The Court sustained the hearing officer’s determination that the stresses to which the applicant had been exposed in his employment were the same as, and no greater than, those imposed on all other highway patrolmen in the same work. Therefore, the condition created by the stress did not constitute an injury under workmen’s compensation law. Consistent with the Supreme Court’s holding in SIoss, supra, is the view of this Court expressed in City of Phoenix v. Industrial Commission, 120 Ariz. 237, 585 P.2d 257, 261 (1978) where we stated: Were it otherwise, very few heart attacks, if any, suffered by people who were employed at the time of the attack, regardless of whether the incident occurred at work, at home, on vacation, or while they were asleep, would not be compensable under the workmen’s compensation statutes. While we do not minimize the stress imposed on Loy as a result of his job, we fail to see it as significantly greater than that imposed upon his fellow police officers on the beat, his superiors, court clerks who are put upon by not only their immediate supervisors but also by judges and irate lawyers, outside the apparent chain of command, etc. In fact, most jobs covered by workmen’s compensation today, in both the public sector and private industry, have a stress component of some nature, depending both upon the individual who holds the job and the nature of the job itself. The hearing officer in the case before us did not make a specific finding regarding whether the gradual work-related stress experienced by the deceased during his employment with petitioner ASARCO was “unexpected, unusual, or extraordinary” as compared to the everyday stress experienced on the job by all of his co-workers. Upon reviewing the record, we note that the gradual emotional stress experienced by the deceased appeared to center around his feeling that other workmen on the job were not working as hard as he was working. It is the responsibility of the hearing officer to make findings which dispose of all material issues. Cammeron v. Industrial Commission, 98 Ariz. 366, 405 P.2d 802 (1965); Garcia v. Industrial Commission, 26 Ariz.App. 313, 548 P.2d 26 (1976). The question of whether the everyday stress experienced by the deceased was any greater than that sustained by his co-workers is a material issue which should have been disposed of by a finding in this case. SIoss, supra. Since we have no authority to remand for specific findings and can only affirm the award or set it aside in its entirety, A.R.S. § 23-951(D), we set aside the award. A second issue raised is whether Memoranda Decisions of this Court can be properly cited by counsel as authority to the hearing officer in light of Rule 28(c), Arizona Rules of Civil Appellate Procedure, 17A A.R.S., forbidding their use as precedent. We hold that Memoranda Decisions should not be cited as authority by counsel. Further, we agree with State Bar of Arizona Ethics Opinions No. 78-4 (January 30, 1978), that it is a breach of professional ethics to cite such decisions other than for the purpose of establishing res judicata, collateral estoppel or the law of the case. Since the award involved herein is being set aside, we do not reach the question of appropriate sanctions. The award is set aside. WREN, J., and HENRY S. STEVENS, Judge, Retired, concurring.

OPINION RICHMOND, Chief Judge. Appellant was found guilty by a jury of two counts of aggravated assault and imposition of sentence was suspended for five years. He contends on appeal that (1) a knife, admitted into evidence, was not properly identified and (2) the prosecutor’s reference to his violent character was improper, requiring reversal. We find no merit in either contention for the following reasons: 1. Appellant’s failure to object to the knife’s admission into evidence precludes a claim of error on appeal. Furthermore, appellant himself identified the knife as the one he had in his possession during the fight which gave rise to the charges. 2. In closing argument the prosecutor stated: “. . . you had a chance to view the witnesses today and in this case, it’s very important. Which one of the witnesses, the State’s witnesses or the Defendant, Mr. Smith, had the violent temper? Which one had the outburst in Court?” We find no impropriety in this reference to appellant’s conduct, which apparently occurred in the presence of the jury. Where the accused has testified, the prosecutor may properly comment upon his demeanor in the courtroom. State v. Hale, 371 S.W.2d 249 (Mo.1963). Affirmed. HOWARD and HATHAWAY, JJ., concur.

OPINION HATHAWAY, Judge. Appellant seeks reversal of his convictions of first degree burglary and aggravated assault. We affirm. The facts are as follows. An assailant attacked the victim in her home at approximately 8:25 p. m. on September 21, 1976. The assailant fled when the victim screamed, but after the victim ran outside for help, he attacked her again by the side of the house. The assailant did not sexually molest her. Police arrived at the victim’s home shortly after the attacks. The victim described the assailant as a young, black male of medium build and height who wore a light shirt, dark pants and a blue knit hat with a green stripe. The police discovered footprints by the side of the house where the victim had been attacked. The prints had distinctive characteristics because of the design and the pattern of wear of the sole. The police called a special dog-handling unit to the scene. The handler brought the dog to the prints, and the dog tracked them to a nearby housing project. The police discovered prints similar to those near the victim’s house as they followed the dog. A car patrol reached the project first. The police spotted appellant seated on an electrical box located in a mall between the buildings of the project. They approached appellant who was wearing a light shirt, dark pants and a green knit cap with a blue stripe and noticed he was barefoot. When asked where his shoes were, he pointed to his sister’s apartment where the shoes were leaning against the wall. One officer walked over to the shoes, examined them, and made a gesture indicating that he thought the shoes matched the prints. At approximately the same time, the dog-handling unit arrived and the dog alerted on appellant. The police then arrested him. Appellant raises three issues on appeal: (1) whether the prosecution proved beyond a reasonable doubt that the burglary occurred in the nighttime within the meaning of A.R.S. Sec. 13-302; (2) whether examination of his shoes was an unreasonable search and seizure within the meaning of the Fourth Amendment to the United States Constitution; (3) whether the trial court erred in denying his motions for mistrial. 1. A.R.S. Sec. 13-302, burglary in the first degree, requires proof that the burglary occurred in the nighttime. Appellant contends that because the prosecution did not prove the time the sun set on September 21, 1976, it failed to prove beyond a reasonable doubt that the burglary occurred in the nighttime. We disagree. A.R.S. Sec. 13-301(2) defines “nighttime” as “the period between sunset and sunrise”. The prosecution, however, need not prove the time the sun set if there is evidence sufficient to permit the jury to conclude beyond a reasonable doubt that the burglary occurred' after sunset. State v. Daniels, 106 Ariz. 497, 478 P.2d 522 (1970). The victim testified that the assault occurred at about 8:25 p. m. and that it was then dark outside. This is sufficient to permit the jury to conclude beyond a reasonable doubt that the burglary occurred in the nighttime. 2. Appellant contends that the examination of his shoes was an unreasonable search and seizure. We disagree. There was no Fourth Amendment search unless appellant had a reasonable expectation of privacy with respect to the physical characteristics of the soles of his shoes. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Dugan, 113 Ariz. 354, 555 P.2d 108 .(1976). Appellant did not have the required reasonable expectation. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), is apposite. In Dionisio, a grand jury subpoenaed respondent and several others seeking voice exemplars for comparison with incriminating recordings. Respondent refused to give an exemplar claiming that requiring him to produce an exemplar constituted a Fourth Amendment search. The Supreme Court held that there was no search because one does not have a reasonable expectation of privacy with respect to the physical characteristics of one’s voice. Dionisio, supra. Examining the physical characteristics of the soles of appellant’s shoes is like taking a voice exemplar. The police sought to compare the shoes with footprints just as the grand jury in Dionisio sought to compare the voice exemplar with recordings. Examination of such physical characteristics “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search”. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), quoted in Dionisio, supra, 410 U.S. at 15, 93 S.Ct. at 772, 35 L.Ed.2d at 80. Nor does this case involve the dragnet procedure condemned in Davis, supra. Although we express no opinion regarding whether the police had probable cause to arrest appellant prior to examining the shoes, they did not investigate him at random. The victim’s description and the dog’s success in tracking appellant from the scene of the assault to the housing project sufficiently tied appellant to the crime for purposes of distinguishing Davis. 3. Appellant contends that the trial court erred in not granting his motions for mistrial. The alleged grounds for mistrial are as follows: (A) In violation of the court’s ruling on appellant’s motion in limine, evidence was introduced that the sexual assault team responded to the victim’s call to the police. (B) In violation of another ruling on a motion in limine, the police witnesses testified that in their opinion appellant’s shoes matched the footprints. (C) There was insufficient foundation as to the reliability of the dog used to track appellant. The trial court has broad discretion as to granting a mistrial, and its refusal to grant one will be reversed only if the conduct urged as grounds for a mistrial was palpably improper and clearly injurious. State v. Scott, 24 Ariz.App. 203, 537 P.2d 40 (1975). Applying this standard, we find no abuse of discretion. (A) The record is unclear whether the trial court ordered the prosecution not to introduce evidence that the sexual assault team responded to the victim’s call to the police. Assuming arguendo that it had done so, defense counsel on cross-examination elicited the response which is now complained of. Appellant cannot claim that the prosecution violated an order or that the testimony was clearly injurious. (B) The trial court ordered the prosecution to instruct its police witnesses to limit their testimony to observations. This order conforms to the requirements of State v. Wynn, 114 Ariz. 561, 562 P.2d 734 (App.1977). Appellant contends that in three instances, police witnesses expressed their opinion that the shoes and footprints matched and that this violation required a mistrial. The first instance involved Officer Whit-ten’s testimony that after Officer Malm examined the shoes, he made a gesture indicating that the shoes matched the prints. Appellant made a general objection and asked that the testimony be stricken and that the jury be instructed to disregard it. The trial court overruled the objection and denied the motions. Because appellant failed to make a proper objection, the trial court did not err in its ruling. State v. Taylor, 99 Ariz. 85, 407 P.2d 59 (1965). The second instance involved Officer Malm’s testimony. He restricted his testimony to his observations. There is no error and therefore no basis for a mistrial. The third instance involved Officer Morris’ testimony that footprints discovered near the housing project were the same as the prints discovered near the victim’s house. This officer was the handler of the dog. He did not testify that the footprints matched appellant’s shoes. He merely stated that the same footprints that he was following led up to the sidewalk area in front of the housing project. The trial court sustained appellant’s objection and advised the jury to disregard the opinion. There is no error and therefore no basis for mistrial. (C) Appellant contends that there was insufficient foundation for the reliability of the dog used to track him and that in the absence of a proper foundation, the testimony that the dog tracked appellant was so inherently prejudicial that a mistrial should have been granted. We disagree. The majority view is that evidence of dog tracking is admissible provided there is a sufficient foundation regarding the dog’s reliability. A proper foundation requires a showing of the training and qualifications of the dog and the circumstances of the tracking. Annot., 18 A.L.R.3d 1221. There is evidence of the dog’s training, the handler’s experience, the preservation of the tracks at the victim’s home, the manner in which the dog was placed on the trail, and the actual course of tracking. Appellant’s only complaint is that the record of the dog’s past performance did not include past failures. Although a record of failures should be kept to substantiate the continued reliability of the dog, this defect alone did not make the foundation insufficient. Affirmed. RICHMOND, C. J., and HOWARD, J., concur.

OPINION HOWARD, Judge. Prior to the effective date of Arizona’s new Criminal Code, October 1, 1978, could the trial court place a defendant on probation if he is already serving a term in the Arizona State Prison for another offense? That is the issue to be determined here. The record shows that on March 6, 1975 the Honorable Mary Anne Richey, Judge of the Pima County Superior Court, sentenced appellant to the Arizona State Prison for a term of not less than two nor more than four years. Approximately two months later she placed appellant on five years’ probation for a separate offense, unlawful possession of narcotics for sale. She ordered that the 30-day incarceration mandated as a condition of probation for this particular narcotics offense be served concurrently with the term he was then serving in prison. The trial court also noted that appellant would be released from prison prior to expiration of the probation period and that he should immediately report to the adult probation office upon release. On August 30, 1977, subsequent to appellant’s release from prison on parole and his successful completion of parole, a petition was filed to revoke his probation in the narcotics case. At the violation hearing appellant contended that the proceeding should be dismissed because the probation violated the holdings in State v. Carter, 116 Ariz. 595, 570 P.2d 763 (1977) and State v. Pakula, 113 Ariz. 122, 547 P.2d 476 (1976). Specifically, he asserted the trial court could not mix probation with a prison term. The trial court disagreed, ordered him to be confined in the county jail for six months and continued probation. In Pakula the defendant was sentenced to prison on one count of a multiple-count information. He was placed on probation for three years on each of the remaining ten counts to run consecutively. The Supreme Court first addressed the issue of whether a trial court could impose consecutive periods of probation. The Court held that it could not because: “There is no express provision by statute or rule which permits the superior court, on multiple counts in the same information, to impose consecutive periods of probation.” 113 Ariz. at 124, 547 P.2d at 478. The Court next discussed the propriety of mixing confinement in the state prison with probation following the imprisonment and held that such a sentence structure was improper. The state asserts that the Pakula rule only applies when there is a multiple-count indictment or information. But does it? Turning to the rationale enunciated in Pakula for the rule that confinement and probation cannot be mixed, we find this language: “It also appears that the legislative policy is that courts should either confine or suspend a sentence but not both.” 113 Ariz. at 125, 547 P.2d at 479. This statement suggests that the Court is referring to the multiple-count case, but there is other language in the opinion which casts doubt on such a conclusion: “When a trial court attempts to mix periods of state imprisonment followed by probation it places the court in possible conflicts with the executive departments since the control of the length and type of confinement has been granted to that department. The parole board can grant parole with supervision in the corrections department, and the efforts of the executive department in a rehabilitation effort may not be in harmony with the objectives of the court’s probation department. The executive could permit the defendant to reside outside of the state, but this could conflict with the intention of the court to effect restitution.” 113 Ariz. at 125, 547 P.2d at 479. The Court then concludes that the trial court cannot impose a prison sentence followed by probation for two reasons: (1) probation is under the supervision of the court and confinement is under the supervision of the executive department and (2) there is no specific authority for such a sentence. In State v. Carter, supra, the Court held that their reasoning in Pakula is equally applicable to concurrent terms of prison and probation and that such mixture of confinement and probation is improper. See also State v. Jordan, 120 Ariz. 97, 584 P.2d 561 (1978). We note that Pakula, Carter and Jordan all involved multiple-count indictments or informations. What touchstone are we to apply as the result of these cases? Is it the multiple-count indictment? Is it the conflict between the judicial and executive branches of the government? Or, is it the lack of specific authority? If the test is whether there will be a conflict between two branches of the state government, then a trial judge cannot sentence a person to prison for one offense if he is on probation for another separate offense and the judge who placed him on probation refuses to revoke it because that would result in concurrent prison and probation sentences, which were condemned in Carter. Such a conclusion, however, would be absurd. It would give a defendant a license to commit crimes. In State v. Patton, 120 Ariz. 386, 586 P.2d 635 (1978) we have the reverse of the situation here. There, defendant was placed on probation for five years by a trial judge who had knowledge of a pending burglary charge. Five months later he was convicted of the burglary charge and sentenced to the state prison. Although the issue in Patton was whether the second judge abused his discretion in not placing the defendant on probation in view of the action of the first judge, the fact that the defendant was simultaneously on probation and serving a prison term was evident. Yet, the Court in Patton held that the sentence imposed was permitted, stating: “The granting of probation by a judge on one charge is in no way binding on another judge who is sentencing a defendant on a totally unrelated charge.” 586 P.2d at 639. Patton lends weight to the conclusion that the determinative criterion is the multiple-count indictment. But there are further questions. Suppose a defendant has been charged with two separate crimes, which have been joined in a two-count indictment pursuant to Rule 13.3,17 A.R.C.P., and suppose pursuant to Rule 13.4 they are severed for trial. He goes to trial on Count One and after being found guilty is placed on probation. Two months later he goes to trial before another judge on Count Two and is found guilty. Can he be sentenced to prison? Does the fact that the judges are different make any difference? Has he waived the benefits of Pakula, to-wit either to be put on probation or in prison, by asking for a severance? Can we conclude that the multiple-count indictment is determinative or does the illegality of the sentences in Pakula, Carter and Jordan rest on some additional factor? We believe that it does and that these cases stand for the proposition that when a trial judge sentenced a defendant at the same time for more than one offense he had to either sentence him to prison or put him on probation, but he could not do both. The trial court did not violate the mandate of Pakula or Carter here. Affirmed. HATHAWAY, J., and RICHMOND, C. J., concurring. . A.R.S. Sec. 13-903(D) now provides: “If probation is imposed on one who at the time is serving a sentence of imprisonment imposed on a different conviction, service of the sentence of imprisonment shall not satisfy the probation.”

OPINION HOWARD, Judge. This is an appeal from an order granting a motion to suppress. The issue is whether the information supplied by confidential informants was sufficiently corroborated by the independent observations of the arresting officer so as to meet the standards of probable cause set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). We conclude that it was and the motion to suppress should not have been granted. On January 25, 1978, Tucson Police Officers William Hurguy and Michael Mauser were advised by their supervisor that an unidentified informant had provided information concerning an armed robbery which was to occur later that evening. The tip indicated that sometime after dark on this date the Watkins brothers, Larry and Tony, would go to a home at 423 W. Thurber in Tucson, driving a white over blue 1975 Monte Carlo. The Watkins brothers were going to be armed with rifles and would be wearing ski masks. Their purpose was to “rip off” the occupants of the home at 423 W. Thurber while attempting to either buy or sell two ounces of heroin. Sometime between 8:00 and 8:30 p. m. on January 25, Officers Hurguy and Mauser, assisted by other members of the Tucson Police Department, set up a surveillance of the house at 423 W. Thurber. This house is situated on the southwest quadrant of Thurber, which runs east and west, and Oracle Road, which runs north and south. Sometime between 8:00 and 8:45 p. m. the occupants of 423 W. Thurber were seen to leave in a small compact pickup truck and return ten minutes later. At approximately 8:45 p. m. the officers observed a vehicle which matched the informant’s description approach the area. The vehicle was northbound on Oracle Road when it turned west onto Thurber. It passed the house and continued west until it reached Fairview Avenue, where it made a U-turn and came back east again on Thurber. Approximately five or six houses away from 423 W. Thurber, the vehicle’s headlights were turned off and it stopped briefly. The vehicle then started up and slowed down as it passed the house at 423 W. Thurber. It then left the scene southbound on Oracle Road. At approximately 9:30 p. m., the surveillance group saw the lights at 423 W. Thurber go out. A half hour later the automobile observed earlier again approached Thurber and Oracle Road. It went west on Thurber towards Fairview, again made a U-turn, and headed towards Oracle Road. As it approached the 423 W. Thurber address it slowed and stopped. It then turned into the driveway of the business located directly across the street from 423 W. Thurber, backed out and parallel parked with the lights out along the curb across the street from 423 W. Thurber, facing west. The two occupants of the vehicle got out and the driver was immediately identified as Larry Watkins. They engaged in some type of unidentified movement, and then proceeded across the street towards the home at 423 W. Thurber, approaching it on the north side. Because the lights had been turned off, the officers lost sight of them when they entered the shadows of the house. Approximately ten to fifteen minutes later Larry Watkins’ companion, later identified as Anthony Watkins, was observed coming out of the eastside door of the still-darkened house. He went across the street to the automobile, and then backed it to the door of the house. A short time later he was seen carrying out what appeared to be a television set and a stereo. These items were placed in the back seat and trunk of the vehicle. Shortly thereafter, Anthony and Larry Watkins left, driving west on Thurber Road. They were stopped and arrested in the vicinity of Fairview and Thurber. Upon contacting the occupants of 423 W. Thurber it was determined that they had been robbed by two men, one of whom had a rifle. A stereo and television were taken. Subsequent investigation disclosed a loaded rifle in appellees’ vehicle. No ski masks or narcotics were found. Aguilar and Spinelli invalidate a search warrant when the affidavit fails to show (1) that the informer was in fact a reliable person and (2) that the underlying circumstances by which he obtained his information were such that it was probably accurate. A warrantless search or a warrantless arrest requires the same investigative basis in fact or reasonable conjecture as does an arrest or a search under a warrant. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The rule governing the facts of the case at bench is well expressed by Judge Friendly in United States v. Canieso, 470 F.2d 1224 (2nd Cir.1972): “The lesson we draw from all this is that Aguilar applies with full rigor only when the search warrant or the arrest depends solely on the informer’s tip. When a tip not meeting the Aguilar test has generated police investigation and this has developed significant corroboration or other ‘probative indications of criminal activity along the lines suggested by the informant,’ . . . the tip, even though not qualifying under Aguilar, may be used to give such additional color as is needed to elevate the information acquired by police observation above the floor required for probable cause.” (Emphasis in original) 470 F.2d at 1231. Arizona has not been silent on this point. In the case of State v. Miller, 112 Ariz. 95, 537 P.2d 965 (1975) the court stated: “It is required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), that an informant must be credible or reliable and that the circumstances underlying his information be stated. A law enforcement officer may go to the scene and wait to see if the situation unfolds as forewarned. State v. Aikins, 17 Ariz.App. 328, 497 P.2d 835 (1972). The underlying circumstances are then verified by the personal observations of the officers. State v. Aikins, 18 Ariz. App. 440, 503 P.2d 398 (1972).” 112 Ariz. at 97, 537 P.2d at 967. Appellees have seized upon certain language in State v. Ponce, 16 Ariz.App. 122, 491 P.2d 845 (1971) as justification for the trial court’s suppression of the evidence. In Ponce the court stated: “For a law enforcement officer to establish probable cause based on information furnished by an informer, the two-pronged test of Aguilar must be satisfied. First, the facts must show that the informer is ‘credible’ or his information is ‘reliable’. Second, the underlying circumstances on which the informer based his information must be set forth. When a showing of the underlying circumstances is not made, the basis of knowledge can be supplied by the investigating officer, if by his own observations, he is able to sufficiently verify all of the information contained in the tip. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). However, it is not essential that the information supplied by the informant be verified in its entirety by the personal observation of the officer. The actual fact of the alleged activity does not have to be personally verified by the officer; rather the facts and circumstances must be such that the officer can draw an inference that illegal activity is afoot. See Draper, supra.” (Emphasis added) (footnote omitted) 16 Ariz.App. at 123, 491 P.2d at 846. Since the officers did not see them wearing ski masks and carrying rifles as per the information from the confidential informant, appellees contend there was no probable cause because all the information was not corroborated as required by State v. Ponce, supra. We do not agree. Appellees misread Ponce. In fact, the law is otherwise. An undisclosed informant’s tip found wanting under the Aguilar test may provide the basis for a finding of probable cause if parts of it have been corroborated by independent sources. United States v. Anderson, supra; see also, Spinelli v. United States, 393 U.S. at 415, 89 S.Ct. 584; United States v. Brennan, 538 F.2d 711 at 720 (5th Cir. 1976), cert. den., 429 U.S. 1092, 97 S.Ct. 1104, 51 L.Ed.2d 538; United States v. Larkin, 510 F.2d 13 at 15 (9th Cir. 1974). Although there is no concensus on the type of information required to corroborate an informant’s tip, it is generally agreed that the better practice is to obtain corroboration of incriminating details. United States v. Brennan, supra; Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741 (1974). In People v. Mercado, 45 A.D.2d 699, 356 N.Y.S.2d 868 (1974) the court observed the following on this issue: “A well considered analysis in the Brooklyn Law Review, ‘The Second Circuit Review, 1972-73 Term’, Vol. XL, Spring 1974, page 1180 on ‘The Use of Informer Tips in Establishing Probable Cause For Search or Arrest—United States v. Canieso, 470 F.2d 1224 (2d Cir. 1972)’ by Barry M. Goldstein considers that recent case and the underlying United States Supreme Court decisions and concludes that: “When the tip cannot be made to fit within the Aguilar or Spinelli standards then the corroboration must involve more than a verification of innocent details. It must provide “proba tive indications of criminal activity” consistent with the information suggested in the tip. In such a ease probable cause is found to exist, in the totality of the circumstances, when all relevant factors are considered.’ (page 1188)” 356 N.Y.S.2d at 871. However, some courts have held that an accumulation of innocent detail conforming to the original tip has corroborative value. See United States v. Holliday, 474 F.2d 320 (10th Cir. 1973); Thompson v. White, 391 F.2d 724 (5th Cir. 1968), on remand, 406 F.2d 1176 (1969). Assuming arguendo that the rule in this state is that the corroboration must provide “probative indications of criminal activity”, we find that the facts here amply demonstrate such conduct. The order granting the motion to suppress is vacated and the case is remanded to the trial court for further proceedings. HATHAWAY, J., and RICHMOND, C. J., concurring. . In accord, United States v. Myers, 176 U.S. App.D.C. 76, 538 F.2d 424 (1976), cert. den., 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584; United States v. Anderson, 500 F.2d 1311 (5th Cir. 1974); United States v. Lopez-Ortiz, 492 F.2d 109 (5th Cir. 1974), cert. den., 419 U.S. 1052, 95 S.Ct. 630, 42 L.Ed.2d 647; People v. Orozco, 402 Mich. 849, 261 N.W.2d 532 (1978); People v. Walker, 401 Mich. 572, 259 N.W.2d 1 (1977); see, Rebell, The Undisclosed Informant and the Fourth Amendment: A Search for Meaningful Standards, 81 Yale L.J. 703, 715-717 (1972); see also, Note, The Informer’s Tip As Probable Cause For Search Or Arrest, 54 Cornell L.J. 958, 967 (1969).

STRUCKMEYER, Vice Chief Justice. This is an original proceeding for disciplinary action against Charles F. Stout, a member of the State Bar of Arizona. Stout was charged with eighteen violations of the Code of Professional Responsibility, including allegations that he allowed a default judgment to be taken against a client while representing to her that he was negotiating a settlement, that he allowed the statute of limitations to run in a personal injury case which he had been employed to handle, and that he neglected numerous probate matters to the damage of the estates. The Local Administrative Committee made the following findings: “The Committee finds that the Respondent Charles F. Stout has failed to maintain such special mental fitness as would have entitled him to admission to the State Bar in the first instance and has committed acts and omissions related to the practice of law indicating mental unfitness to continue the practice of law in accordance with the provisions of Rule 42(a)(3) and (4), Rules of the Supreme Court.” The testimony of Edward Meshorer, M.D., a specialist in psychiatry was to the effect that respondent’s misconduct was a result of his incapacity to function as an attorney and that in his opinion respondent “should really never practice law.” Respondent does not contest the truth of the charges; he objects only to the recommendation of the State Bar Board of Governors for indefinite suspension. His position is that indefinite suspension is unwarranted and unduly harsh in the light of the circumstances of the case. He argues that since he has already been suspended from the practice of law for nonpayment of his State Bar membership fees, this Court should merely impose “non-public censure, combined with an order that Respondent not be readmitted to the State Bar without first demonstrating a complete recovery from his mental illness.” We disagree with respondent’s assertion that his proposed sanctions will adequately safeguard the public. Suspension for lack of mental fitness is not akin to suspension for failure to pay bar dues. A member of the bar may be reinstated within ten years of his suspension for failure to pay dues by remitting an amount “which the applicant would have been required to pay had he been an active member during the period of suspension” and after this Court reviews his moral fitness and his activities and employment during his suspension. Rule 40, Rules of the Supreme Court, 17A A.R.S. A member suspended for mental unfitness, however, must comply with the more stringent procedures for reinstatement as set forth in Rule 43. We conclude, therefore, that respondent should be indefinitely suspended pursuant to Rule 42. We can be sympathetic with respondent’s personal problems, but: “* * * our duty lies in the assurance that the public will be protected in the performance of the high duties of the attorney rather than in an analysis of the reasons for his delinquency. Our primary concern must be the fulfillment of proper professional standards, whatever the unfortunate cause, emotional or otherwise, for the attorney’s failure to do so.” Grove v. State Bar of California, 66 Cal.2d 680, 685, 58 Cal.Rptr. 564, 567, 427 P.2d 164, 167 (1967). We are also asked to make the discipline in this case “nonpublic.” We think, however, that there is a public purpose to be satisfied here. Discipline is imposed not to punish the erring attorney, but to protect the public. See Matter of Watson, 118 Ariz. 70, 574 P.2d 1289 (1977); Matter of Lurie, 113 Ariz. 95, 546 P.2d 1126 (1976). But in addition to the protection of the public, discipline is imposed “to deter other lawyers from the temptation to violate their ethics.” In re Peterson, 108 Ariz. 255, 257, 495 P.2d 851, 853 (1972). We do not feel it is appropriate to establish as a precedent that an attorney, when faced with a formal complaint alleging numerous violations of the Code of Professional Responsibility, can escape public censure by urging his misconduct was the result of a mental condition. Not only does public censure operate as a deterrent against the misconduct of others, cf. In re Streater, 262 Minn. 538, 115 N.W.2d 729 (1962), but since the practice of law is a self-regulating profession, we deem it appropriate that the public be advised that the profession is acting to protect it from miscreants. It is therefore ordered that respondent Charles F. Stout be indefinitely suspended from the practice of law in this state, commencing upon the issuance of the mandate herein. It is further ordered that respondent pay costs in the sum of $558.23. CAMERON, C. J., and HAYS and HOLO-HAN, JJ., concur.

OPINION SCHROEDER, Judge. This appeal concerns the distribution of military retirement pay upon dissolution of a marriage. It requires us to consider the applicability of the “quasi-community property” provision of A.R.S. § 25-318 to pension credits earned in other jurisdictions prior to the date the provision became effective in 1973. The parties were married in 1957 while the appellant-husband was stationed with the Air Force in New Mexico. Appellant remained with the Air Force throughout the duration of the marriage, and the coupled lived in many jurisdictions where he was stationed. These included Wisconsin, Illinois, Germany and Korea. In January, 1973, the parties moved to Arizona and the marriage was dissolved in this State in March, 1974. The dissolution decree was silent as to appellant’s retirement pay. In November, 1974, appellant retired from the Air Force and began receiving retirement pay which had been earned throughout the previous 20 years. The present proceedings were subsequently instituted by the appellee-wife with the filing of a petition for modification of the dissolution decree to award her a share of the retirement pay as community property. The trial court treated V20 of the pension, representing the credits earned by the husband during the three years before the marriage and the short period after the dissolution, as his separate property. It treated 17/2o of the pay, representing the credits earned during the 17 years of the marriage, as community property. This resulted in an award to the wife of one-half of 17/2o of the pay, or approximately 43 percent. The result reached by the trial court is fully consistent with the pertinent portion of A.R.S. § 25-318 which provides that “property acquired by either spouse outside the state shall be deemed to be community property if said property would have been community property if acquired in this state.” See also, Everson v. Everson, 24 Ariz.App. 239, 244, 537 P.2d 624, 629 (1975), holding that pension plans are a form of compensation and that the portion of the plan earned during coverture is property of the community. Before the trial court and in the initial briefs filed in this Court, appellant advanced two principal arguments in opposition to the trial court’s decision. The first argument was that the wife could claim no interest in the pension because appellant, at the time of the dissolution, had not yet retired and had not yet acquired a vested right in the retirement pay. This issue has subsequently been answered by decisions of our Supreme Court holding that the portion of retirement pay attributable to efforts during the marriage should be deemed community property even though the pension had not yet vested. Van Loan v. Van Loan, 116 Ariz. 272, 569 P.2d 214 (1977); Neal v. Neal, 116 Ariz. 590, 570 P.2d 758 (1977). Appellant’s second argument was that, because at the time most of the credits were earned, the parties were domiciled in non-community property jurisdictions, the trial court erred in treating the credits earned during the marriage as community property and that the court should have awarded the bulk of the pension to the appellant as his separate property. Neither the Supreme Court’s decision in Van Loan or Neal discussed any issue with respect to where the pension credits were earned. However, this Court in Woodward v. Woodward, 117 Ariz. 148, 571 P.2d 294 (1977), raised a question in that connection. The Court in Woodward pointed out that A.R.S. § 25-318 changed the usual conflict of law rule which would have applied the law of the jurisdiction of the domicile of the parties at the time of the acquisition of the property, and not Arizona law, to characterize it as separate or community. The Court’s opinion went on to state that the trial court in that case should decide whether the statute was to have “retroactive application” to property acquired prior to its effective date, August 8, 1973. That issue must be decided in this appeal. Because the decisions in Van Loan, Neal, and Woodward, were all filed after the briefs were initially filed in this case, we ask the parties to submit supplemental briefs taking them into account. Appellant’s principal contention in his supplemental brief is that the legislature did not intend the relevant provision of A.R.S. § 25-318 to apply retroactively to property acquired before its effective date. Consideration of this question requires some understanding of the legal developments prior to the enactment of the statute, and since our provision is similar to California’s, Cal. [Civil] Code § 4803 (West), formerly § 140.5, the California experience in this area is instructive. In 1961 California enacted a comprehensive quasi-community property statute designed to change traditional principles of distribution of property originally acquired in other states. California, prior to the adoption and judicial approval of that statute, followed the principle, similar to Arizona’s traditional rule, that the property interests of a husband and wife in personal property were governed by the laws of the domicile of acquisition. E. g., Schecter v. Superior Court, 49 Cal.2d 3, 314 P.2d 10 (1957). In a divorce, this principle was applied to characterize the property as either separate or community. Thus, property acquired, for example, in the name of the husband in a common law jurisdiction, was characterized as his separate property even though it represented the earning efforts of both spouses. Upon divorce of the parties in California after establishing a California domicile, the California courts would then, however, apply California law to distribute that property. E. g., Latterner v. Latterner, 121 Cal.App. 298, 8 P.2d 870 (1932). Property characterized as separate would be awarded to the acquiring spouse because under California law, like Arizona’s, separate property is not divisible upon divorce. E. g., Machado v. Machado, 58 Cal.2d 501, 25 Cal.Rptr. 87, 375 P.2d 55 (1962). A typical, harsh example of the application of these principles can be described as follows. The husband and wife have both worked on the farm in a common law jurisdiction owned in the husband’s name. The farm is then sold, the parties move to California, and are divorced. The wife is awarded no portion of the proceeds of the sale because it is characterized as the husband’s separate property. This result would follow even though had the property been acquired in California it would have been community property and even though under the law of the jurisdiction in which the property was acquired, the wife or non-acquiring spouse might well have been awarded a share of the proceeds upon a divorce under the laws of that state. The anomalies of this system have been described as follows: “California courts classify the marital property according to the laws of the domicile of acquisition, but then apply California law governing that class of property. This failure to consider that property acquired by persons in a common law state, whether before or after marriage, has different marital property characteristics than any property acquired by a husband or wife while domiciled in California results in the courts applying neither the law of the common law state of acquisition nor the law of California. The nonacquiring spouse is thus denied the protection of both marital property systems.” Comment, Marital Property and the Conflict of Laws: The Constitutionality of the “Quasi-Community Property” Legislation, 54 Cal.L.Rev. 252, 254-55 (1966) (footnotes omitted). A cure to the resulting inequities was sought by the California legislature through enactment of statutes requiring the community property law of California to be applied both to characterize property as separate or community and to govern its distribution. Two such legislative attempts, in 1917 and 1923, were nullified by the California courts. Estate of Thornton, 1 Cal.2d 1, 33 P.2d 1 (1934); Estate of Drishaus, 199 Cal. 369, 249 P. 515 (1926). In both cases, the underlying rationale of the majority was drawn from an earlier case, Spreckels v. Spreckels, 116 Cal. 339, 48 P. 228 (1897), which was said to stand for the principle that, as a matter of constitutional law, retroactive application of legislation affecting a spouse’s interests in community property would constitute an invalid impairment of a vested right. See generally, Note, Retroactive Application of California’s Community Property Statutes, 18 Stan.L.Rev. 514, 515 (1966). The constitutional underpinning of these decisions came under constant attack by scholars. E. g,, Armstrong, “Prospective” Application of Changes in Community Property Control — Rule of Property or Constitutional Necessity?, 33 Cal.L.Rev. 476 (1945); Schreter, “Quasi-Community Property” in the Conflict of Laws, 50 Cal.L.Rev. 206 (1962). This criticism was shared by Justice Traynor in Boyd v. Oser, 23 Cal.2d 613, 145 P.2d 312 (1944) (concurring opinion): “The decisions that existing statutes changing the rights of husbands and wives in community property can have no retroactive application have become a rule of property in this state and should not now be overruled. It is my opinion, however, that the constitutional theory on which they are based is unsound. . That theory has not become a rule of property and should not invalidate future legislation in this field intended by the Legislature to operate retroactively.” 145 P.2d at 318 (citations omitted). Moreover, the entire theory of vested rights as determining choice of laws principles have been substantially repudiated in recent years. See generally, Restatement (Second) of Conflict of Laws § 6 (1971); Cavers, A Critique of the Choice-of-Law Problem, 47 Harv.L.Rev. 173 (1933); Currie, On the Displacement of the Law of the Forum, 58 Colum.L.Rev. 964 (1958); Currie, Notes on Methods and Objectives in the Conflict of Laws, 1959 Duke L.J. 171. The third legislative effort, in 1961, was, however, approved by the California Supreme Court in a decision which upheld the statute’s applicability to all property, regardless of the date of its acquisition, involved in divorces filed after the time of the effective date of the legislation. Addison v. Addison, 62 Cal.2d 558, 43 Cal.Rptr. 97, 399 P.2d 897 (1965). The court in Addison held that to the extent application of such a law might be said to interfere with “vested rights” the interest of the state in overseeing an orderly and equitable distribution of property upon divorce justified it. “ ‘Vested rights, of course, may be impaired “with due process of law” under many circumstances. The state’s inherent sovereign power includes the so called “police power” right to interfere with vested property rights whenever reasonably necessary to the protection of the health, safety, morals, and general well being of the people. The annals of constitutional law are replete with decisions approving, as constitutionally proper, the impairing of, and even the complete confiscation of, property rights when compelling public interest justified it. ****** The constitutional question, on principle, therefore, would seem to be, not whether a vested right is impaired by a marital property law change, but whether such a change reasonably could be believed to be sufficiently necessary to the public welfare as to justify the impairment.’ ” 43 Cal.Rptr. at 102, 399 P.2d at 902, citing, Armstrong, “Prospective” Application of Changes in Community Property Control — Rules of Property or Constitutional Necessity?, 33 Cal.L.Rev. 476, 495-96 (1945). The court then weighed the interest of California in determining the rights of the parties in a dissolution of marriage. The court concluded that “where the innocent party would otherwise be left unprotected the state has a very substantial interest and one sufficient to provide for a fair and equitable distribution of the marital property without running afoul of the due process clause of the Fourteenth Amendment.” Id. 43 Cal.Rptr. at 103, 399 P.2d at 903. Subsequent California cases have reaffirmed that view. In re Marriage of Bouquet, 16 Cal.3d 583, 128 Cal.Rptr. 427, 546 P.2d 1371 (1976); In re Marriage of Walton, 28 Cal.App.3d 108, 104 Cal.Rptr. 472 (1972). The cases have progressively eaten away the vitality of the original Spreckels doctrine in California. See Reppy, Retroactivity of the 1975 California Community Property Reforms, 48 So.Cal.L.Rev. 977, 1083 (1975); Note, Retroactive Application of California’s Community Property Statutes, 18 Stan.L.Rev. 514, 521 (1966). Arizona, prior to the 1973 amendments, had a somewhat different experience. In 1969, Division Two of this Court decided Rau v. Rau, 6 Ariz.App. 362, 432 P.2d 910 (1967). Its decision adhered to the traditional principle that property should be characterized as community or separate in accordance with the law of the domicile of acquisition. However, it rejected any requirement that the property then be distributed in a divorce in accordance with Arizona law which proscribes division of property characterized as separate. Rather, the Court in Rau held that an Arizona court in a divorce proceeding should sit as a court of the state of acquisition, and divide the property in accordance with that law. Thus, the Court held that the property in that case, acquired in Illinois, was separate under Illinois law, but that Illinois would have permitted awarding the non-acquiring spouse, the wife, a share in the property upon divorce. The Court, therefore, granted the wife an interest in the husband’s property. The opinion viewed the question as one of choice of law, and refused to hold that the husband had acquired a vested right to the property which precluded its division. In awarding the property according to Illinois Law, the Court also rejected Latterner v. Latterner, 121 Cal.App. 298, 8 P.2d 870 (1932), in which the court had applied California law in distributing property acquired elsewhere, finding it unpersuasive in its reasoning. The principles enunciated in Rau, while theoretically consistent, are, nevertheless, fraught with real practical problems. Under Rau, the Arizona Court sits as a court of at least 50 jurisdictions, not merely in respect to characterizing rights to property on acquisition, but in characterizing rights on dissolution of marriage. In a specific case, such as the Rau case itself, the problems may be relatively simple because the bulk of the property was acquired in only one state other than Arizona. But with increased population mobility, our courts are frequently faced with cases where property has been acquired in many different jurisdictions. Each has its own system and means of achieving equitable distribution upon dissolution of marriage assuming that all property is divided in accordance with that system. However, when property has been acquired in many domiciliary jurisdictions, literal application of Rau results in a patchwork distribution of property which brings about an overall equitable distribution only by coincidence. Some of the problems associated with this approach are pointed out in W. Reppy & W. De Funiak, Community Property in the United States, at 489 (1975). In 1973, Arizona substantially revised its divorce status. The amendments included the provision with which we are concerned in A.R.S. § 25-318. That provision substitutes, for traditional choice of law rules, the principle that all property acquired in other states should be treated upon dissolution as if the property had been acquired in Arizona. The amendment thus permits application of one law, Arizona’s, to achieve an equitable distribution of property when the marriage is dissolved. The provision was added after the California Supreme Court’s decision in Addison, and after Rau v. Rau. As described by one commentator its adoption is in effect an abandonment of Rau in favor of quasi-community property. Id. at 469. We turn now to the specific question posed by appellant’s supplemental brief, and that is whether in enacting the quasi-community property provision of A.R.S. § 25-318 the legislature intended that it apply to property acquired before its effective date. Civil statutes are not automatically invalid if given retroactive application. Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv.L.Rev. 692 (1960). Arizona law does, however, carry over by express statute the common law presumption against retroactivity. Our courts have from an early date, particularly in the context of dissolution of marriage provisions, considered the question of retroactivity to be principally one of legislative intent. E. g., Schuster v. Schuster, 42 Ariz. 190, 23 P.2d 559 (1933); Fox v. Superior Court, 21 Ariz.App. 284, 518 P.2d 1001 (1974). In Schuster, the Court stated that when language used in a statute is plain and demonstrates that it is to be applied to periods prior to its effective date, then the statute should be so applied. The legislature, stressed the Court, need not use the expression “this statute shall be retroactive” or any similar language in expressing its legislative purpose. The Court went on to hold that the language of the statute before it was sufficient to indicate legislative intent because it was phrased in the past tense. The same type of language is used here. At the time the statute became effective, the only property to which it could apply was property acquired in the past by the parties in other jurisdictions. The statute expressly applies to property “acquired” in other jurisdictions. Moreover, it is highly improbable that the legislature intended the awkward results which would ensue if the statute applied only to property acquired after its effective date. Under such an application, two different kinds of property would be created: that acquired prior to August 8, 1973, and that acquired after. If that were the case, our courts would continue to cope with the problems of the prior law in every dissolution involving parties who lived outside of this state prior to 1973, and it would take a generation or more to achieve the consistent and unified application of law envisioned by the statute. Thus, hypothetically, if a couple moved to Arizona in 1977 from a common law jurisdiction, and applied for dissolution in this State today, the court would have to apply the law of the former domicile to all property acquired prior to 1973, but Arizona law to property acquired in that same State thereafter. We perceive little social utility in such an application. For all of the above reasons, we hold that the legislature in enacting the pertinent sentence of A.R.S. § 25-318 intended that it apply to all property acquired in other jurisdictions regardless of the date of acquisition. Appellant’s supplemental brief and memoranda to this Court argue only the issue of legislative intent, and do not urge any constitutional infirmity in the statute or rest upon any theory of interference with vested rights. We are aware that Division Two of this Court has recently issued a decision holding that this statute is not to be given retroactive effect. Czarnecki v. Czarnecki, 2 CA-CIV 2499 (Ct.App., filed Jan. 24, 1978). It does not appear that the ques tions of choice of law were comprehensively presented to the Court in that case, for the opinion relies solely on Oppenheimer v. Oppenheimer, 22 Ariz.App. 238, 526 P.2d 762 (1974). That decision, however, involved a different portion of A.R.S. § 25-318 which deals with division of joint tenancy property acquired in Arizona and has nothing whatsoever to do with property acquired in other jurisdictions. What is more, the language used by the Court in Czarnecki would appear to view acquisition of property in another jurisdiction as giving rise to irrevocably fixed rights from the moment of acquisition. It would thus appear to bar application of the quasi-community property concept to any property acquired prior to the filing for dissolution, not merely property acquired prior to the statute’s effective date. On the basis of the authorities discussed above, we decline to follow this view. To the extent that application of Arizona law to property acquired in another jurisdiction may be said to result in an interference with the rights or expectations of the parties, we agree with the principles enunciated by the modern California decisions. Such action is fully justified and reasonable in connection with proceedings under our dissolution law and involving parties who have become residents of this State. The judgment is affirmed. DONOFRIO, P. J., and OGG, J., concur. . A.R.S. § 25-318, with emphasis on the pertinent provision, provided as follows: “In a proceeding for dissolution of the marriage, or for legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which previously lacked personal jurisdiction over the absent spouse or previously lacked jurisdiction to dispose of the property, the court shall assign each spouse’s sole and separate property to him. It shall also divide the community, joint tenancy, and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct. For purposes of this section only, property acquired by either spouse outside the state shall be deemed to be community property if said property would have been community property if acquired in this state. Nothing in this section shall prevent the court from considering excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.” (Emphasis added). Amendments effective in 1977 did not materially change the statute in effect at the time of this proceeding before the trial court. . The burdens on the court and parties through application of the Rau principles are vividly illustrated- by this case. Neither party has attempted to determine how the pension would be treated under the law of each jurisdiction in which the parties actually resided. The appellant, recognizing the difficulty of applying the laws of many different jurisdictions to divide one military pension, has asserted that the law of Pennsylvania should apply to all of the pension credits. Appellant originally enlisted in the Air Force in 1954 in Pennsylvania, and Pennsylvania remained his “home of record” throughout his military service. He, therefore, argues that since for military purposes Pennsylvania remained his domicile, its laws should govern the distribution of property under traditional principles. We reject this argument for the reason that under traditional principles in Arizona, the law to be applied is the law of the “marital domicile” at the time of acquisition. Jizmejian v. Jizmejian, 16 Ariz.App. 270, 492 P.2d 1208 (1972); Rau v. Rau, 6 Ariz.App. 362, 432 P.2d 910 (1967). The parties in this case were not married in Pennsylvania, and the record does not indicate that they ever lived in Pennsylvania. Pennsylvania, therefore, has no interest whatsoever in the distribution of the property of this marriage, and under the conflict of law principles, its law should have no applicability whatsoever. See generally, Schreter, “Quasi-Community Property" in the Conflict of Laws, 50 Cal.L.Rev. 206 (1962). . A.R.S. § 1-244 provides: “No statute is retroactive unless expressly declared therein.” . California’s statute specifically states that it is to apply to all property “heretofore or hereafter acquired,” but we do not believe that the absence of that language in the Arizona statute indicates an intent to make our statute apply prospectively only. The language was added to the California statute in response to an early California court decision, Estate of Frees, 187 Cal. 150, 201 P. 112 (1921), which had misinterpreted that legislature’s intent. In Estate of Drishaus, 199 Cal. 369, 249 P. 515 (1926), the court treated this language as demonstrating a legislative intention to make the statute retroactive. . The opinion states in pertinent part: “Appellant contends that in any event A.R.S. § 25-318, Added Laws 1973, Ch. 139, § 2 authorizes the trial court to treat all of the retirement benefits which accrued during the marriage as community property even though some of the benefits are attributable to employment in a non-community state. In Oppenheimer v. Oppenheimer, 22 Ariz. App. 238, 526 P.2d 762 (1974) we held that the statute cannot be given retroactive effect when the result would be to destroy vested rights. In Van Loan v. Van Loan, 116 Ariz. 272, 569 P.2d 214 (1977) the court held that an unvested right to a pension is a contractual right. We believe that appellee’s pension rights prior to moving to Arizona are of such a nature as to proscribe retroactive application of the statute.” 2 CA-CIV 2499, slip op. at 3-4. Prior to Czarnecki, Division Two had indicated a similar conclusion. Burton v. Burton, 23 Ariz.App. 159, 162 note 1, 531 P.2d 204, 207 note 1 (1975).

OPINION JACOBSON, Judge. The sole issue presented in this forfeiture proceeding is whether the trial court erred in striking the owner’s motion to suppress because of his failure to timely file a verified answer pursuant to A.R.S. § 36-1044. The facts necessary to determine this issue are that on May 4, 1977, the 1969 Ford truck which is the subject of this forfeiture proceeding was seized when one pound of marijuana was found in the vehicle in the immediate presence of the vehicle owner, Michael Torres. On May 13,1977, the state filed its notice of intent to forfeit the vehicle. Pursuant to A.R.S. § 36-1044, Torres had until June 2, 1977, in which to file his verified answer. On May 31, 1977, Torres filed in the forfeiture proceeding a motion to suppress the marijuana found in the vehicle based upon an allegedly illegal search and seizure. No verified answer pursuant to A.R.S. § 36-1044 was filed. On June 8, 1977, the state filed a motion to strike the motion to suppress on the grounds that the owner had failed to file a verified answer. The trial court granted the state’s motion, struck the motion to suppress and after a trial on the merits ordered the vehicle forfeited to the state. A timely appeal has been taken by the owner. The only issue raised by Torres’ counsel before this court in his opening brief is whether the words “[n]o extension of time shall be granted for the purpose of filing the answer” contained in A.R.S. § 36-1044 are mandatory. In our opinion, this issue is not dispositive of the action taken by the trial court. We recently held in In re One 1974 Mercedes Benz, Ariz., 592 P.2d 383 (1979) that the forfeiting of a vehicle arising out of criminal activity is merely additional punishment extracted against the owner for the underlying crime. Given this posture of the forfeiture proceeding, this court was of the opinion that, at least in this quasi criminal setting, it owed a duty to bring to the attention of counsel the issue it felt was dispositive of the appeal. This was done and both counsel have filed supplemental briefs touching on the issue raised by the court. That issue is whether a motion to suppress evidence based upon an allegedly unconstitutional search and seizure is embraced within the matters which must be raised by a verified answer under A.R.S. § 36-1044, and which thus would be precluded by the failure to timely file an answer. We conclude under the statutes dealing with forfeiture that the issues raised by the motion to suppress are not embraced within the issues which must be framed by a verified answer and thus the failure to file such an answer does not preclude the trial court from ruling on the issues raised by the motion to suppress. We reach this conclusion based upon an analysis of those issues which by statute are triable in a forfeiture proceeding and the separate function of a motion to suppress based upon an unconstitutional search and seizure. The forfeiture proceeding is initiated by the state by filing a notice of seizure and intention to institute a forfeiture proceeding. A.R.S. § 36-1043. The state, by supplemental brief, correctly points out that the issues framed by that initial pleading by the state are whether illegal substances were in fact illegally kept, deposited or concealed in the vehicle sought to be forfeited and whether the registered owner is the individual upon whom notice of forfeiture was served. To those issues so framed, the claimant may file a verified answer within twenty days of the date of the notice. A.R.S. § 36-1044. However, A.R.S. § 36-1045(C) makes clear what issues are to be embraced within that answer: “At the hearing [forfeiture hearing] any owner or claimant who has a verified answer on file may show by competent evidence that the vehicle was not used to transport narcotic drugs illegally, or that narcotic drugs were not unlawfully possessed by an occupant of the vehicle, nor the vehicle used as a depository or place of concealment for narcotic drugs.” It is the filing of the verified answer under A.R.S. § 36-1044 which by statute is deemed the prerequisite to raising these defenses. Thus A.R.S. § 36-1045(A) provides in part that: “If a verified answer to the notice given . . .is not filed within twenty days . . . the court shall hear evidence upon the charge of unlawful use of the vehicle, and upon motion shall order the vehicle forfeited to the state.” We do not read the above statutory provision to mean that the claimant may not, by other appropriate pleading, raise defenses not embraced within an answer as circumscribed by A.R.S. § 36-1045(C). The most that can be gleaned from the statute is that failure to file a verified answer precludes defenses based upon the non-illegal use of the vehicle. Thus, if a claimant desires to raise defenses going to the underlying illegal use of the vehicle, or to the claimant’s lack of knowledge of such use, he must file a verified answer under A.R.S. § 36-1044. However, a motion to suppress based upon an illegal search and seizure does not raise defenses going to the illegal use of the vehicle. In fact, for the purposes of the motion, it is conceded that the vehicle was used to unlawfully keep, deposit or conceal narcotics. The issue raised by the motion to suppress is whether the state may admit the evidence of those narcotics which everyone agrees exists to prove that forfeiture is justified. This is based on the principle that evidence illegally seized may not be introduced in the forfeiture proceeding. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). The motion to suppress and the answer raise entirely separate and distinct defenses. The state has devoted a considerable portion of its supplemental brief to arguing that a motion to suppress does not fall within the meaning of a “verified answer” under A.R.S. § 36-1044. For the problem under discussion we feel such a determination to be immaterial. The issue is not whether a motion to suppress can take the place of a verified answer, but whether the failure to file a verified answer precludes a trial court from ruling on a timely filed motion to suppress. Based on our conclusion that the two pleadings serve, under the forfeiture proceeding, two separate and distinct functions, we hold that the failure to file a verified answer does not preclude the trial court from ruling on a timely filed motion to suppress. The judgment of forfeiture is reversed and the matter remanded with directions to hold a hearing on Torres’ motion to suppress. SCHROEDER, P. J., and OGG, C. J., Division 1, concur. . A.R.S. § 36-1044 provides: “Within twenty days after the mailing or publication of a notice of seizure, as provided by § 36-1043, the owner of the seized vehicle may file a verified answer to the allegation of the use of the vehicle contained in the notice of seizure and of the intended forfeiture proceedings. No extension of time shall be granted for the purpose of filing the answer.” . In view of In re One 1965 Ford Mustang, 105 Ariz. 293, 463 P.2d 827 (1970), an additional issue which should be raised by answer is whether the registered owner had knowledge of the presence of the illegal substance. . We express no opinion as to whether a motion to suppress filed more than twenty days following the notice requirement of A.R.S. § 36-1043 requires the trial court to rule on its merits.

OPINION SULT, Judge. ¶ 1 Appellant appeals the termination of his parental rights pursuant to Arizona Revised Statutes (“A.R.S.”) § 8-533(B)(4) (Supp.2003), the provision permitting severance based either on a felony conviction showing unfitness to parent or on a lengthy prison sentence. He argues that the Arizona Department of Economic Security failed to offer him family reunification services prior to seeking severance and therefore the severance should be overturned. Because we find that the Department has no duty to offer reunification services when the termination of parental rights is based on length of sentence, we affirm. BACKGROUND ¶ 2 Appellant is the father of Destiny H., born July 18, 2000, Gloria H., born September 2, 2001, and Lacey H., bom August 8, 2002. Appellant was sentenced to concurrent prison terms in March 2003, 5.5 years for stalking and 5 years for conspiracy to manufacture dangerous drugs. ¶3 On September 11, 2002, the juvenile court had found Destiny, Gloria, and Lacey dependent as to Appellant. Following Appellant’s imprisonment, the Department filed a motion to terminate Appellant’s parental rights seeking severance on both grounds specified in A.R.S. § 8 — 533(B)(4): (1) Appellant has a felony conviction of such nature as to prove him unfit to parent, and (2) Appellant’s sentence is of such length that the children will be deprived of a normal home for a period of years. The Department also alleged that termination would serve the best interests of the children. Following trial, the juvenile court terminated Appellant’s parental rights on both grounds and found termi nation to be in the best interests of the children. ¶4 On appeal, Appellant does not contest either of the substantive bases for severance under subsection (B)(4). Rather, he argues that prior to seeking termination under subsection (B)(4), the Department was required to make a diligent effort to provide reunification services. Appellant asserts that when he was sentenced, “[i]nstead of offering him services, [the Department] quickly wrote him off.” Thus, Appellant argues, the order terminating his parental rights should be reversed. ANALYSIS ¶ 5 The statutory provision under which Appellant’s rights were terminated provides that evidence sufficient to justify termination of parental rights shall include: That the parent is deprived of civil liberties due to the conviction of a felony if the felony of which that parent was convicted is of such nature as to prove the unfitness of that parent to have future custody and control of the child ... or if the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years. A.R.S. § 8-533(B)(4). We independently review legal issues requiring the interpretation and application of this statute. Mary Lou C. v. Arizona Department of Economic Security, 207 Ariz. 43, 47, ¶ 9, 83 P.3d 43, 47 (App.2004). ¶ 6 Unlike subsections (B)(8) and (B)(ll) of A.R.S. § 8-533, subsection (B)(4) imposes no explicit duty on the Department to provide reunification services. In fact, the legislature in 1998 amended the introductory language of A.R.S. § 8-533(B) to delete therefrom the requirement that the court consider “the availability of reunification services to the parent and the participation of the parent in these services” for all grounds for severance. 1998 Ariz. Sess. Laws, ch. 276, § 13. This deletion can be read as an affirmative legislative decision that reunification services are not required in the context of a subsection (B)(4) severance. ¶ 7 Even when the language mandating the inquiry was still in the statute we nevertheless noted in James S. v. Arizona Department of Economic Security, 193 Ariz. 351, 354 n. 4, 972 P.2d 684, 687 n. 4 (App.1998), that there was no reunification obligation on the Department when the cause of severance was the length of a parent’s prison sentence. Rather, we observed that prolonged imprisonment “cannot be remedied by reunification services.” Id. With the 1998 deletion of the language, we can conclude with a high degree of certainty that the legislature has not imposed a statutory duty on the part of the Department to provide reunification services for a subsection (B)(4) severance. ¶ 8 Notwithstanding that no statutory duty is imposed, we acknowledge that with respect to severance in general there may be a constitutional obligation on the Department to engage in reunification efforts. In Mary Ellen C. v. Arizona Department of Economic Security, 193 Ariz. 185, 191-92, ¶ 32, 971 P.2d 1046, 1052-53 (App.1999), we observed regarding the constitutional protections implicated in seeking termination of parental rights that “[t]he combined effect of the fundamental character of a parent’s right to his child and the severity and permanence of termination dictates that the court sever the parent-child relationship only in the most extraordinary circumstances, when all other efforts to preserve the relationship have failed.” Id. (quoting Maricopa County Juvenile Action Number JA 33794, 171 Ariz. 90, 91-92, 828 P.2d 1231, 1232-33 (App.1991)). Thus, we held that severance based on mental illness, a subsection (B)(3) severance, could be upheld only if the Department also proved that the condition either was not amenable to rehabilitative efforts or that such efforts had been provided but had proven unsuccessful. Mary Ellen C., 193 Ariz. at 193, ¶ 42, 971 P.2d at 1054. But we also held that there is no constitutional mandate to undertake reunification efforts that are futile. Id. The Department is obligated to undertake reunification only in cases where there is a reasonable prospect of success. Id. at 192, ¶ 34, 971 P.2d at 1053. ¶ 9 In this case, there were two bases for severance: a felony conviction showing pa rental unfitness and a sentence of such length as to deprive the children of a normal home. As to the former, we do not determine whether the constitutional duty to provide reunification services might be implicated in some cases arising thereunder. In this case of a lengthy prison sentence, however, we conclude that reunification efforts were not required because prolonged incarceration is something neither the Department nor the parent could ameliorate through reunification services. The damage to the parent-child relationship that justifies severance stems from the enforced physical separation of the parent from the child, and nothing the Department has to offer in the way of services can affect that reality. Nor could Appellant by participating in services remedy his inability to provide a normal home for the children for the period for which he will be incarcerated. As to this basis for severance, reunification services for Appellant would have clearly been futile. CONCLUSION ¶ 10 Appellant has not argued that the evidence is insufficient to support the trial court’s finding that his prison sentence was of sufficient length to justify severance, only that reunification efforts were required but not made. Thus, we do not find that Michael J. v. Arizona Department of Economic Security, 196 Ariz. 246, 995 P.2d 682 (2000) is implicated by our decision and do not address our concurring colleague’s concerns. We conclude here only that the Department had no duty to provide reunification services prior to seeking termination based upon length of sentence. We therefore affirm the juvenile court’s order terminating Appellant’s parental rights. CONCURRING: G. MURRAY SNOW, Judge.

FLÓREZ, Presiding Judge. ¶ 1 After a jury trial, Israel Joaquin Alvarez was convicted of felony murder and aggravated robbery. The trial court sentenced him to concurrent prison terms of life and 6.5 years. He argues on appeal that the trial court erred in instructing the jury, denying his motion for a judgment of acquittal, admitting hearsay evidence, and dismissing a prior case on the same facts without prejudice. We affirm his convictions and sentences. PACTS AND PROCEDURAL HISTORY ¶2 We view the facts in the light most favorable to upholding the convictions. See State v. Greene, 192 Ariz. 431, 967 P.2d 106 (1998). The evidence showed that Alvarez and S. had been together for two or three days in June 2001, smoking crack cocaine. After they met Ramon Cruz and Warren Nixon, the four took a drive in S.’s rented white Chevrolet Cavalier. At some point, the four went to a desert area to smoke more crack cocaine. According to Alvarez, Nixon then said he wanted to take the car from S., and Nixon and Cruz pulled S. out of the car and beat him. Nixon, Cruz, and Alvarez then drove away in the rental car. ¶ 3 Deputy Sheriff Maurice Othic found S. staggering down a road around 3:00 p.m. on June 10, with blood “all in his hair and all on his face.” Othic said S. had “pretty much collapsed” on the trunk of the patrol vehicle and had slipped in and out of consciousness. Othic was able to learn S.’s first name. Before S. lost consciousness again, he told Othic three men had “jumped him and [had taken] his ’95 white Suzuki.” ¶ 4 In May 2001, S. had reported to police that his Suzuki had been stolen. In June, S. was driving a rental car, a white Chevrolet Cavalier. A customs inspector stopped the Cavalier about 4:30 p.m. on June 10 at the international border because its occupants were “looking out the windows ... [and] didn’t seem like they knew where they were going.” The men had no identification, and Alvarez gave conflicting stories about who owned the car. In the car, the inspector found a rental contract with S.’s name on it and called the rental company, whose representative asked him not to allow the three men to take the car to Mexico. Alvarez then walked into Mexico. ¶ 5 On June 12, S. died from multiple blunt force injuries to his head. His blood was found on clothing belonging to Alvarez, Cruz, and Nixon and on two concrete blocks found at the murder scene. JURY INSTRUCTIONS Portillo instruction ¶ 6 Alvarez first argues that the reasonable doubt instruction our supreme court adopted in State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995), is unconstitutional because it fails to adequately direct that only the state has the burden of proof. Our supreme court has repeatedly rejected similar arguments challenging this instruction. State v. Dann, 205 Ariz. 557, 74 P.3d 231 (2003); State v. Lamar, 205 Ariz. 431, 72 P.3d 831 (2003); State v. Van Adams, 194 Ariz. 408, 984 P.2d 16 (1999). Because we have no authority to overrule the supreme court, City of Phoenix v. Leroy’s Liquors, Inc., 177 Ariz. 375, 868 P.2d 958 (App.1993), we do not address the issue. Felony murder instruction ¶ 7 The trial court gave the following jury instruction: The crime of first degree felony murder requires proof of the following two things: The defendant committed or attempted to commit aggravated robbery or robbery; and, in the course of and in furtherance of this crime or immediate flight from the crime, the defendant or another person caused the death of any person. With respect to the felony murder rule, in so far as it provides the basis for a charge of first degree murder, it is the law that there is no requirement that the killing occurred while committing or engaged in the felony, or that the killing be a part of the felony. The homicide need not have been committed to perpetrate the felony. It is enough if the felony and the killing were part of the same series of events. At trial, Alvarez objected to the language in the second paragraph, arguing it was not an accurate statement of the law. On appeal, he contends that the language does not appear in the statute enumerating the elements of felony murder, see A.R.S. § 13 — 1105(A)(2), and that “the addition of the instruction is totally confusing to a jury and has in fact been disapproved.” Furthermore, he posits, the “objected [to] instruction clarifies nothing and in fact appears diametrically opposed to the statutory language.” We review de novo whether a jury instruction correctly stated the law. State v. Orendain, 188 Ariz. 54, 932 P.2d 1325 (1997). ¶ 8 Alvarez is not entirely correct that the language in the second paragraph of the instruction has been disapproved. The same language to which Alvarez objects was given in State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996), over the defendant’s objection. Although our supreme court discouraged using the language, it held that, taken as a whole, the instruction there had not misled the jury, noting there was “no doubt that the murder was [committed] ‘in furtherance of the robbery.” Id. at 15, 918 P.2d at 1033. In Miles, the victim had been murdered to obtain her car and its contents. Similar evidence was presented here. S. was severely beaten so the perpetrators could obtain his car and its contents. Accordingly, although we acknowledge that this instruction is not preferred by the supreme court, we see no reversible error. See Miles. ¶ 9 Alvarez next criticizes the language as “totally unnecessary even if it was not confusing” and as an “inartful” attempt to define “in furtherance of.” Because he has failed to develop the argument with legal authorities, we do not address it. See Ariz. R.Crim. P. 31.13(c)(vi), 17 A.R.S. MOTION FOR JUDGMENT OF ACQUITTAL ¶ 10 Alvarez next argues that the trial court erred in denying his motion for a judgment of acquittal, made pursuant to Rule 20, Ariz. R.Crim. P., 17 A.R.S. He contends the evidence was insufficient to sustain his conviction for either felony murder or aggravated robbery, either as a principal or an accomplice. We review the denial of a motion for judgment of acquittal for an abuse of discretion. State v. Henry, 205 Ariz. 229, 68 P.3d 455 (App.2003). A judgment of acquittal should be granted “if there is no ‘substantial evidence’ to support the conviction.” State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App.1996), quoting State v. Atwood, 171 Ariz. 576, 597, 832 P.2d 593, 614 (1992), overruled on other grounds by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001). We will reverse a trial court’s denial of a Rule 20 motion only if there is “a complete absence of probative facts to support a conviction.” State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). If reasonable minds can differ on the inferences to be drawn from the evidence, a trial court has no discretion to enter a judgment of acquittal and must submit the case to the jury. State v. Landrigan, 176 Ariz. 1, 859 P.2d 111 (1993). ¶ 11 Substantial evidence supports Alvarez’s convictions. S.’s statement, Alvarez’s confession, the testimony that S.’s blood had been found on Alvarez’s shoe, and the testimony of the customs inspector about Alvarez’s behavior at the border constituted sufficient evidence to require the trial court to submit the case to the jury. ¶ 12 Alvarez argues that only S.’s statement — that three men had “jumped him”— inculpated Alvarez and that the other evidence only placed him at the scene. He also contends S.’s statement was hearsay. In fact, S.’s statement to Othic did not name Alvarez or describe him. Only when connected to other evidence does S.’s statement inculpate Alvarez. In any event, even disregarding S.’s statement, the state presented sufficient evidence from which a reasonable jury could have inferred that Alvarez had been more than a “passive observer.” The trial court thus did not abuse its discretion in denying Alvarez’s Rule 20 motion. ADMISSION OF S.’S STATEMENT Hearsay ¶ 13 Alvarez asserts that the trial court erroneously admitted as an excited utterance S.’s statement that three men had “jumped him” and had taken his car, arguing the necessary foundational requirements for its admission were lacking. We will not disturb a trial court’s ruling admitting or excluding evidence absent a clear abuse of discretion. State v. Whitney, 159 Ariz. 476, 768 P.2d 638 (1989). An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Ariz. R. Evid. 803(2), 17A A.R.S. “ ‘The modern trend is toward a liberal interpretation of [the excited utterance] exception, leaving admissibility largely to the discretion of the trial court.’ ” Whitney, 159 Ariz. at 484, 768 P.2d at 646, quoting State v. Rivera, 139 Ariz. 409, 410, 678 P.2d 1373, 1374 (1984). ¶ 14 To constitute an excited utterance, a statement must have been spontaneous so as not to give the declarant time for reflection. Rivera. “The spontaneity of a statement is determined from the totality of the circumstances. Among the elements usually examined are the time factor between the event and statement, the physical and emotional condition of the declarant, and the nature of the offense.” State v. Anaya, 165 Ariz. 535, 539, 799 P.2d 876, 880 (App.1990) (citation omitted). The declarant’s physical and emotional condition at the time the statement is made relates more closely to the spontaneity requirement than the time between the event and the statement. Id. “If the totality of the circumstances indicates that the statement was not likely to be fabricated because of the effect of the startling event on the declarant, it will be admissible.” State v. Yslas, 139 Ariz. 60, 65, 676 P.2d 1118, 1123 (1984). ¶ 15 Alvarez first argues that S. was not under the stress of nervous excitement when he made the statement. See State v. Beasley, 205 Ariz. 334, ¶ 30, 70 P.3d 463, 470 (App.2003) (hearsay statement properly admitted as excited utterance “if, under the totality of the circumstances, the declarant may be considered to have made the statement under the stress of nervous excitement”). We disagree. S. was staggering, mumbling, and bleeding when he was found. He was slipping in and out of consciousness and repeatedly asking for medical help. Alvarez has offered no basis for us to disturb the trial court’s ruling that S. made the statement while under the stress of the startling event. See State v. Barnes, 124 Ariz. 586, 589-90, 606 P.2d 802, 805-06 (1980) (statement of victim admissible as excited utterance when victim “sluggish and disoriented,” not “agitated,” but in “state of shock”). ¶ 16 Alvarez also asserts that the statement related to a different startling event than the one at issue and that S.’s statement “certainly” related to his prior car theft. Alvarez relies on the language in State v. Bass, 198 Ariz. 571, ¶ 23, 12 P.3d 796, 803 (2000), that “an accident cannot serve as the basis for an excited utterance where it is not the event about which the declarants had spoken.” In Bass, however, it was clear the statements were not about the accident, the startling event there. S.’s statement is different. Although there was evidence that S.’s Suzuki had been stolen in May, there was no evidence the circumstances of that theft were at all similar to the events surrounding the theft of the Chevrolet. And, S.’s statement followed his having been beaten and robbed, and it clearly related to that attack when taken in context. The trial court did not err in finding that S.’s state ment related to the startling event that had just occurred. ¶ 17 Alvarez also contends the statement was not “rehable” because of the brain damage S. had sustained in the beating. But, “[o]ur courts have not attempted to confine the application of the excited utterance exception solely to indisputably rehable statements____[Thus, a]dmission as a hearsay exception is not foreclosed by the fact that a statement’s reliability has been impugned.” State v. Jeffers, 135 Ariz. 404, 420, 661 P.2d 1105, 1121 (1983) (citations omitted) (statements of victim under influence of an intoxicant not sufficiently unreliable to preclude their admission under excited utterance exception); see also State v. Peeler, 126 Ariz. 254, 256-57, 614 P.2d 335, 337-38 (App.1980) (victim’s statement admissible as excited utterance despite psychologist’s testimony that “statements made by the victim would ‘probably’ be less than rehable if she was extremely agitated, but might become rehable as she grew calmer”); State v. Yee, 121 Ariz. 398, 590 P.2d 937 (App.1978) (statements properly admitted as excited utterance despite testimony that declarant was unreliable when excited). A witness’s reliability “goes to the weight of the statements, not their admissibility.” State v. Whitney, 159 Ariz. 476, 484, 768 P.2d 638, 646 (1989). And “the question of credibility remains for submission to the jury.” Jeffers, 135 Ariz. at 420, 661 P.2d at 1121. Moreover, the trial court considered S.’s physical and mental condition in determining whether his statement had been spontaneous, and we have already concluded that the court did not err in finding that the statement related to the startling event that had just occurred. Therefore, we find no basis to disturb the court’s determination that S.’s statement was sufficiently rehable to be admitted. Confrontation clause ¶ 18 In a supplemental citation of authority, Alvarez points to the recent United States Supreme Court case of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), as support for his contention that the trial court erred in admitting S.’s statement. In Crawford, the Court overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and held that, when “testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability [of the declarant] and a prior opportunity for cross-examination.” Crawford, 124 S.Ct. at 1374. We review de novo a claim that a defendant’s confrontation rights were violated. State v. Bronson, 204 Ariz. 321, 63 P.3d 1058 (App.2003). ¶ 19 The Court in Crawford expressly declined to “spell out a comprehensive definition of ‘testimonial,’ ” holding that “it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” 124 S.Ct. at 1374. Nor did the Court expressly define “police interrogation,” except to note that it used the term in its “colloquial, rather than any technical legal, sense” and that it “need not select” from the various imaginable definitions of interrogation because the statement at issue, made “in response to structured police questioning, qua-lifie[d] under any conceivable definition.” 124 S.Ct. at 1365 n. 4. ¶20 Since Crawford was decided, lower courts have interpreted “police interrogation” to require either some type of structured police questioning, State v. Barnes, 854 A.2d 208, 211-12 (Maine 2004) (victim seeking help, not responding to “tactically structured police questioning as in Crawford”); Hamman v. State, 809 N.E.2d 945, 952 (Ind.Ct.App.2004) (“interrogation” under Crawford does not apply to “preliminary investigatory questions asked at the scene of a crime shortly after it has occurred”), or questioning aimed at “producing evidence in anticipation of a potential criminal prosecution.” People v. Kilday, 20 Cal.Rptr.3d 161, 173 (App.2004) (police questioning conducted to determine nature and cause of victim’s injuries). ¶ 21 Although S. made his statement in response to Othic’s questions, the exchange could not have constituted a “police interrogation.” S. did not call the police as a result of the crime that had been committed. Rather, Othic found S. staggering down a road. When Othic found S., Othic did not know that a crime had even been committed; he simply questioned S. about his injuries to obtain medical assistance for him. Othic’s questioning was neither structured nor conducted for the purpose of “producing evidence in anticipation of a potential criminal prosecution.” Kilday, 20 Cal.Rptr.3d at 173. ¶ 22 We thus conclude S.’s statement was nontestimonial hearsay outside the scope of Crawford. ‘Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law.” Crawford, 124 S.Ct. at 1374; see also White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 859 (1992) (excited utterances are “materially different from the statements at issue in Roberts, where the out-of-court statements sought to be introduced were themselves made in the course of a judicial proceeding”). The trial court’s admission of S.’s statement did not violate Alvarez’s confrontation rights. DISMISSAL WITHOUT PREJUDICE ¶ 23 Finally, in a supplemental opening brief, Alvarez contends the trial court abused its discretion by dismissing his first case without prejudice, arguing the state was thereby granted a de facto continuance. The first indictment against Alvarez, filed in CR-20012242, was dismissed without prejudice in October 2001 because of a speedy trial violation. We have no jurisdiction to address this issue. Only the convictions in CR-20013408 are properly before us. Moreover, “[a]n order of dismissal without prejudice may not be appealed by a defendant”; the appropriate avenue of review is a petition for special action. Duron v. Fleischman, 156 Ariz. 189, 191, 751 P.2d 39, 41 (App.1998). ¶24 We affirm Alvarez’s convictions and sentences. PELANDER, C. J. and ESPINOSA, J., concurring.

PI AYS, Justice. This is an appeal by the Arizona State Liquor Board, defendant below, from a superior court judgment ordering the defendant Liquor Board to grant plaintiff Carl J.. Slonsky’s application for transfer of his beer and wine liquor license. The superior court’s judgment overruled a previous Liquor Board decision which had denied Slonsky’s application for transfer. On April 23, 1968, the superior court entered a formal order and judgment which granted plaintiff Slonsky’s application to transfer his liquor license. The Liquor Board filed a motion to vacate the judgment on April 30, 1968, and the motion was summarily denied by a minute entry order on May 3, 1968. On June 28, 1968, the defendant Liquor Board filed a notice of appeal, after which opposing briefs were filed. A formal denial of defendant’s motion to vacate judgment was not entered until June 18, 1969, and seven days later defendant filed a notice of appeal both from the superior court’s judgment of April 23, 1968, and the order of June 18, 1969, denying defendant’s motion to vacate judgment. Plaintiff contends that the defendant Liquor Board failed to properly perfect its appeal. He asserts that since defendant’s notice of appeal of June 28, 1968, appealed only the superior court’s judgment of April 23, 1968, and not the court’s denial of the defendant’s motion to vacate judgment, the appeal did not comply with the time requirements of Ariz.Rules Civ.Proc. 73(b), 16 A.R.S. because it was filed more than sixty days from the date of entry of judgment. Rule 73(b), supra, enumerates the motions which extend the time in which the notice of appeal may be filed beyond sixty days from the entry of judgment. A “motion to vacate judgment” is not one of the motions enumerated, hence the filing of such motion does not extend the time. It is ordered that the appeal be dismissed. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and McFARLAND, JJ., concur.

UDALL, Justice. The issue in this Special Action is whether a child born after the execution of her mother’s will is entitled to take an intestate share of her mother’s estate under the provisions of Arizona’s pretermitted child statute, A.R.S. § 14-131. Mary Ann DeCoste, in 1969, filed a Petition for Determination of Heirship in the Matter of the Estate of Fedwa Gobins, Cause No. P 63235, Superior Court, Maricopa County. The Superior Court determined, based upon its finding of the intent of the testatrix, that the petitioner was not entitled to take any share of the estate. Mrs. DeCoste petitioned to this court and we issued a Writ in the nature of certiorari to the Superior Court. The testatrix, Fedwa Gobins, executed her will in April, 1930. At that time she had three children, who are the respondent real parties in interest herein. Fedwa Gobins’ will, after providing for payment of funeral and last illness expenses, provided in pertinent part as follows: “I give, devise, and bequeath unto my beloved husband, CHOKREE GOBINS, now residing at Cottonwood, Arizona, all of my property, both real and personal, of every name and nature whatsoever, wherever situated, owned by me at the time of my death.” Mary Ann Gobins DeCoste, the petitioner, was born in July, 1930, approximately four months after the execution of her mother’s will. The testatrix died in 1961. Petitioner’s claim to a share of her mother’s estate is based upon A.R.S. § PI-131 which provides as follows: “§ 14 — 131. Afterborn and pretermitted child If a testator or testatrix, at his or her death, leaves a child born or adopted after making his or her will, and such afterborn or adopted child is not mentioned or provided for in such will, either specifically or as a member of a class, the testator or testatrix shall be deemed to have died intestate with respect to such child, and the child shall be entitled to recover from the devisees or legatees in proportion to the amounts of their respective shares, that portion of the estate which the child would have inherited had there been no will.” Most states have passed statutes dealing with afterborn children. These statutes vary greatly in their provisions, but were generally passed in order to protect the child who, through mistake or inadvertence, was not provided for by the parent. See In Re Torregano’s Estate, 54 Cal.2d 234, 5 Cal.Rptr. 137, 352 P.2d 505 (1960); Rees, American Wills Statutes: II, 46 Va. Law Review 856, 894-898 (1960); Mathews, Pretermitted Heirs: An Analysis of Statutes, 29 Columbia Law Review 748 (1929). There is no question that the petitioner was born after the execution of the will and that neither she nor any of the children were mentioned or provided for by the will. Respondents’ basic position is that the testatrix, in leaving her entire estate to her husband, did not intend any of the children to take. Respondents further urge that since Fedwa Gobins was pregnant at the time of making her will, she could not simply have overlooked the possibility of an afterborn child. Respondents thus ask this court to look solely to the intent of the testator as evidenced by circumstances outside the will. The difficulty with respondents’ position, however, lies in the language of the Arizona pretermitted child statute itself, A.R.S. § 14-131. That statute requires that the afterborn child “shall” take an intestate share if it is neither “mentioned [nor] provided for in such will.” The statute itself thus creates a presumption that the testator did not intend to exclude an afterborn child, and that presumption can be rebutted only by language in the will. See Batley v. Batley, 239 Mo.App. 664, 193 S.W.2d 64, 65 (Mo.App.1946). In contrast to the Arizona statute, the statutes of many states provide that the child should take unless it appears that the omission was intentional. See e.g., SmithHurd Ill.Stat.Ann., C. 3 § 48 (1961); Mass.Gen.Laws Ann., C. 191 § 20 (1958). Accordingly we fully recognize that courts in many other states have held under factual situations similar to this at bar, that the afterborn child should not take an intestate share for the reason that the testator intended to disinherit the child. However, none of the cases upon which respondents rely involved application of a statute similar to A.R.S. § 14-131. In Hedlund v. Miner, 395 Ill. 217, 69 N. E.2d 862 (1946), the court held that the afterborn child did not take. However, the Illinois statute provided that the afterborn child would take “unless it appears by the will that it was the intention of the testator to disinherit the child.” Respondents rely heavily upon Guion v. Guion, 232 Miss. 647, 100 So.2d 351 (1958). In that case, the testatrix at the time her will was executed had two children. Like the case at bar, the testatrix left her entire estate to her husband without mention of any children. The court held that the child born after the execution of the will was not a pretermitted child under the Mississippi statute and therefore not entitled to an intestate share. The Mississippi statute, Code 1942, § 659, however, unlike the Arizona statute, provided that an after-born child would take if the child was “unprovided for by settlement, and neither provided for nor disinherited, but only pretermitted by the last will * * * (Emphasis supplied) The Mississippi court thus concluded that the testatrix, by leaving her estate to her husband, effectively “disinherited” the children as a class. See also Fleming v. Phoenix Trust Co., 162 Tenn. 511, 39 S.W.2d 277 (1931). The statute in this state however does not refer to a “disinheritance” of children. It requires that the statute will operate unless there is a specific “mention” or “pro vision” for the children. Therefore, we do not find that the interpretation of the Mississippi statute in Guión v. Guión, supra, can be applied to the case at bar. Our decision here is in accord with decisions of other courts construing statutes similar to the Arizona statute. Batley v. Batley, 239 Mo.App. 664, 193 S. W.2d 65 (Mo.App.1946) ; In Re Ridgway’s Estate, 33 Wash.2d 249, 205 P.2d 360 (1949) ; Yeates v. Yeates, 179 Ark. 543, 16 S.W.2d 996 (1929). See also Wachovia Bank and Trust Co. v. McKee, 260 N.C. 416, 132 S.E.2d 762 (1963). We accordingly must conclude that, because of the strict wording of A.R.S. § 14-131, the trial court abused its discretion in determining that the petitioner herein was not entitled to an intestate share of Fedwa Gobins’ estate. This court is not without sympathy for respondents’ underlying view that application of A.R.S. § 14-131 may result in frustration of some testators’ intentions. The Arizona statute, insofar as it requires a specific provision in the will to bar an afterborn child, is sometimes described as a “Missouri” type statute. See 57 Am.Jur., Wills, § 583, Note, 9 S.W. Law Journal 136 (1955). Such statutes are often contrasted with so-called “Massachusetts” type statutes which look to intent. In view of the many variations found in the statutes, such an arbitrary classification is not of great assistance. We note also that Missouri has in fact changed its pretermitted child statute and adopted the provision of the Model Probate Code. Vernon’s Anno.Mo.Stat, Sec. 474.240 (1956). It is significant that Missouri’s new statute- specifically deals with the situation in the instant case. It provides, in pertinent part, that the afterborn child not mentioned in the will takes “unless when the will was executed the testator had one or more children known to him to be living and devised substantially all his estate to his surviving spouse.” Respondents’ remaining contention is 'based upon the language of A.R.S. § 14-131 which provides that “the child shall be entitled to recover from the devisees or legatees in proportion to the amounts of their respective shares, that portion of the estate which the child would have inherited had there been no will.” (Emphasis added.) Respondents assert that the sole remedy of an afterborn child is by way of a civil action against the devisees and legatees, in this case Chokree Gobins. Respondents further contend that such an action accrued at the death of the testatrix, Fedwa Gobins, in 1961, and that the action is therefore barred by laches and the statute of limitations. (A.R.S. § 12-541) With respect to this contention, we must agree with the trial court and hold that the petitioner, Mary Ann DeCoste, properly proceeded by means of a Petition for Determination of Heirship in the probate proceedings. While respondents request a literal and exclusive application of the phrase “recover from the devisees”, respondents ignore that portion of the statute which provides that the “testator or testatrix shall be deemed to have died intestate with respect to such child.” This clause, we believe, clearly implies that the rights of the afterborn child are an appropriate subject for determination in probate proceedings, which determine the proper distribution of the estate, and where all parties with a possible interest can be represented. Moreover, the language upon which respondents rely is substantially similar to language in the statutes of both Arkansas and New York. The courts of those states have consistently determined the rights of pretermitted children during the administration of the estate. Parker v. Bowlan, 242 Ark. 192, 412 S.W.2d 597 (1967); In re Faber’s Estate, 305 N.Y. 200, 111 N.E. 2d 883 (1953), and authorities cited therein. Under A.R.S. § 14-641, a Petition for Determination of Heirship may be filed “at any time after the appointment of the executor or administrator, but prior to the filing of a petition for distribution.” Mrs. DeCoste’s Petition for Determination of Pleirship was filed prior to the filing of a petition for distribution. There is therefore no statutory bar to her claim. Respondents also suggest that petitioner’s claim should be barred by laches, for the reason that the decedent died in 1961 and the Petition for Determination of Heirship was not filed until 1969. The trial court rejected the defense. An examination of the complicated record substantially explains the delay. The will was not offered for probate until 1965. Thereafter one of the respondents herein, Zerifa Hannah Gobins Shaw contested the will as the product of undue influence. Had this contest been successful, the instant claim by petitioner would have been unnecessary. This contest was not finally resolved by withdrawal of the contestant’s appeal until 1967. The record also reveals that the petitioner herein, Mrs. DeCoste, did file a “Notice of Claim of Afterborn Child”, claiming rights under A.R.S. § 14 — 131, in 1966. Under these circumstances the trial court did not abuse its discretion in determining that the petitioner was not guilty of laches. See Maricopa County v. American Pipe and Construction Co., 303 F.Supp. 77 (D. Ariz.1969) ; Decker v. Hendricks, 97 Ariz. 36, 396 P.2d 609 (1964). The Order of the Superior Court is reversed and the cause remanded for proceedings consistent herewith. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and McFARLAND, J., DONOFRIO, Judge, Court of Appeals, concur. NOTE: Justice JACK D. H. HAYS having announced his disqualification, Honorable FRANCIS J. DONOFRIO, Presiding Judge, Court of Appeals, Division 1, was called to sit in his stead. . Chokree Gobins, her husband, died in 1966 after remarrying. His will provided in effect for his estate to be placed in trust for his second wife for her life. Upon her death the principal is to be divided among all four of bis children, including Mary Ann DeCoste. Probate proceedings in his estate have been consolidated with the estate of Fedwa Gobins.

UDALL, Justice. This is a delayed appeal from appellant’s conviction in 1968 of the crime of robbery. The single issue presented is whether, because of his counsel’s conflict of interest, the appellant was denied effective assistance of counsel, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Appellant was arrested in 1967 along with three other individuals, Billy Joe Thompson, Clifton Williams and Leslie Hollingsworth. All four were charged with having committed a robbery of a liquor store in Phoenix. The same deputy public defender was appointed to represent all four individuals. Separate trials were held. At the time appellant came to trial, on February 5, 1968, two of the four defendants had been convicted of the robbery. Appellant was the third to come to trial. The record indicates that one of the defendants had pleaded guilty to the charge and that a second had been found guilty after a jury trial. The fourth defendant, Leslie Hollingsworth, had not yet come to trial. When appellant’s case was called, appellant himself, outside the presence of the jury, requested the trial court to appoint other counsel. Appellant stated that he wished to subpoena the three other defendants but that his appointed counsel refused to subpoena one of those defendants, Hollingsworth. Appellant’s counsel then informed the court that he was also representing Hollingsworth and that Hollingsworth had not yet come to trial. Counsel explained that as Hollingsworth’s attorney he would have to advise him not to testify on the ground that testimony at appellant’s trial might tend to incriminate Hollingsworth. Counsel further indicated that he believed there might be a conflict of interest problem and laid the matter in the hands of the trial court. The trial court stated that appellant’s request for a change of counsel was denied at that time, pending later developments during the trial. The case was thereafter tried. Hollingsworth was not called to testify. The other two defendants, already convicted, testified in appellant’s favor. Appellant continued to be represented by the same counsel and was convicted after a jury verdict of guilty. The above stated facts show clearly that counsel representing the appellant was not able to call to the stand and question a witness, desired by the appellant, because to do so would conflict with counsel’s representation of that witness. We therefore must agree with appellant’s contention that a conflict of interest existed which requires the reversal of his conviction. As this court emphasized in State v. Kruchten, 101 Ariz. 186, 417 P.2d 510, cert. denied 385 U.S. 1043, 87 S.Ct. 784, 17 L.Ed.2d 687 (1966), a lawyer may represent codefendants until a conflict arises or can reasonably be foreseen. At that point independent legal advice must be provided for one or the other. See also Kruchten v. Eyman, D. C., 276 F.Supp. 858, aff’d 406 F.2d 304 (9 Cir., 1967). The state urges that there was no actual conflict here because there was no harm to the appellant caused by Hollingsworth’s failure to testify. The state suggests that appellant’s counsel may have determined that Hollingsworth’s testimony would not aid appellant’s case. We believe that the state’s argument is simply speculation upon the degree of prejudice inflicted because of counsel’s conflict of interest. The essential point is that appellant’s counsel, because of his conflict in representation, was not able to call the codefendant as requested by appellant himself. It is by now well established that if a conflict of interest exists, courts will not speculate upon the amount of prejudice which may arise. The Supreme Court of the United States made this quite clear in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942): “To determine the precise degree of prejudice sustained by Glasser as a result of the court’s appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” 315 U.S. 60, 75-76, 62 S.Ct. 467. Relying upon Glasser v. United States, supra, this court has stated in State v. Kruchten, supra, that where a conflict of interest exists in representation of codefendants by the same counsel, prejudice will be presumed: “Plainly, where a lawyer undertakes to represent two or more co-defendants and an actual conflict of interest exists, courts will not weigh the quantity of prejudice which may have resulted to one or the other. Reversible error will be presumed. But an actual conflict must, in fact, have existed or been inherent in the facts of the case from which the possibility of prejudice flowed.” 101 Ariz. 186, 199, 417 P.2d 523. In the instant case the trial court erred in not appointing separate counsel for the appellant. Reversed and remanded for new trial. STRUCKMEYER, V. C. J., and McFARLAND, J., concur. . The facts in this case are very similar to those alleged in Commonwealth v. James, 429 Pa. 250, 240 A.2d 368 (1968). There the defendant alleged on appeal that his counsel refused to call a witness because his counsel also represented the witness. The Pennsylvania court remanded the matter for a hearing to determine whether the allegations were true, holding that if they were true the conviction would have to he reversed because of counsel’s conflict of interest. In the instant case the conflict is shown clearly in the transcript.

HAYS, Justice. Appellant, Joel Leighton Howard, has appealed from a judgment and sentence entered on a charge of attempted robbery. Appellant was originally informed against for robbery, theft of motor vehicle, assault with a deadly weapon and burglary, second degree. The arraignment was conducted on July 29, 1969, at which time the public defender was appointed as appellant’s counsel. A plea of not guilty was entered and all further proceedings were assigned to Judge Donald F. Froeb. Trial was set for October 1, 1969. On September 30, 1969, an amended information was filed charging appellant with aggravated assault and burglary, second degree, with a prior conviction. Appellant moved to change his plea to guilty. Judge Froeb permitted the change of plea after he thoroughly questioned appellant and determined that his new plea was made voluntarily, that no promises of leniency had been made, that appellant had consulted with his attorney as to the consequences of pleading guilty, that appellant was fully aware of his rights and that those rights would be waived by a plea of guilty. On October 23, 1969, the date set for imposition of sentence, appellant requested leave to withdraw his plea of guilty and to reinstate his plea of not guilty. He indicated a desire to hire a private attorney claiming that he was not being properly represented by the public defender. Although the court expressed the opinion that appellant had been well represented by counsel, it permitted appellant to withdraw his plea and enter a plea of not guilty. Further, at appellant’s request, the trial was moved ahead to December 10, 1969, for the purpose of giving appellant ample time to hire his own attorney. Flowever, appellant never did hire an attorney and he was represented by the public defender throughout all of the proceedings below. Next, appellant moved to have his cause transferred to another judge on the ground that he could not get a fair trial before Judge Froeb because of the latter’s alleged bias, interest or prejudice. This motion was granted and the case was assigned to Judge Harold D. Martin. However, the trial had to be reset for January 26, 1970. On January 23, 1970, the Deputy Public Defender assigned to appellant’s case was permitted to withdraw for good cause and another attorney from the Public Defender’s office was immediately appointed to represent appellant. On the day of the trial, another amended information was filed, this time charging appellant with attempted robbery. Again, appellant indicated a desire to plead guilty. The court once more assured itself that appellant’s plea was made voluntarily and intelligently and that appellant possessed a full understanding of all of his rights. Thereupon, appellant was given leave to withdraw his plea of not guilty and to enter a plea of guilty to the amended charge. On February 4, 1970, appellant was adjudged guilty of the offense charged and sentenced to the state prison for not less than 12 nor more than 15 years. Appellant appeals on the ground that he v/as forced to proceed to trial with such haste as to deprive him of a reasonable opportunity to consult with counsel and to prepare his case. He complains that because a new attorney was assigned to his case only three days before trial, counsel did not have enough time to properly prepare therefor. Appellant points out that his new attorney spoke with him only once before trial and at a time when counsel had not familiarized himself with the case. Appellant’s argument also seems to imply that his counsel did not effectively represent him. We are of the opinion that these arguments are without merit. Assuming that counsel had not familiarized himself with the case at the time he conferred with appellant, it does not necessarily follow that counsel did not do so before the day of trial. Indeed, appellant makes no express claim that his counsel did not feel prepared to go forward. The entire record is quite brief and could have been easily digested within an hour. Further, if counsel needed additional time, we entertain no doubt that he would have moved for a continuance; however, the record is devoid of any attempts by counsel or appellant to secure a continuance. The time required for adequate preparation varies greatly from case to case. What may be a reasonable time in one case may be quite unreasonable in another. The case at bar appears to be relatively simple and could have been prepared on short notice by competent counsel. There is nothing in appellant’s argument to concretely establish that this was not done. Appellant by his responses to the court on the second offer of a plea of guilty, has waived his right to now assert that his lawyer was not prepared. Having engaged in plea bargaining, the appellant appears to he dissatisfied with the bargain he obtained. This is not an appropriate basis for reversal. A close examination of the record before us clearly indicates that appellant was effectively assisted by competent counsel at every stage of the proceedings. Judgment of the trial court is affirmed. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and McFARLAND, JJ., concur.

HAYS, Justice. Petitioner was convicted of misdemeanor manslaughter under § 13-456, subsec. A, par. 3(b). The charge against petitioner was the result of an automobile accident which resulted in the death of Janice Logan. Prior to sentencing a mitigation hearing was held at which time petitioner, through his attorney, expressed his willingness to pay a reasonable amount to the parents of the deceased girl to help defray the expenses of their loss. The trial judge entered an order placing petitioner on probation subject to petitioner’s paying $2500 to the parents of the deceased girl. In its order the court said: “The Court FINDS there are such mitigating and other circumstances to warrant the imposition of sentence for a period of one year from this date on the following terms and conditions: 1. That the defendant personally pay to the parents of the decedent Janice Logan the sum of $2500.00 which shall be in addition to any money paid under the automobile policy; all payments are to be made through the office of the Clerk of the Superior Court.” This order was modified on March 20, 1970 to the extent that payment was to be made no later than May 29, 1970. On May 12, 1970 a hearing on revocation of petitioner’s probation was to be held; however, on this date petitioner paid the sum of $2500 to the Clerk of the Superior Court. Subsequently, on May 18, 1970, petitioner obtained a temporary restraining order preventing the distribution of the money to the parents of the deceased girl. Petitioner then filed a petition for Special Action with the Court of Appeals urging that the trial judge acted without jurisdiction and abused his discretion when he conditioned petitioner’s probation upon petitioner’s paying $2500 in reparations to the parents of the deceased girl. The petition was denied. Petitioner now comes before this Court with a Petition for Review. It is petitioner’s contention that the trial judge abused his discretion and acted in excess of his jurisdiction in setting the amount at $2500 because the trial judge “had no evidence or facts before him as to the amount of injury suffered by the parents of Janice Logan nor did the court have any evidence before it as to the amount of recovery by the parents of Janice Logan under the automobile insurance policy.” In the instant case petitioner was found guilty of vehicular manslaughter under A. R.S. § 13-456, subsec. A, par. 3(b). The trial judge, however, found that in view of the mitigating circumstances petitioner should be placed on probation pursuant to A.R.S. § 13-1657 which provides in part: “A. If it appears that there are circumstances in mitigation of the punishment, or that the ends of justice will be sub-served thereby, the court may, in its discretion, place the defendant upon probation in the manner following: 1. The court may suspend the imposing of sentence and may direct that the suspension continue for such period of time, not exceeding the maximum term of sentence which may be imposed, and upon such terms and conditions as the court determines. * * ” (Emphasis ours). There' is no dispute that under A.R.S. § 13-1657 a judge may condition probation or suspension of sentence upon the defendant’s making' reparation. See Redewill v. Superior Court, 43 Ariz. 68, 29 P.2d 475 (1934). It is also clear that the suspension of sentence is purely a matter of discretion in the trial court and that it is not necessary for the trial court to spell out its reasons for either granting or denying probation. State v. Douglas, 87 Ariz. 182, 349 P.2d 622 (1960). In State v. Douglas, supra, we also had occasion to discuss the meaning of “abuse of discretion” under this statute. We said there: “On several occasions this court has discussed the meaning of ‘discretion’ in its legal context. The essence of these holdings has been that ‘discretion’ means a ‘sound discretion’, and that an abuse of discretion occurs when the decision is characterized by capriciousness or arbitrariness or by a failure to conduct an adequate investigation into the facts necessary for an intelligent exercise thereof. (Cases cited). 87 Ariz. at p. 187, 349 P.2d at p. 625. In the instant case, therefore, the issue narrows to whether the trial judge acted arbitrarily, capriciously or failed to conduct an adequate investigation into the facts before imposing the condition upon petitioner’s probation that he make reparation in the amount of $2500 to the deceased girl’s parents. It is the opinion of this court that the trial judge had sufficient facts before him to warrant imposing the reparation of $2500 as a condition for probation. Prior to setting the conditions for probation the trial judge had before him the pre-sentence report of the probation officer as well as having conducted a mitigation hearing in the matter. It is our opinion that the burden was upon petitioner at this mitigation hearing to bring to the attention of the court any factors which might bear upon the reasonableness of any reparation order and any factors which might bear upon petitioner’s ability, to make reparation. Petitioner failed to introduce any such factors in the instant case. Furthermore, petitioner did not appeal from the order setting forth the conditions for probation nor did petitioner object to the amount of the ordered reparation until approximately one month prior to the end of his probation. There is no disputing the fact that the parents of the deceased girl suffered a loss as a result of her death. Petitioner has failed to show or even allege that the amount awarded as reparation was excessive in terms of' the loss suffered. The action of the Court of Appeals in denying the petition for special action is affirmed; the temporary restraining order is dissolved and the Clerk of the Superior Court is authorized to disburse the $2500 as indicated herein. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and McFARLAND, JJ., concur.

HAYS, Justice. Appellant was tried by a jury and found guilty of assault with a deadly weapon. The testimony at the trial indicates that appellant went to the apartment of Rufugio Esparza with a girl (Maria Acuna) to pick up some clothes belonging to the girl. When they arrived at the apartment Esparza opened the door and the girl entered. From the testimony it is uncertain whether appellant entered the apartment or was about to enter the apartment when a struggle between the two men ensued. Th,e testimony further indicates that during the course of the struggle both appellant and Esparza fell to the ground a couple of times. Sometime during the struggle appellant cut or knifed Esparza with a pocketknife. Appellant testified that he cut Esparza because he got scared when he saw a “bolt” in Esparza’s hand. After the fight appellant walked away from the scene past two witnesses. Appellant raises ten assignments of error. Since we find that the court committed reversible error in giving an instruction on flight it is unnecessary to discuss the other assignments of error. Appellant contends that the trial court committed error by giving an instruction on flight because there is no evidence that in leaving the scene of the struggle appellant attempted to conceal himself. With this position we agree. In State v. Rodgers, 103 Ariz. 393, 442 P.2d 840 (1968), we quoted with approval the following test from State v. Owen, 94 Ariz. 404, 411, 385 P.2d 700, 704 (1963), reversed on other grounds, 378 U.S. 574, 84 S.Ct. 1932, 12 L.Ed.2d 1041, for determining whether the evidence supports an instruction on flight: “Certainly a mere leaving of the scene of a crime is not a fact sufficient to constitute flight under all circumstances * * *. Ordinarily, unless the flight or attempted flight be open, as upon immediate pursuit, the element of concealment or attempted concealment is considered a necessary component.” (Emphasis added). 103 Ariz. at 394, 442 P.2d at 841. In the instant case, the record reveals no attempt by the appellant to conceal hi'mself. He merely walked away from the scene of the knifing. Since appellant did not live in the apartments it is reasonable for him to have left. The evidence discloses no more than a mere departure from the scene which we held in State v. Rodgers, supra, to be insufficient evidence upon which to base an instruction on flight. The giving of such an instruction in these circumstances was prejudicial to defendant. The judgment is reversed and the cause remanded for a new trial. LOCKWOOD, C. J., and UDALL, J., concur.

HAYS, Justice. This matter comes to us on a petition for special action. There are four causes of action involving the same parties and the same issues, Alexander v. Deddens, No. 9930, 9931, 9932, 9933. In each case the petitioner, the Cochise County Treasurer, seeks to have this Court set aside the order of respondent, the Honorable Anthony T. Deddens, Presiding Judge — Juvenile Judge, directing the treasurer to pay counsel fees to Fred P. Talmadge. Mr. Talmadge had been appointed by the juvenile court to represent indigent juveniles on four separate occasions. The issue before this Court is twofold: (1) Does the juvenile court have the statutory authority to order compensation for court appointed counsel in juvenile proceedings ; and (2) if it does, may the court directly order the treasurer to make the payment, or is it necessary to first make a demand upon the county through the board of supervisors? Compensation for appointed counsel for indigents in criminal proceedings and insanity hearings is provided for in A.R.S. § 13-1673. Petitioner contends that since a juvenile proceeding is not classified as a criminal proceeding that the statute does not authorize compensation for counsel appointed to represent indigent juveniles. We do not agree. The statute in question is comparable though not identical to § 987 of the California Penal Code from which it was adopted. See West’s Ann.Pen.Code, § 987. We have previously held that “ * * * when a particular statute is taken from the laws of another state the interpretation of that statute by the courts of that state is ‘highly persuasive’ in our construction of the statute.” Industrial Commission v. Harbor Insurance Co., 104 Ariz. 73, 75, 449 P.2d 1, 3 (1968). Recently, in Luke v. County of Los Angeles, 269 Cal.App.2d 495, 74 Cal.Rptr. 771 (1969), the California Court of Appeals had occasion to construe § 987(a) of the Penal Code which provides compensation for court appointed counsel for persons charged with a crime. Here the attorney was appointed by the superior court to represent an indigent in a narcotics commitment proceeding. The court held that the attorney was entitled to compensation even though a narcotics commitment proceeding is a civil proceeding and § 987(a) of the Penal Code speaks in terms of criminal proceedings. The court felt that it was the intent of the legislature that all court appointed counsel in custodial proceedings be compensated. We agree with this reasoning and believe it to be consistent with the intent of the Arizona Legislature in adopting A.R.S. § 13-1673 from the laws of California. This belief is buttressed by the fact that the statute refers to two types of custodial proceedings, i. e., criminal proceedings and insanity hearings. We believe it would be inconsistent with the intent of the legislature to award compensation to court appointed counsel in a civil custodial proceeding such as an insanity hearing and then to deny such compensation to court appointed counsel in a juvenile proceeding which is also a civil custodial proceeding. Petitioner’s second contention that the juvenile judge should not be permitted to direct the treasurer to pay the ordered fee is without merit. The statute gives the court the power to award fees in “such amount as the court in its discretion deems reasonable, considering the services performed.” It would be inconsistent with this power to prohibit the judge from directing the treasurer to pay the fees he has awarded. This Court, however, takes no position on whether a court should have a claim submitted to the board of supervisors for approval on the customary form or directly order the treasurer to pay the fees. This is a matter which should be governed by the fiscal and administrative practices of the county in which the court sits. If, however, the board of supervisors or any other such body attempts to interfere with the discretion of the court in awarding counsel’s fees then the court has the power to order the treasurer to make payment. Petitioner’s prayer for relief sought in special action is denied. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and McFARLAND, JJ., concur.

LOCKWOOD, Justice: Appellant was convicted below of second degree murder and sentenced to a term of imprisonment of not less than fifteen nor more than eighteen years. He appeals from that conviction. On September 9, 1967, one James Silversmith, a Navajo Indian, was severely beaten. He subsequently died. Eyewitnesses identified the appellant as one of those who was involved in the beating, which took place on a street in Winslow, Arizona, at about noon. Appellant took the stand in his own defense. He admitted that he did hit someone, but claimed it was not the victim. He also denied kicking the victim. Pie bases his defense primarily on the assertion that he was too drunk to form a malicious intent. He introduced evidence, uncontroverted, that he had been on a three-day drinking binge. In addition, the prosecution’s evi dence showed that the appellant had been drinking. The appellant also testified that one Alex Grayhair told him that the victim stole his horses. However, Alex Grayhair denied that he said any such thing. On this appeal, appellant was represented by court-appointed counsel, who filed what is termed an “Anders brief.” See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant raises three questions: “1. Is a defendant who is a Navajo Indian denied equal protection of the laws if tried by a jury selected from a panel on which no Navajo Indians served ? “2. Does a report of stolen chattel constitute sufficient provocation to negative the malice required for a conviction of second degree murder? “3. Is a defendant who is a Navajo Indian denied due process by the trial court’s refusal to permit him an interpreter? Appellant’s first contention is without merit. There was no evidence to show that Navajos are systematically excluded from jury panels. There was a Hopi Indian on the jury panel, although he was not selected as a juror. There was no evidence to show that Navajo Indians should, for equal protection purposes, be considered in a separate class from Hopi Indians. We note that the record shows that the jurors were specifically asked if they had any prejudice against (or for) Navajos. The record shows that the court and both attorneys were very careful to ascertain that the jurors would be fair and not considcr the race of the defendant to be a factor in determining guilt or innocence. There is nothing in the record to support appellant’s contention. Neither has he made a showing that to make an objection to the jury selection would have further inflamed the jury. See Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964). Appellant next urges that he should have been granted an instruction on manslaughter. We agree. A.R.S. § 13-455 defines manslaughter as “the unlawful killing of a human being without malice.” The evidence introduced by appellant tends to show that he was extremely intoxicated. He had been on a drinking binge for three days. The prosecution evidence supports at least some evidence of drunkenness. Since credibility of the witnesses is a factor for consideration by the jury, the jury had a right to consider the defendant’s story. By denying the defendant the instruction on manslaughter, the jury was deprived of the opportunity to determine whether he was too drunk to have the necessary intent of malice, a necessary element of murder in the second degree. The trial court did properly instruct on drunkenness, but left only the alternatives of guilt or innocence. In State v. Saunders, 102 Ariz. 565, 435 P.2d 39 (1967), we held it was error not to instruct on manslaughter, where the defendant’s evidence was that he was in such a state of intoxication that he could not form an intent or was incapable of harboring malice aforethought. Saunders quotes with approval from State v. Fludson, 85 Ariz. 77, 331 P.2d 1092 (1958) in which this Court stated: “It is a well-settled general rule that voluntary drunkenness at the time a crime is committed is no defense, [citation] and while mere drunkenness does not excuse an offense it may produce a state of mind in the accused which incapacitates him from forming or entertaining a malicious intent or that ‘malice aforethought’ which is an essential element of murder in the second degree. Such voluntary intoxication or drunkenness is to be taken into consideration in determining the existence or nonexistence of malice aforethought, which distinguishes murder from manslaughter. ****** “The defendant was deprived of the important right, which the law accorded him, to have the jury pass on the truthfulness of his story, and if they believed that he was intoxicated to any extent to say whether such intoxication prevented him from entertaining the malice necessary to constitute murder in the second degree, and, if so, would reduce the offense to manslaughter. (Emphasis added.)” 102 Ariz. at 568, 435 P.2d at 42. Defense counsel suggests the evidence shows that the heating of the deceased took place on a sudden quarrel or in the heat of passion, upon considerable provocation, further justifying the manslaughter instruction. Malice could still be shown under such circumstances where there is no considerable provocation. Moore v. State, 65 Ariz. 70, 174 P.2d 282 (1946). The evidence here demonstrates no such provocation. Appellant next contends that the trial court erred in refusing to grant him an interpreter for the cross-examination by the prosecuting attorney. From an examination of the record, it appears that the appellant was able to understand English and answer the questions put to him. There were two interpreters in the courtroom whose services could have been used had the trial court felt their need. If the appellant had difficulty with a question the court required the questions to be rephrased. We feel that there was no error in the refusal of an interpreter. Viliborghi v. State, 45 Ariz. 275, 43 P.2d 210 (1935); Escobar v. State, 30 Ariz. 159, 245 P. 356 (1926). Judgment reversed and remanded for a new trial. STRUCKMEYER, C. J., HAYS, V. C. J., and UDALL and CAMERON, JJ., concur. . The purpose of filing an Anders brief is to provide an indigent appellant with an advocate, who will “support his client’s appeal to the best of his ability, unless he finds the case to be wholly frivolous.” In the latter event, he may submit a brief referring to anything that might arguably support the appeal, and the court, not counsel, determines whether the case is wholly frivolous.

HAYS, Justice. Appellant, Mario Carlos Salinas, was tried by a jury and found guilty of first degree burglary and grand theft with a prior conviction. He was sentenced to serve not less than ten nor more than twelve years on each count and the sentences were ordered to run concurrently. From the judgment and sentence of the court he appeals. The burglary and theft took place in an apartment in Phoenix, Arizona occupied by James L. Hyslop. On July 16, 1968, Hyslop arrived home after a three day absence and noticed that the glass next to the lock on his arcadia door was broken. Upon entering his apartment he discovered that numerous suits, sportcoats, slacks and other items of clothing belonging to him were missing. Included among the missing items were approximately forty four neckties. Hyslop testified that he recovered all of this clothing approximately one week later from the police storage room. Donald B. Clark, a neighbor of Hyslop, testified that he arrived home at approximately 3:10 a. m. on July 16, 1968, and observed appellant and two or three other persons in the immediate area of Hyslop’s apartment. Being suspicious, he secured his rifle and returned. As he crossed the street he noticed appellant on Hyslop’s patio. He halted appellant and asked him what he was doing. Appellant replied that he was looking for Hyslop. Clark told appellant to wait but as Clark crossed the street to telephone the police, appellant raced off in an automobile. Clark noticed the license number and the appearance of. the vehicle and immediately telephoned this information to the police. Clark testified that he was approximately six feet from appellant when he halted him, that the lighting was good and that he could see appellant’s face quite clearly. Clark had previously seen appellant in Hyslop’s apartment several days earlier when appellant was giving first aid to Hyslop who had been injured in a bar. Hyslop testi fied that he met appellant on the night that he was so injured. Clifford S. Harden, a Phoenix police officer, testified that on July 16, 1968, at approximately 3:15 a. m., he discovered a vehicle parked in an alley that matched the license number and description as reported by Clark. Harden and another officer proceeded on foot to check the area for the suspect. As they approached a group of people, two persons broke from the group and fled. Harden and his companion caught up with and arrested these individuals, one of whom was appellant. Harden further testified that appellant was intoxicated. After appellant was advised of his rights, he told Harden that he had been at a friend’s house, that he had fled from a man who had pointed a rifle at him and that he was the person who parked the vehicle in the alley. Harden also testified that numerous items of clothing were found in a bush about fifteen to twenty feet from where appellant’s vehicle was parked. This clothing was lying in a pile and included various suits, sport jackets, and approximately fifty neckties. The clothes hangers were still inside the suits and jackets. This clothing was tagged and placed in the police property room. Appellant contends that the state failed to connect him with the crimes charged and that the trial court therefore erred in denying his motion for a directed verdict of acquittal. We disagree. A motion for a directed verdict only challenges the sufficiency of the evidence. State v. Acosta, 101 Ariz. 127, 416 P.2d 560 (1966). The trial court is under no duty to direct a verdict of acquittal if there is substantial evidence that a defendant committed the offense charged. State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969). Although the evidence in the instant case is circumstantial, it tends to raise a strong inference of appellant’s guilt. None of the evidence was conflicting and appellant did not present evidence that would tend to rebut the natural inferences drawn from the case presented by the state. There was no error here. Appellant also argues that the court committed reversible error when it failed to instruct the jury that in order to convict appellant solely on circumstantial evidence, it must find not only that the evidence is consistent with guilt but also that it is inconsistent with every reasonably hypothesis of innocence. Until recently, it was the rule in this jurisdiction that it is reversible error for the court to fail to give the instruction on circumstantial evidence put forward by appellant. However, in State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (1970), this court held that it is not necessary to instruct the jury on the reasonable hypothesis theory of circumstantial evidence where the jury has been properly instructed on reasonable doubt. This holding was based on our opinion that the probative values of direct and circumstantial evidence are “intrinsically similar” and that there was “no logically sound reason for drawing a distinction' as to the weight to be assigned each.” The holding in Harvill applies retroactively to all cases not final at the time it was announced. Since the court properly .instructed the jury on reasonable doubt, it was not error to fail to give the requested instruction. Judgment of the trial court is affirmed. STRUCKMEYER, C. J., and UDALL, J., concur.

McFarland, Justice. Michael L. Brown — hereinafter referred to as defendant — was tried and convicted on two counts of armed robbery and sentenced to serve not less than ten nor more than eleven years on each count, the sentences to run concurrently, in the Arizona State Penitentiary. From his conviction and sentence he appeals. The defendant entered a bar in Tucson, Arizona, between 10:30 and 11:00 p. m., October 19, 1969. He joked and conversed with several customers — and the owner— and drank between three and eight alcoholic drinks. Shortly before 1:00 a. m. on the same night, he left the bar, but immediately returned and proceeded to hold a gun on the bartender, Vernon Hokanson, telling him to put the money from the cash register into a paper sack. He then took approximately nine dollars from a customer which constituted the second count. He told the persons in the bar to line up against the walk-in cooler in the rear of the place, after which he left the bar, and drove away. He did not attempt to hide his identity. The only questions raised on appeal are whether the Court erred in instructing the jury concerning general intent when the crimes charged require a finding of specific intent; whether the Court erred in refusing to instruct the jury that intoxication, if believed, could negate the essential element of specific intent to steal; and whether the defendant’s admission of a prior conviction caused the court to sentence him as if charged with a prior conviction when not so charged. The defendant contends that it was error for the court to instruct on both general and specific intent. He cites as his authority People v. Butcher, 174 Cal.App.2d 722, 345 P.2d 127. In the Butcher case the defendant was charged with robbery, burglary, and rape. The court held that the failure to give an instruction on specific intent as to robbery and giving instruction as to general intent without instructing the jury that such instruction related only to the crime of rape and not to the crimes of robbery and burglary was error, but that such error, when considered with the evidence, did not warrant a reversal. The question of three different crimes — of which only a part required an instruction on specific intent — is not involved in this case. The instructions of the court were complete, and taken as a whole set forth the principles governing the instant case. The court first gave a general instruction to the effect that to constitute a crime there must be a combination of an act forbidden by law and an intent to do the act. While the court instructed the jury that the intent might be inferred it went ahead and stated that in a crime of robbery a specific intent was a necessary fact to be proved in existence in the mind of the defendant to deprive the owner permanently of his property, and that unless such an intent was proven the crime was not committed. This instruction, with the general instruction as to the necessity of the intent, defined the specific intent which had to be proven. These instructions, coupled with the other instructions including the definition of robbery, adequately and correctly advised the jury of the law governing the case. State v. Hardin, 99 Ariz. 56, 406 P.2d 406. Where requested instructions are adequately covered by other instructions as in the instant case, it is not error to refuse them. State v. Michael, 103 Ariz. 46, 436 P.2d 595. The defendant next contends that the court did not properly instruct the jury in regard to the defense of intoxication which if believed could negate the essential elements of specific intent. With this contention, we cannot agree. The court instructed the jury as to the effect of intoxication as set forth in § 13-132, A.R.S., as amended. This we have held is sufficient in determining whether a defendant had the capacity to form intent. State v. Saunders, 102 Ariz. 565, 435 P.2d 39. Defendant also states that in the event the conviction is affirmed, the sentence should be set aside, and the defend ant remanded to the lower court for re-sentencing. He bases this contention on a statement of the court which indicates that the lower court may have been under the impression that the defendant was charged with a prior conviction. At the time of the sentence, the following colloquy between counsel and the court was recorded: “MR. LIEBERTHAL: I would like to ask the Court if he would clarify something. There was some conversation with the probation officer where we talked about whether this was the first offense or second under the Statute. I would ask the Court to make a determination. “THE COURT: I feel that under the Statute he is a second offender. “MR. LIEBERTHAL: May I just make my record to say the defendant was never charged with armed robbery, never convicted of the crime — In this case it is the obligation of the county attorney to charge the defendant with a prior if that’s what he tried to have the defendant sentenced under. Failing to do so, I feel the Court is not bound to treat this as a second offense, but a first offense. “THE COURT: I believe that is all. Court is adjourned.” . It is not plain as to whether the court understood that the defendant was not charged with a prior conviction. While the sentence was within the statutory limit without a prior conviction, the 10-year minimum is the minimum which the court could have sentenced defendant in the event he had been charged with a prior conviction. So it is not clear whether the court gave the defendant a 10-year minimum for this reason. In the case of State v. Williamson, 104 Ariz. 9, 448 P.2d 65, the defendant was charged with a prior conviction; however, the court had not followed the procedure set forth in Rule 180, Rules of Crim.Proc., 17 A.R.S. The sentence was within the statutory limits without the prior conviction. We stated: "* * * This Court should not speculate upon the reason for the length of a sentence which is based upon a plea of guilty with a prior conviction, where Rule 180 is not complied with. * * *” The case was remanded to the Superior Court for determination of the prior conviction, in compliance with Rule 180, supra, and then for re-sentencing. We feel that in the instant case this Court should not speculate as to the meaning of the words used by the court in passing sentence, but should remand the defendant for re-sentencing. The convictions are affirmed. The sentences are set aside, and the defendant remanded for re-sentencing. UDALL and HAYS, JJ., concur.

McFarland, Justice. Alex Crawford, hereinafter referred to as defendant, was tried and convicted of the crime of robbery and sentenced to serve not less than six years nor more than ten years in the Arizona State Prison. From his conviction and sentence he appeals. The defendant was charged with having committed robbery with one Virgil Bohannon. At approximately 1:30 A.M. on the morning of the 22nd day of April, 1969, William D. Spears was on duty at a Shell Service Station located at Yuma, Arizona. (Also known as Bill’s Shell). At approximately this hour he was approached by three men who requested him to furnish them with a fan belt for a car. Spears proceeded into the service station and was looking for the fan belt. As he was turning around to direct a question to those who had requested the fan belt he was hit over the head with a pistol. He got “a fairly good look” at the men and identified the defendant as the one who hit him over the head. He stated that “I got a good look at his face as I glanced up before he hit me.” The defendant and his accomplice then proceeded to remove the cash register. Rolls of change were taken. The cash register was later found in a park. Spears also testified that he had gone to the bank on the afternoon of the 21st and had gotten some rolled coins; that there was a full roll of dimes and quarters and possibly a full roll of nickles. The cash register had some credit cards in it at the time it was taken. Arresting officer Todd Hemingway testified that he found a pistol on the defendant when he was arrested. He also described Spears’ condition at the time he arrived at the service station. He stated he was bleeding from a wound on the head and there was broken glass in the driveway. He arrived at the service station at about 1:40 in the morning. Some four hours later the defendant was found at the San Carlos Hotel with a gun in his possession. The defendant matched the description that Spears had given. Fie was arrested with one Virgil Bohannon who was found with coins and coin wrappers. The defendant had some $60.00 on him which included 18 quarters, 14 dimes, IS nickles and 14 pennies. Officers Richard Bauer and James Gad-dis corroborated the testimony of Fleming-way in regard to the arrest of Bohannon and his possession of rolls of coins and credit cards which had apparently been taken from the cash register. Robert Lee Johnson testified that he had driven three men, Bohannon, Crawford and Curtis, to the service station about 1:25 or 1:30 A.M. on April 22nd. He and Curtis remained outside and Bohannon and the defendant went into the service station. Curtis went in at the front of the service station and he remained outside on the lefthand side thereof. He testified that they took the cash register to Bohannon’s house. He then took his car home and later came back. All of them took part of the money. They later took the cash register over a couple of blocks and left it under a tree. The defendant first questions the sufficiency of the evidence to sustain the convictions, and second, that the evidence of the accomplice is not sufficiently corroborated to sustain a conviction. The defendant contends his identification by Spears was indefinite; that Spears could not have made an identification in the short time before he was hit with a gun; that he contradicted his first testimony that the man who struck him was almost six feet tall which was taller than himself. Fie later testified, after he had seen the defendant at the trial, that he was shorter than he was, and that there were three men when the evidence shows there were only two in the station at the time he was hit; that these contradictions were such that his testimony was discredited and the testimony of the accomplice, Robert Lee Johnson, was not sufficiently corroborative to support his conviction. This court has held in reviewing the suffi ciency of evidence to support a verdict that the evidence must be reviewed in a light most favorable to the state and all reasonable inferences must be resolved against the defendant. State of Arizona v. Reyes, 99 Ariz. 257, 408 P.2d 400. It is only when there is absence of probative facts to support the verdict that a reversal is justified. State v. Thomas, 104 Ariz. 408, 454 P.2d 153. It is not the function of this court to retry conflict in evidence but only whether it is evidence to support the verdict. In State v. Bearden, 99 Ariz. 1, 405 P.2d 885, we said: “We are only concerned with whether there is substantial evidence in support of the verdict. State v. Rivera, 94 Ariz. 45, 50, 381 P.2d 584. Reversible error occurs where there is a complete absence of probative facts to support the conclusion. State v. Mahan, 92 Ariz. 271, 272, 376 P.2d 132; State v. Milton, 85 Ariz. 69, 331 P.2d 846. When we consider whether the verdict is contrary to the evidence we do not decide whether we would reach the same conclusion as the jury. Rather, we decide whether there is competent evidence to support the conclusion found or, alternatively, whether the verdict was found without evidence from passion, prejudice or other improper motive. Quong Yu v. Territory of Arizona, 12 Ariz. 183, 186, 100 P. 462. Evidence is not insubstantial simply because the testimony is conflicting or reasonable persons may draw different conclusions therefrom. Macias v. State, 39 Ariz. 303, 307, 6 P.2d 423. Substantial evidence means more than a scintilla and is such proof as a reasonable mind would employ to support the conclusion reached. Henzel v. Cameron, 228 Or. 452, 365 P.2d 498, 503. It is of a character which would convince an unprejudiced thinking mind of the truth of the fact to which the evidence is directed. Grange v. Finlay, 58 Wash.2d 528, 364 P.2d 234, 235. If reasonable men may fairly differ as to whether certain evidence establishes ■ a fact in issue then such evidence must be- considered as substantial. Smith v. Schumacker, 30 Cal.App.2d 251, 85 P.2d 967, 972; Davis v. Hartley, 69 N.M. 91, 364 P.2d 349, 351.” The rule in regard to evidence sufficient for the corroboration of an accomplice is set forth in State v. Springer, 102 Ariz. 238, 428 P.2d 95: “It is commanded by statute in this state that no conviction shall be had on the testimony of an accomplice unless it is corroborated by other evidence which tends independently to link the defendant with the commission of the offense. A.R.S. § 13-136. Our case law interpreting this statute provides, among other things, that evidence which in only a ‘slight’ degree tends to implicate the defendant is sufficient to corroborate an accomplice’s testimony, State v. Miller, 71 Ariz. 140, 224 P.2d 205; that the corroborating evidence need not be sufficient to establish the defendant’s guilt, State v. Goldthorpe, 96 Ariz. 350, 395 P.2d 708; that the evidence need not directly connect the defendant with the offense but need only tend to do so, State v. Sheldon, 91 Ariz. 73, 369 P.2d 917; that the necessary corroboration may be established by circumstantial evidence, State v. Bagby, 83 Ariz. 83, 316 P.2d 941; and that, ‘[i]n the last analysis * * * the facts of each case must govern.’ State v. Sheldon, supra, 91 Ariz. at p. 79, 369 P.2d at p. 922.” There was evidence corroborating the testimony of the accomplice in the instant case. For example, the cash register was found at the approximate location as téstified to by Campbell. Coins in the approximate denominations were found upon the defendant and others as testified to by Spears and officers. We cannot agree with the contention of the defendant in regard to the sufficiency of the evidence. Spears definitely identified the defendant as the person who struck him over the head with a pistol. The testimony of the accomplice also supports the conviction. Any discrepancy in his evidence merely goes to the weight to be given the evidence which is a question for the jury. State v. Davis, 104 Ariz. 142, 449 P.2d 607; State v. Seymour, 101 Ariz. 498, 421 P.2d 517; State v. Foggy, 101 Ariz. 459, 420 P.2d 934; State v. Roberts, 85 Ariz. 252, 336 P.2d 151. Judgment affirmed. UDALL and HAYS, JJ., concur.

STRUCKMEYER, Chief Justice. This appeal is from a determination of heirship in which the rights of 103 claimants under the will of James Kidd were adjudicated. James Kidd was a bachelor of frugal nature who came to Arizona about 1920. On January 2, 1946, he wrote a holographic will which was sealed in an envelope and placed in a safety deposit box. A few years later, Kidd disappeared without a trace. But it was not until shortly before March 6, 1964 that his will was discovered and on that date offered for probate. On proof that Kidd had absented himself from Maricopa County, Arizona for such a period as to be presumed dead, see A.R.S. § 12-509, his will was admitted to probate and the First National Bank of Arizona was appointed as Administrator With Will Annexed. Pursuant to A.R.S. § 14-641, the First National Bank filed a petition to determine heirship and subsequently moved for summary judgment, asking the court to declare that Kidd’s will created a valid charitable trust. The trial court granted the motion of the bank, declaring that Kidd’s will created a valid charitable trust, and set for hearing the petitions, statements of interest, and claims of those individuals and organizations who sought distribution of the estate under the terms of the will. Hearings were held which continued for a period of almost three months — the trial court taking testimony and receiving exhibits from more than sixty claimants in addition to the more than forty claims submitted without oral testimony. After extended consideration, the court decreed that the claim of the Neurological Sciences Foundation be granted, and that the residue of James Kidd’s estate, amounting to about $175,000.00, be distributed in trust to be used for the purpose of research to be performed and carried on by the Barrow Neurological Institute of Phoenix, Arizona. It rejected the petitions and statements of interest of the other 102 claimants. Kidd’s holographic will provided: “This is my first and only will and is dated the second day in January 1946. I have no heirs have not been married in my life, after all my funeral expenses have been paid and #100. one hundred ■ dollars to some preacher of the gospital to say fare well at my grave sell all my property which is all in cash and stocks with E. F. Hutton Co Phoenix some in •safety box, and have this balance money •to go in a reserach or some scientific ■•proof of a soul of the human body which ■leaves at death I think in time their can be a Photograph of soul leaving the human at death, James Kidd (dated 2nd January 1946) some cash in Valley bank some in Bank America LA Cal" While the proceedings in the court below were extensive, the questions raised on this appeal by the admission to probate of this extraordinary document can in the main be determined perfunctorily. We note first, as did the court in Opinion of the Justices, 109 N.H. 335, 251 A.2d 330, at 330: “In this state the right of an individual to dispose of his property by will to individuals, public and private corporations, charities and public entities, * * *, is singularly free from restrictions or limitations, constitutional, statutory or judicial.” The power to make a will is a power that belongs to the testator and is not subject to a veto power of the courts. So, unless limited 'by statute, a testator may dispose of his property by will as he pleases. In In re Greene’s Estate, 40 Ariz. 274, 11 P.2d 947, 949, this Court said: “Nor is a court concerned with the abstract justice or injustice of the will. [Citation] Unless it clearly appears the testator did not fully realize what he was doing with his property, it was his to dispose of as he pleases.” And in In re Nolan’s Estate, 56 Ariz. 353, 108 P.2d 385, 387, we said : “The general rule is that in the absence of statutory provision limiting it, a man may dispose of his property as he sees fit, regardless of the fact that the prevailing code or morals may consider such disposition as unwarranted from any standpoint.” Other courts have said: “The value of property consists largely in the right to dispose of it as the owner desires, and this power of disposal, either by deed or by will, is not to be interfered with so long as the requisite mental capacity exists. Cole v. Drum, 109 Kan. 148, 197 P. 1105, and cases cited therein. The right to make a will includes the right to make it according to the testatrix’ own desires, subject only to the statutory restrictions. It is no condition of this right that the will shall please a jury, or a court, or the testatrix’ relatives, or anyone else. If the will was properly executed, and the testatrix was of competent sanity, and no undue influence has been established, it is the testatrix’ will, and no tribunal is appointed on earth to inquire whether it ought to have been her will.” In Re Millar’s Estate, 185 Kan. 510, 345 P.2d 1033, 1041. “Though a testator may be aged, infirm, and sick he has the right to dispose of his property in any manner that he may desire if his mental ability meets the law’s tests. It is not for the courts, juries, relatives, or friends to say how property should be passed by will, or to rewrite a will for a testator because they do not believe he made a wise or fair distribution of his property.” Farmer v. Dodson, 326 S.W.2d 57, 61 (Tex. Civ.App.). “ ‘No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise, or the good. A testator is permitted to be capricious and improvident, and is, moreover, at liberty to conceal the circumstances and the motives by which he has been actuated in his dispositions. Many a testamentary disposition may seem to the world arbitrary, capricious and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily.’ ” In Re Wayne’s Estate, 134 Or. 464, 291 P. 356, 362. And see also, In re Woehr’s Estate, 166 Cal.App.2d 4, 332 P.2d 818, 826; In re Heaton’s Estate, 404 Pa. 360, 172 A.2d 293, 296-297; Feiler v. Feiler, 149 Ohio 17, 77 N.E.2d 237, 240. Appellants are six of the 102 claimants whose statements of interest and claims were disapproved by decree of the court below. Four of the appellants, Emma G. Clausser, Joe H. Cerny, Joseph W. Still, M.D., and Russell Dilts, urge that the trial court erroneously ruled that a valid charitable trust was created by the words used in Kidd’s will. They argue that the words in the residual clause, “ * * * have this balance money to go in a reserach or some scientific proof of a soul * * .* ”, are in the disjunctive, and that Kidd’s, intent was first, not to create a trust but to give an outright bequest to any person who had “scientific proof” of a soul which leaves the human body at death, and second, that a trust be established only if such “scientific proof” was not available. Appellant Clausser believes she has such proof. She claims she saw her soul leave her body during a volunteer experiment in Stuttgart, Germany in 1937. Appellant Cerny’s proof is in the nature of an inductive argument stemming from biblical writings. Appellant Still argues that he has “some scientific proof” (without stating it) at the present time, but he wishes to do further research based upon a thesis developed from his work in the fields of biochemistry, physiology, psychology, and sociology. Russell Dilts’ unverified ' petition and statement of interest asserted that since 1948 he has engaged in ..the pursuit of scientific knowledge of psychical and spiritual phenomena including manifestations of the human soul. In this court he incorporates in his argument the arguments contained in all the briefs filed by the other appellants. A further reference to the Still and Dilts claims will be made later. We think that the intent to make a testamentary trust rather than testamentary bequest is clear. The single most important element in the creation of a testamentary charitable trust is the manifestation by the testator of a charitable purpose. Kidd expressed the wish that research be conducted in a specific area— the existence of a soul of the human body which leaves at death. Such a purpose could have been considered by the trial co.urt as advancing education or religion. Both educational and religious purposes have been recognized as charitable in nature, Restatement (Second), Trusts § 368, §§ 370-371 (1957). Although Kidd did not use language indicating the establishment of a trust, the ab- - sence of words of “trust” or “trustee” is not fatal. “e. Direct gift to charity. If the owner of property devises or bequeaths it for charitable purposes, and not only does not name a trustee but also does not use language indicating that the property is to be held upon trust, nevertheless the disposition is valid. Thus, if a testator bequeaths a certain sum fto charity,’ a charitable trust is created. So also, a charitable trust is created where the testator directs that a certain sum should be used to aid needy students, or to assist the poor. In such cases the court will either appoint a trustee to carry out the purpose or will approve a scheme to carry it out. * * *” Restatement (Second), Trusts § 397, comment e (1957). And see, In re Quinn’s Estate, 156 Cal.App.2d 684, 320 P.2d 219, and Wilson v. Franz, 359 S.W.2d 630 (Tex.Civ.App.). A literal reading of the clause “ * * * have this money to go in * * * some scientific proof” is more indicative of the intention to create a trust than an absolute bequest. We gather from the record in the court below that as of the date of the execution of Kidd’s will there was no accepted scientific proof of a soul of the human body. Accordingly, Kidd must have addressed this clause to the future, contemplating scientific research leading to proof of a soul which leaves the body at death. Kidd’s will clearly evidences his belief in the basic elements of historic Christianity — a belief in human responsibility, in a transcendent God, and in human survival of bodily death. Kidd was not deluded by modern secularism into assuming that the Christian view of the world is so dull and pointless that it is not worth investigating. The affirmation of God as taught by the Christian Creed — the Communion of Saints, the Resurrection of the Body, and the Life Everlasting' — is more satisfying to the intellect and more enriching to the human personality than its etiolated substitute, scientific humanism, the pursuit of which has led to materialism and the lack of moral responsibility. The thrust of the attack made by the two remaining appellants is directed against that part of the judgment of the court below finding that the Barrow Neurological Institute is qualified to execute the trust. The record in this respect may be summarized as follows: The Barrow Neurological Institute was founded in 1962 as part of the St. Joseph’s Hospital of Phoenix, Arizona. The general area of research carried on by Barrow is into the normal and abnormal functioning of the nervous system, which includes the brain, the spinal cord, sense organs, peripheral nerves and central control of muscular activity. Barrow carries on specific research studies into various aspects of the human nervous system to the end of increasing man’s knowledge of its complex functions. Dr. Editardo Eidelberg, Chief of the Laboratory of Neurophysiology, Chairman of the Department of Neurobiology, and Director of Research for the hospital, testified that Barrow has never and does not intend, at least in the foreseeable future, to do research in whether there exists a soul to the human body. He testified: “Q In other words, if I understand you correctly then, there would be no specific attempt to use those funds for scientific research to determine whether there was a soul separate and apart from the central nervous system as such? A Do you mean by that to directly test that question experimentally? Q Yes. A The answer is no, sir, because at the moment with methodology presently available, we don’t think it is a testable question. It may be a good question, but it is not a testable one.” The impact of the totality of the testimony of the witnesses for Barrow Neurological Institute is that the phenomena laymen ordinarily ascribe to the soul can be explained as part of the functioning of the central nervous system and that Barrow would not attempt to isolate the soul from the central nervous system as a separate and distinct entity. Since Kidd left his estate for research or scientific proof of a soul “which leaves at death”, he obviously contemplated that the soul was a separate entity, distinct from the body or its central nervous system and surviving the body’s physical dissolution. Manifestly, the Barrow Neurological Institute does not qualify under the plain intent of Kidd’s will. At least two of the appellants, the American Society for Psychical Research, Inc. and the Psychical Research Foundation, Inc., are qualified to carry out the specific purpose expressed in the will of James Kidd. The American Society for Psychical Research was formally organized in 1906, principally through the efforts of William James, thought generally to be the most eminent of American psychologists. This society has a working capital of approximately $700,000.00, it publishes a quarterly journal, and its membership has included such well known figures as Sigmund Freud, Arthur J. Balfour, Margaret Mead, and J. B. Rhine. The American Society for Psychical Research is now headed by Dr. Gardner Murphy, who is also presently the Director of Research of the Menninger Foundation. One of the stated purposes of the Society is psychical research in all of its aspects, of which “survival research” is one of its recognized subdivisions. As Dr. Murphy explained, “Psychical research is the study of psychological processes for which we have no physical explanation as physics now exist.” Dr. Murphy further explained that most of the phenomena associated with the field of psychical research are some type of telepathy or clairvoyance or related processes. As to “survival research” itself, the American Society for Psychical Research studies and disseminates information as to “crisis apparitions” (whereby a person receives a “vision” of another person undergoing a crisis experience, often death, at another place), “deathbed visions” (whereby a dying person appears to undergo a transformation allowing him to see into another world), “physical changes in the surroundings” (whereby the death of a person is signaled by the disturbance of a physical object some distance away), and “out-of-the-body experiences” (whereby a person in a sleeping or comatose state appears to himself to wander forth from his body and take up a station some distance away, purportedly sometimes to be seen there by others). Dr. Murphy testified that the American Society for Psychical Research would use the Kidd funds to make further studies and experimentation to determine whether a measurable physical event occurs at the moment of death. Dr. Murphy testified that the American Society for Psychical Research would attempt to measure whether there are “material aspects in human psychic existence” by the use of such equipment as photography, especially infra-red photography, weight and pressure and temperature measures, photoelectric beams, and sound instruments. Dr. Murphy summarized the view of the American Society for Psychical Research as to how such experimentation would tend to prove there is a “soul” which survives at the time of death : “Q How would this tend to prove there is a soul which survives at the time of death? A The issue is, classically, whether the soul has a material aspect or is purely psychological without a material aspect. All of the experiments I am trying to describe do involve a physical aspect. They do suggest whether or not at the moment of death the soul, the entity which gives life to the individual, simply departs as a psychological or spiritual entity, or whether it has material implication which might even be photographed. I think this type of research would enrich our understanding of what the moment of death is. It may enlarge our comprehension as to what we mean by the word ‘soul’.” The Psychical Research Foundation was founded in 1961 for the sole purpose of engaging in “scientific and educational activities proximately directed toward securing and disseminating reliable information . with respect to the survival upon termination of the living organism of the mental, spiritual, and personality character of man . or any parts or aspects of them.” Joseph Gaither Pratt, president and member of its board of directors, is a member of the faculty of the Department of Psychiatry of the University of Virginia. His position is as a psychologist, in which position he does full-time research in the field of parapsychology. Pratt received an A.B. “degree from Duke University, a master’s dé'gree in psychology, and completed his ‘ thesis and all requirements for a Ph.D. in 1936. He served as research assistant to Dr. J. B. Rhine at Duke University and thereafter spent two years with Dr. Gardner Murphy at Columbia University in experimental work in extrasensory perception. He rejoined Dr. Rhine as a member of his research staff, doing full-time research in parapsychology. There he stayed, with the exception of four years during the second World War, until 1964 when he joined the staff of the University of Virginia. Dr. Pratt testified that there are two principal areas in the field of psychology, the conventional, which is largely dedicated to attempting to understand behavior in human nature in terms of physical principles, and the parapsychological, which are those exceptional things which occur which come about by noting that there arc exceptions that do not fit into the ordinary conventional physical considerations. Dr. Pratt has been the author and co-author of books in the field of parapsychology and has published some eighty to ninety articles on the subject. Dr. Pratt further testified that the Psychical Research Foundation was founded by Charles E. Ozanne who felt that there was a need for some organization that would more explicitly, more specifically concentrate on work in the area of survival interest through scientific investigation. He founded the Foundation in order that there be an organization that would be exclusively dedicated to that purpose. In addition to its board of directors, it has an advisory committee of such people as Professor Gardner Murphy, Professor C. D. Broad, who is described as a world famous philosopher at Cambridge University, author of several books concerned with the problem of the evidence bearing upon the survival question, and Professor H. H. Price of Oxford University, recently retired. Dr. Pratt stated that the net worth of the Psychical Research Foundation was somewhere between $300,000.00 and $350,-000.00, in trust with the Wachobia Bank in Durham, North Carolina. Dr. Pratt testified that the Foundation has been involved in direct experiments in the field of survival research and that research reports have been published in the literature of journals which are dedicated to the publication of religious and scientific work in this field. He testified that “soul” is a term that everyone in common language understands as applying to some aspect, a part of man’s nature, which we generally conceive would survive death. It was his opinion that Kidd was concerned with having research done on the question of whether some aspect of man’s nature survives and if it does, we can call this aspect “soul” or “spirit” or what you will. The Psychical Research Foundation has been from its inception engaged in such specific and restricted line of endeavor. It is apparent from what has been summarized of the purposes and operations of the American Society for Psychical Research and the Psychical Research Foundation that at least two organizations exist which- the court below could have found were competent to carry out the testamentary trust established by Kidd’s will. The appellees Neurological Sciences Foundation and Barrow Neurological Institute urge that this appeal cannot be decided unless a transcript of the evidence of all 103 claimants is furnished on appeal, instead of only those parties involved in the appeal. But we think otherwise. The basis of the claim by the Barrow Neurological Institute is clearly expressed in the transcript of the testimony of its officers. They do not consider it possible to discover proof of a soul which leaves at death and, consequently, do not propose to attempt scientific research to that end. No other testimony can possibly change these facts. Consequently, the court does not need the testimony of other claimants in order to determine the merits of the claim of Barrow. The appellants Joseph W. Still and Russell Dilts assert that they wish to and are competent to seek scientific proof of a soul of the human body which leaves at death. Accordingly, this case is reversed with directions that the court below enter into a final determination as to which of the four appellants, Joseph W. Still, Russell Dilts, the American Society for Psychical Research or the Psychical Research Foundation, is most suitable to carry out the trust expressed in Kidd’s will. Judgment reversed with directions. HAYS, V. C. J., LOCKWOOD, J., and McFARLAND, J., Retired, concur. Note: The Honorable JAMES DUKE CAMERON, Justice, having disqualified himself, the Honorable ERNEST W. McFARLAND, Justice, Retired, was called to sit in his stead.

HOLOHAN, Vice Chief Justice. The above named defendants were all sentenced to death after convictions for first degree murder with aggravating circumstances. Their convictions have been affirmed by this court. Each of the defendants was represented by either the Maricopa County Public Defender or the Pima County Public Defender. The Attorney General and the Maricopa County Attorney filed motions in the superior court to prevent the Maricopa County Public Defender from representing the above defendants in federal court. The motions also sought to limit the public defender to representation of the defendants in state court only. Similar motions were filed by the Attorney General and the Pima County Attorney against the activities of the Pima County Public Defender. The Superior Court of Maricopa County granted the motions of the Attorney General and the Maricopa County Attorney. The defendants filed a timely appeal (No. 5063). The Superior Court of Pima County denied the motions of the prosecutors, and the Attorney General and the Pima County Attorney filed an appeal (No. 5114). We ordered the appeals consolidated because they involved essentially the same issues and principles of law. The State contends that the duties of the public defender do not include representation of defendants in federal proceedings. We agree. We find nothing in A.R.S. § 11-584 defining the duties of the public defender which would allow the public defender to represent indigent defendants in the federal court system. The statute enacted was meant to provide representation for indigents in the state court system. It was expected that the federal system would provide its own means for supplying representation for indigents in its court. The federal courts are, pursuant to 18 U.S.C. 3006(A)(g), authorized to appoint and compensate counsel for the representation of indigents seeking relief from state convictions pursuant to 28 U.S.C. 2254. Normally the foregoing would be sufficient to resolve the controversy, but the present status of the cases of the named defendants presents a different and more difficult problem. The defendants contend that neither of the superior courts had jurisdiction to consider the motions filed by the Attorney General and the County Attorneys; further, the defendants contend that the attorneys for the State have no standing to challenge the representation.afforded them. Knapp v. Hardy, 111 Ariz. 107, 523 P.2d 1308 (1974). It must be conceded that the superi- or court, prior to the filing of the motions by the prosecutors, had completed all proceedings applicable to the trial and sentence of the defendants. Any possible future proceedings in the superior court would be under Rule 32, Rules of Criminal Procedure dealing with post conviction remedies. Absent a Rule 32 proceeding, the jurisdiction of the superior court over the defendants had ceased. The superior court was without jurisdiction to act on the motions of the Attorney General and the County Attorneys. In addition, the majority opinion in Knapp v. Hardy, supra, questions the authority of a prosecutor to challenge the selection of counsel for a defendant once the issue of indigency has been established. The indigency status of the defendants in these matters is not questioned. Under Knapp, supra, it is very doubtful that the prosecutors had any standing to question the representation of the defendants. The Board of Supervisors, the body charged with establishing, employing and paying the Public Defender, appears to be the more appropriate party to complain of actions by the Public Defender which might be in excess of his authority. See A.R.S. §§ 11-581 & 582. Because of the current legal status of the named defendants, we hold that the motions at issue filed by the Attorney General and the County Attorneys should have been denied; therefore, the order of the Superior Court of Pima County (No. 5114) is affirmed, and the order of the Superior Court of Maricopa County (No. 5063) concerning the motions of the prosecutors is reversed with directions to enter an order denying the motions. HAYS, J., concurs.

CAMERON, Justice. We granted this petition for special action pursuant to Art. 6, § 5 of the Arizona Constitution and Rule 1, Rules of Procedure for Special Actions, 17A A.R.S., along with Gladden Farms, Inc. v. State, 129 Ariz. 512, 633 P.2d 325 (1981), No. 15374, and City of Sierra Vista v. Babbitt, 129 Ariz. 524, 633 P.2d 333 (1981), No. 15360, filed this day, because the question raised is one of state-wide importance and there is no equal, plain, speedy and adequate remedy by appeal. The facts necessary for a determination of the matter are as follows. The land in question was located in Cochise County and leased by Dan and Joseph Cracchiolo, respondents and real parties in interest, under a grazing lease issued by the petitioner, Arizona State Land Department, when the City of Sierra Vista filed an application to purchase the land. On 27 September 1979, the Arizona State Land Department issued a certificate of purchase for 640 acres of Section 34 to the City of Sierra Vista for the “purpose of wastewater treatment facilities, disposal of wastewater as well as other governmental purposes including park and recreation uses.” The land was appraised at $960,000.00 or $1,500.00 per acre. The City of Sierra Vista paid $96,000.00 down and was to pay the balance of $960,000.00 in annual installments of $34,560.00 with interest at 7% per annum. The City of Sierra Vista accelerated payment and paid the outstanding balance in the sales agreement on 10 December 1980. The lessees challenged the sale to Sierra Vista in the Superior Court of Cochise County. On 9 December 1980, Judge Richard J. Riley granted the lessees’ motion for summary judgment. The judgment provided in part: “ * * * that the sale to the City of Sierra Vista of Section 34, Township 21 South, Range 21 East, Cochise County, Arizona, was and is void and of no force and effect; that the provisions of Arizona Revised Statutes, Sec. 37-132(4) to the extent that those provisions purport to authorize sale of State trust lands to the City of Sierra Vista without public auction is in contravention of the Enabling Act, Sec. 28, and the Constitution of Arizona, Art. X, * * * ” From this judgment, the Arizona State Land Department brought this petition for special action which we accepted for the reasons stated above. The City of Sierra Vista was not a party to the action between the lessees and the State Land Department in the trial court. The City of Sierra Vista filed a separate action in this court. Because the City of Sierra Vista asked for different and additional relief in its separate action, we denied a motion to consolidate. As to the major issue, we have held in Gladden Farms, Inc. v. State, supra, that Sec. 28 of the Arizona Enabling Act, 1 A.R.S., requires that a sale of a fee to a state agency, the Arizona Division of Emergency Services, must be by advertisement, auction and sale to the “highest and best” bidder. The same reasoning applies with equal force when a municipal corporation such as the City of Sierra Vista is the purchaser of state school trust lands. Any such sale is void, and insofar as the statute, A.R.S. § 37-132(A)(4), would allow such a sale without auction and bid, the statute is contrary to the Enabling Act and is also void. A.R.S. § 37-249; Sec. 28, Enabling Act, 1 A.R.S. The judgment of the Superi- or Court declaring void the sale of the land to the City of Sierra Vista is therefore affirmed. There is one other matter we must decide in this case. The Arizona State Land Department contended in the trial court that the lessees did not have standing to bring the action in the Superior Court because they had failed to exhaust their administrative remedies. The order, from which the lessees appealed this matter to the Superior Court reads as follows: “The Commissioner has and does hereby appraise the land at $1500 per acre. Total land Appraisal, $960,000.00, and the Improvements at $11,436.00. The Department determines that the interests of the State will not be prejudiced by the sale of said land and it is the decision of the Commissioner and Department that said land and improvements be sold according to the provisions of the related law.” The Department contended that A.R.S. § 37-214(A), which provides: “An appeal from a final decision of the state land commissioner relating to classification or appraisal of lands or improvements may be taken to the board of appeals by any person adversely affected by the decision. * * * ” requires that the matter had to be submitted to the Board of Appeals of the State Land Department before appealing the matter to the Superior Court. We do not agree. The lessees appealed to the Superior Court on 21 September 1979. A.R.S. § 37-214(D) then provided: “An appeal from a * * * final decision of the commissioner not relating to the classification or appraisal of lands or improvements may be taken by the commissioner or any person adversely affected by the decision to the superior court * The lessees do not question the appraisal of the land or the improvements thereon. They were questioning the decision of the Commissioner to sell the land. Therefore, an appeal from a final decision of the land commissioner “relating to classification or appraisal of lands or improvements” as provided by A.R.S. § 37-214(A) was not involved. Instead, they were appealing from a final decision of the commissioner “not relating to the classification or appraisal of lands or improvements,” according to former A.R.S. § 37-214(D). The lessees were, in effect, appealing a decision of the commissioner determining that the land and the improvements be sold pursuant to the request of the City of Sierra Vista. The lessees, therefore, had standing to bring the action into the Superior Court. Affirmed. STRUCKMEYER, C. J., HOLOHAN, V. C. J., and HAYS, J., concur. NOTE: Justice FRANK X. GORDON, Jr., did not participate in the determination of this matter.

OPINION BIRDSALL, Judge. Appellant leased an apartment in its complex to appellees. A “soap and grab” fixture was installed in the tile wall by the tub in the bathroom of the unit. Appellee, Charles Shirkey, was injured when the fixture came out of the wall as he was using it to support himself in getting out of the tub. A jury was waived and the trial court awarded damages to appellees for the injuries sustained. This appeal followed. The standard of care for the landlord to his tenant as set forth in Cummings v. Prater, 95 Ariz. 20, 386 P.2d 27 (1963) is: “[T]he landlord is under a duty of ordinary care to inspect the premises when he has reason to suspect defects existing at the time of the taking of the tenancy and to either repair them or warn the tenant of their existence”. Id. at 26, 386 P.2d at 31. In that case the Supreme Court quoted from 2 Harper & James, the Law of Torts, Sec. 27.13, the following as a test for determining whether a condition is unreasonably dangerous: “If people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight”. Id. at 27, 386 P.2d at 31. In Presson v. Mountain States Properties, Inc., 18 Ariz.App. 176, 501 P.2d 17 (1972), Division One held that the landlord had a duty to repair unreasonably dangerous instrumentalities that could foreseeably cause injury to the tenant. The court, however, refused to apply the contractual theory of implied warranty of habitability, a more strict standard which has been followed in some states. See Annot., 64 A.L.R.3d 339 (1975). The Supreme Court applied Prater in deciding McFarland v. Kahn, 123 Ariz. 62, 597 P.2d 544 (1979). Prater involved a stone slab several inches higher than the path leading to the garbage cans in the alley. The court held that the slab did not constitute an unreasonably dangerous condition. In McFarland the injury resulted from a youngster tripping over a lawn sprinkler head and the court held that since it was open and obvious, it was not unreasonably dangerous. We must consider the evidence in this case involving the soap and grab most favorably to support the trial court’s finding of liability applying the law as set out in Prater. The soap and grab was a bathroom fixture installed in the third tile above the tub. It could be installed any place on the bathroom wall near the tub and is often installed in the fourth tile where it would be I2V4" from the top of the tub. The point of installation is not an issue. The unit has a receptacle for a bar of soap and a bar which is used for hanging a wash cloth or for people to hold while maneuvering in or getting out of the tub. Although the unit is not intended to support a person getting out of the tub it is commonly used in that manner. The soap and grab in this case was porcelain and had only Vi" for recess into the wall. Other models have either more recess or are made of metal thus making them safer. In order to properly install the porcelain Vi" model extra precautions should be taken to fasten and cement it to the wall so that it will not come out as it did in this case. Without removing the unit from the wall no one could tell how securely it was fastened. Nor could one tell it was a Vi" recess model. Appellees’ expert witness, an experienced licensed ceramic tile contractor, testified there was no way to tell the model or manner of installation without completely removing it from the wall. Not even a person familiar with such installation would know unless he installed it. There is no evidence that appellant either installed the unit or had it installed or that any such unit had proven defective in any of the other apartments. There is no evidence that anyone knew that either the unit or its installation was in any way defective. Appellant’s employee, engaged to do light maintenance work around the apartments, testified that, prior to this incident, he had told some of the female tenants not to use the soap and grab to get out of the tub because he believed it was not intended for that purpose. The sole issue in this case is whether appellant should have suspected the soap and grab as installed constituted a dangerous condition. If so then it was under a duty to either repair it or to warn appellees. If not, then it should not be held liable. Since appellant did not know that the soap and grab had not been properly installed and had no way of knowing without removing the unit and had no reason to believe it should have removed it for the purpose of inspection, there is no way that it could have suspected that it was dangerous because of its installation. Can appellant be held liable because the soap and grab, because of its location and appearance, was likely to be used by tenants to support themselves while getting out the bathtub? There is no reason to find that appellant should have any greater foresight in this regard than the tenants themselves. Applying the test from Harper & James, supra, the tenants could be expected to take perfectly good care of themselves without further precautions. We fail to see how appellant acted unreasonably in not warning appellees that the soap and grab should not be used for support when, if appellant is presumed to have such knowledge, then appellees should be presumed to have the same knowledge. The judgment of the trial court is not supported by the evidence under applicable law. Reversed and remanded with directions to enter judgment in favor of appellant. HATHAWAY, C. J., and HOWARD, J., concur.

STRUCKMEYER, Chief Justice. This special action challenges the trial court’s refusal to permit John Foreman, a member of the Maricopa County Public Defender’s Office, to withdraw as criminal defense attorney for Louis Anthony Rodriguez. This Court accepted jurisdiction and, believing that the defendant’s right to effective assistance of counsel would be damaged while a written opinion was prepared, we ordered the trial court to allow the Maricopa County Public Defender’s Office to withdraw and to appoint new counsel. We further suspended the time limits of Rule 8.2, Rules of Criminal Procedure, and directed that our written decision would follow. Rodriguez, at the time of filing this petition, was under indictment for fifteen counts of sexual assault, sexual abuse, kidnapping, and first and second degree burglary. Since Rodriguez was indigent, the Superior Court appointed the Marciopa County Public Defender to represent him. One member of that office, John Foreman, was assigned the case. A defense to the charges against Rodriguez was his identification as a participant in the offenses. In August 1980, another member of the Public Defender’s Office was assigned to represent a person by the name of Frank Silva, who was also charged with numerous counts of sexual assault. Silva is not charged with any of the crimes for which Rodriguez was indicted and there is absolutely no indication that Silva has any information about the crimes for which Rodriguez stands accused or that any information concerning Rodriguez’s activities was given by Silva to the Public Defender’s Office. Rodriguez’s counsel, Foreman, became aware that his office represented Silva in early September. He approached counsel representing Silva and inquired of Silva’s physical appearance and the charges against Silva. Foreman states that this conversation was purposefully kept general and that it did not involve any privileged or confidential information. Foreman determined that Silva’s appearance was similar to Rodriguez’s. He therefore decided to call Silva as a defense witness and subpoenaed him for Rodriguez’s trial. Foreman’s purpose in calling Silva as a witness was to show the jury the similar appearance between the two men in order to impeach the witnesses’ identifications of Rodriguez. Foreman advised Silva’s counsel to withdraw from Silva’s case. This was done, and the trial court appointed Silva counsel from other than the Public Defender’s Office. Thereafter, a hearing was held to determine if Silva could be required to appear at Rodriguez’s trial. During this hearing, Foreman indicated that he might have to withdraw as counsel for Rodriguez because of his office’s past representation of Silva. The next day, the Maricopa County Attorney moved to disqualify the entire Public Defender’s Office from the representation of Rodriguez. After obtaining an informal ethics opinion from the State Bar that continued representation of Rodriguez would involve an appearance of impropriety, Foreman moved the court to be permitted to withdraw. Rodriguez opposed the withdrawal, objecting to any more delays in his trial and, additionally, for the reason he believed Foreman was an effective lawyer. Rodriguez told the court that if Foreman was allowed to withdraw, he would go to trial without counsel. The trial court denied Foreman’s motion. Instead, it appointed another attorney, stating: “ * * * to investigate only that aspect of the defense as it concerns Mr. Silva, and if he finds, as a result of that investigation, that there is something which may be admissible during the course of this trial, then [he] will handle that aspect of the case * * *. * * * if he finds there may be something relevant or material, he is to present that evidence on behalf of Mr. Rodriguez, and also do any cross-examination in that regard.” Rodriguez objected to this arrangement, arguing that he wished Foreman to handle his entire defense and indicated that he would not cooperate with new counsel. Foreman also objected to this solution and filed this special action. It should be first stated that the State did not have standing to disqualify the Public Defender’s Office from participating in the defense of Rodriguez. We said in Knapp v. Hardy, 111 Ariz. 107, 112, 523 P.2d 1308 (1974): “That the county attorney has standing to object to a determination of indigency there can be no doubt, but once that indigency is determined the county attorney has no standing to object as to who will or will not represent the defendant or be associated as counsel. Not only does this strike at the very heart of the adversary system, but as we have previously stated: ‘ * * * for the prosecution to participate in the selection or rejection of its opposing counsel is unseemly if for no other reason than the distasteful impression which could be conveyed.’ State v. Madrid, 105 Ariz. 534, 535, 468 P.2d 561, 562 (1970).” No ethical duty was owed to the prosecution by either Foreman or the Public Defender’s Office. See State v. Garaygordobil, 89 Ariz. 161, 164, 359 P.2d 753 (1961). If the State believed an ethical violation was occurring, it should have followed the guidelines of the Code of Professional Responsibility: “A lawyer possessing unprivileged knowledge of a violation of DR 1-102 should report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.” Rule 29(a), DR 1-103(A), Rules of the Supreme Court, 17A A.R.S. Foreman, however, orally joined in the State’s motion to disqualify the Public Defender’s Office from any representation of Rodriguez, thus solving any standing problem. Defense counsel may move the court to withdraw if he believes his continued representation of a defendant will or is likely to result in a violation of a Disciplinary Rule. Rule 29(a), DR 2-110(B)(2), (CX2), Rules of the Supreme Court, 17A A.R.S. He must reveal any potential conflicts of interest to the defendant even though the conflict is not one which is likely to result in a violation of a Disciplinary Rule. See Rule 29(a), DR 5-101(A), DR 5-105, Rules of the Supreme Court, 17A A.R.S.; Standard 4-3.5, ABA Standards for Criminal Justice. If counsel believes an actual conflict exists, he must also promptly reveal it to the court. State v. Davis, 110 Ariz. 29, 31, 514 P.2d 1025 (1973). Foreman’s position is that he was faced with an incurable conflict of interest which compels him to withdraw. He urges that this conflict arose from the fact that he must zealously represent Rodriguez, but that in so doing might incriminate Silva, a former client of the Public Defender’s Office. An attorney owes a defendant representation which is both loyal and zealous. Rule 29(a), DR 5-101(A), DR 5-105, DR 7-101, Rules of the Supreme Court, 17A A.R.S.; Standards 4-l.l(b), 4-1.6 and 4-4.1, ABA Standards for Criminal Justice. This loyalty is superior to the lawyer’s personal and other professional interests. It rises above the interests of third persons, including other clients, both past and present. EC 5-1, Code of Professional Responsibility. Zealous representation requires that an attorney do everything legally and ethically possible to gain an acquittal for a defendant. Rule 29(a), DR 7-101, Rules of the Supreme Court, 17A A.R.S.; see Standard 4-4.1, ABA Standards for Criminal Justice. Here, Foreman owed both loyal and zealous representation to Rodriguez. So, if guilt could be shifted to someone other than Rodriguez, Foreman was under an ethical and moral obligation to do so. Yet, it would be unethical to shift Rodriguez’s guilt to Silva while Silva was represented by the Public Defender’s Office, because the Public Defender’s Office also had a duty of loyalty to Silva. Rule 29(a), DR 5-105(B), Rules of the Supreme Court, 17A A.R.S.; EC 5-14, Code of Professional Responsibility; see ABA Informal Opinion 1418 (1978); cf. State v. Davis, supra (requiring a court-appointed counsel to represent a defendant and a codefendant after attempting to withdraw on ground of conflict of interest denied the defendant effective assistance of counsel). See Allen v. District Court in and for Tenth Jud. Dist., 184 Colo. 202, 519 P.2d 351 (1974) (where public defender’s office represents both defendant and prosecution witness, the office must be allowed to withdraw from representation of witness; no mention that office must also withdraw from defendant’s case). As stated, Silva is not charged with any of the crimes of which Rodriguez stands accused and there is no indication that Silva has any information about those crimes or that Silva gave any information concerning Rodriguez’s activities to his public defender attorney. Foreman, in his memorandum accompanying his petition filed in this Court, says that he did not receive confidential information from sources within the Public Defender’s Office. He also says that he scrupulously avoided examining Silva’s file. Since Foreman did not obtain any confidential information about Silva’s defense, his brief investigation of Silva on Rodriguez’s behalf did not violate DR 4-101 requiring the preservation of confidences and secrets of a past or present client. Any subsequent investigation of Silva by Foreman would violate DR 4-101 only if Foreman thereafter used confidential information received by the Public Defender’s Office as a result of its representation of Silva. Hence, the appointment of separate counsel cannot cure the claimed ethical dilemma. Substitute counsel would still be in Foreman’s position since, in investigating Silva, substituted counsel could neither interview Silva’s former public defender nor obtain access to Silva’s file. In this light, it is apparent that Foreman was not placed in an inextricable conflict between violating the duty of confidentiality and the duty of zealous representation. Other courts have also held under somewhat similar circumstances that a person in Rodriguez’s position was not denied effective assistance of counsel. The test is whether there was undivided loyalty. See United States v. Jeffers, 520 F.2d 1256, 1263-1264 (7th Cir. 1975); Olshen v. McMann, 378 F.2d 993 (2nd Cir. 1967); People v. Pineda, 106 Cal.Rptr. 743, 30 Cal.App.3d 860 (1973); Commonwealth v. Smith, 362 Mass. 782, 291 N.E.2d 607 (1973). In the case of People v. Pineda, supra, two men were arrested and charged with the robbery of a convenience store. Pineda was represented by Lucero, a public defender. The other, Warren, was appointed another attorney from the same public defender’s office. Warren related certain matters to his counsel, but they were not communicated to Lucero. The charges against Warren were later dropped. At Pineda’s trial, Lucero called Warren to the stand in an attempt to link him rather than Pineda to the robbery. Warren refused to testify, invoking his right against self-incrimination. Lucero moved for a mistrial and for the appointment of new counsel for Pineda, arguing that Warren’s refusal was also based on the attorney-client privilege, and, thus, he was unable to effectively examine Warren. This motion was denied and Pineda was convicted. On appeal, Pineda claimed his counsel, Lucero, had a conflict of interest that prevented the giving of effective assistance of counsel. In affirming, the court found no conflict, saying: “The mere fact that Warren was previously represented by the same public defender’s office at which Lucero worked does not, standing alone, give rise to an inference of any conflict of interest. On the contrary, in the absence of some affirmative showing that a particular deputy public defender has acquired confidential adverse information from a defendant from the files or other employees of the office, any claim of conflict of interest would be groundless.” People v. Pineda, 106 Cal.Rptr. at 746, 30 Cal. App.3d at 865. Hence, we do not believe Foreman was compelled to withdraw under Rule 29(a), DR 2-110(B)(2) and (C)(2), Rules of the Supreme Court. It has been suggested that DR 5-105(D) requires Foreman to withdraw from Rodriguez’s defense. Arizona’s version of that rule differs in wording from the ABA’s Code of Professional Responsibility. Rule 29(a), DR 5-105(D), Rules of the Supreme Court, provides: “If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.” This provision prevents an associate of a withdrawing counsel from accepting or continuing the employment. Foreman could not represent Silva after Foreman’s associate in the Public Defender’s Office withdrew. The provision does not have any relevancy to the question of whether Foreman must withdraw from the defense of Rodriguez because the Public Defender’s Office withdrew from the representation of Silva. Moreover, to require Foreman to withdraw because of Rule 29(a), DR 5-105(D), would not be consistent with our decision in State v. Belcher, 106 Ariz. 170, 472 P.2d 39 (1970). There, we reversed a conviction when the appellant’s counsel also represented a codefendant who was to be tried separately. The appellant wished to call this codefendant as a witness, but his counsel disagreed and attempted to withdraw. The withdrawal was denied and appellant was convicted without the codefendant being called on his behalf. Reversing, we said: “A lawyer may represent codefendants until a conflict arises or can reasonably be foreseen. At that point independent legal advice must be provided for one or the other” Id. at 171,472 P.2d 39. (Emphasis added.) Accord, State v. Kruchten, 101 Ariz. 186, 199, 417 P.2d 510 (1966); Watson v. District Court in and for Fourth Jud., Colo., 604 P.2d 1165, 1168 (1980). Even though the Disciplinary Rules do not require Foreman to move to withdraw, other considerations may allow a court to disqualify Foreman from representing Rodriguez. It is urged that any confidential knowledge known to Silva’s former counsel (public defender) is imputed to Foreman through the “vicarious disqualification” rule. The underpinnings of this rule are found in the duty not to disclose a former client’s confidences and secrets, the duty of zealous and loyal representation, the ABA’s version of DR 5-105(D), and the general warning against the appearance of impropriety. In applying this rule, the inquiry is directed to whether the representation of the present client is “substantially related” to the representation of the former client. If it is, confidences and secrets known by the former client’s lawyer are imputed to any associate and that associate is disqualified vicariously. Silver Chrysler Plymouth, Inc. v. Chrysler Mot. Corp., 518 F.2d 751 (2nd Cir. 1975); American Can Company v. Citrus Feed Co., 436 F.2d 1125, 1128-29 (5th Cir. 1971). See State v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (1972); Bicas v. Superior Court in and for Pima County, 116 Ariz. 69, 567 P.2d 1198 (App.1977). Note, “Unchanging Rules in Changing Times: The Canon of Ethics and Intra-Firm Conflicts of Interest”, 73 Yale L.J. 1058, 1060 (1964). This rule attempts to avoid situations: “(1) where an attorney’s conflict of interests in violation of Canons 5 and 9 of the Code of Professional Responsibility undermines the court’s confidence in the vigor of the attorney’s representation of his client, * * * or more commonly (2) where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation, for example, in violation of Canons 4 and 9, thus giving his present client an unfair advantage [over the former client] * * Bd. of Ed. of N. Y. City v. Nyquist, 590 F.2d 1241, 1246 (2nd Cir. 1979). (Footnotes omitted.) At this point we reach the issue of the appearance of impropriety which we think is determinative of this case. Under the view imputing knowledge of one attorney to others, attorneys and partnerships are generally disqualified by reason of disqualification of an attorney associated with them either on the basis of representation of an adverse interest or the possible disclosure of confidential information. The Arizona Court of Appeals has held that an attorney who as a partner, associate or employee may have been involved in the interchange of ideas and problems presented in the law firm carries the taint of disqualification to another law firm representing an adverse party, even though he did not personally handle the affairs of the other party and did not possess any of their confidential information. Bicas v. Superior Court in and for Pima County, supra. The ABA, however, has criticized the concept of the appearance of impropriety in this language: “It is fortunate that ‘avoiding even the appearance of professional impropriety’ was not made an element of the disciplinary rule, for it is too vague a phrase to be useful * * *, and lawyers will differ as to what constitutes the appearance of evil * * * ]?or the same reasons, the concept is of limited assistance as an underlying policy consideration. If ‘appearance of professional impropriety’ had been included as an element in the disciplinary rule, it is likely that the determination of whether particular conduct violated the rule would have degenerated from the determination of the fact issues * * * into a determination on an instinctive, ad hoc or even ad hominem, basis * * ABA Formal Opinion 342, n. 17 (1975). See also, Bd. of Ed. of N. Y. City v. Nyquist, supra at 1246-1247. But we think the determination of a fact issue does not always satisfy the moral concept often inherent in close decisions. New York State’s highest court, in Cardinale v. Golinello, 43 N.Y.2d 288, 401 N.Y. S.2d 191, 195, 372 N.E.2d 26, 30 (1977), put it this way: “Accordingly, it is no answer that the lawyer did not in fact obtain any confidential information in connection with the first employment, or even that it was only other members of his firm who rendered the services to the client. Irrespective of any actual detriment, the first client is entitled to freedom from apprehension and to certainty that his interests will not be prejudiced in consequence of representation of the opposing litigant by the client’s former attorney. (Drinker, Legal Ethics, pp. 109, 115.) The standards of the profession exist for the protection and assurance of the clients and are demanding; an attorney must avoid not only the fact, but even the appearance, of representing conflicting interests (Rotante v. Lawrence Hosp., 46 A.D.2d 199, 361 N.Y.S.2d 372; Edelman v. Levy, 42 A.D.2d 758, 346 N.Y.S.2d 347).” We note also that in Schloetter v. Railoc of Indiana, Inc. 546 F.2d 706, 709 (7th Cir. 1976), the court observed: “The basic policies underlying any judicially-compelled withdrawal of counsel because of a potential conflict of interest can be found in Canons 4 and 9 of the ABA Code of Professional Responsibility. Canon 4 provides that ‘a Lawyer Should Preserve the Confidences and Secrets of a Client,’ and Canon 9 provides that ‘a Lawyer Should Avoid Even the Appearance of Professional Impropriety.’ Read together, the two canons indicate that an attorney may be required to withdraw from a case where there exists even an appearance of a conflict of interest.” (Footnote omitted.) In the instant case, the admonition of Canon 9, that a lawyer should avoid even the appearance of impropriety, is especially appropriate. Persons charged with crime must have ultimate faith in their attorney and such faith may be slow to develop when the attorney is court-appointed and not retained. Without faith in counsel, the criminal defendant may not freely communicate information necessary to an adequate defense. We recognize the fact that the Public Defender’s Office received no information about Rodriguez’s alleged crimes from Silva. But we assume that office has received from Silva confidential information and secrets about himself and his activities. If the Public Defender’s Office continues to represent Rodriguez and a confrontation with Silva developed at Rodriguez’s trial, it is possible, even probable, that it would be to Silva’s disadvantage. Such a result would make it appear that confidences and secrets of Silva were used to his disadvantage. This appearance could only hurt Silva’s, his friends’ and relatives’, and even the general public’s faith in the Public Defender’s Office. We therefore hold that because of the appearance of impropriety, Foreman and the Public Defender’s Office should have been disqualified. Our order heretofore entered directing the trial court to permit the Maricopa County Public Defender’s Office to withdraw from Rodriguez’s defense is confirmed. CAMERON and GORDON, JJ., concur. . “No attorney shall be permitted to withdraw after a case has been set for trial except upon motion accompanied by the name and address of another attorney, together with a signed statement by the substituting attorney that he is advised of the trial date and will be prepared for trial.” Rule 6.3(c), Rules of Criminal Procedure, 17 A.R.S. Foreman’s motion failed to meet this requirement since no substituting counsel was offered. . “If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner or associate, or any other lawyer affiliated with him or his firm may accept or continue such employment.” DR 5-105(D), Code of Professional Responsibility.

OPINION HOWARD, Judge. Can the trial court award spousal maintenance absent a finding or evidence that the spouse is unable to support herself through appropriate employment? That is the issue on appeal. The parties had been married approximately 9'/2 years at the time of the divorce and had no children. Appellee, Catherine McDermott, is 30 years of age, an experienced teacher, and has a bachelor’s degree in education and an Arizona teaching certificate. After their marriage in 1970 in Akron, Ohio, the wife completed her bachelor’s degree and worked as a teacher throughout the first six years of the marriage. She quit teaching prior to the divorce because she was “burned out” and was, at the time of trial, employed by the City of Tuscon as an administrative assistant earning approximately $13,800 per year. From 1971 through 1974, appellant completed his bachelor’s and master’s degrees. He then began working full-time and after almost two years, decided to get his doctorate degree. The parties moved to Tuscon in 1976 for this purpose. At the time of trial, appellant was completing his doctorate degree and making approximately $400 per month gross income. During the marriage the husband’s cash contribution to the marriage was $56,800 while the wife’s contribution was $64,100. The trial court found that: “Respondent [the wife] has sufficient earning ability to support herself and is not, based on that alone, entitled to any spousal maintenance.”' The trial court then found that during the marriage the parties had contemplated and agreed that when appellant finished his formal education, if appellee wanted to further her education, she would be able to do so. It also found that while there was not an express contract that she would financially support him through his educational endeavors and he through hers, it was contemplated by the parties that each would do so. At trial, appellee testified that she thought she might like to go to law school or get a master’s degree in public or business administration. . The trial court then held, as a matter of “equity”, that appellant should pay spousal maintenance to appellee in the sum of $500 monthly if she started school by September 1, 1980, for as long as she remained a full-time student in good standing, not to exceed 33 payments; this obligation to continue even if the husband died. What little personal property parties owned was divided according to their agreement made prior to trial. A.R.S. Sec. 25-319 determines the issue in this case: “A. In a proceeding for dissolution of marriage ..., the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance: ****** (2) Is unable to support himself or herself through appropriate employment ... or lacks earning ability in the labor market adequate to support himself or herself.” (Emphasis added) The evidence is clear and the trial court concedes in its findings that appellee did not bring herself within the statute. Its decision is based on “equity”. Whenever the rights of parties are clearly defined and established by statutory provisions, equity follows the law. Sult v. O’Brien, 15 Ariz.App. 384, 488 P.2d 1021 (1971). If appellee is capable of supporting herself through regular employment, she is not entitled to spousal maintenance. Neal v. Neal, 116 Ariz. 590, 570 P.2d 758 (1977). She argues, however, that what she is entitled to is an “equal opportunity”; that appellant had his chance and now she should have hers. This argument cannot stand in the face of the statute. Neither should the courts be the place where the frustrated expectations and fulfillment of the desires of the parties to a marriage are to be remedied. We note the case of In re Marriage of Angerman, 612 P.2d 1166 (Colo.App.1980). There the wife supported the husband during marriage as a keypunch operator while he pursued his bachelor’s degree and teaching certificate. It was the understanding of the parties that once the husband got his teaching certificate the roles would be reversed and the wife could return to college for graduate work in music looking toward a career in opera or as a teacher. The appellate court upheld the trial court’s award of spousal maintenance under a statute similar to ours, based upon a finding that being a keypunch operator was only intended by the parties to be a temporary pursuit dictated by the financial needs of the parties and because appropriate employment required that the wife obtain an advanced degree. Without commenting on whether Arizona appellate courts would have come to the same conclusion as the Colorado court did, we find the facts here and the facts in Angerman to be distinguishable. In Anger-man it would appear that the wife was a fine arts major and needed an advance degree in order to make a decent living. That is not the case here. Appellee has an Arizona teaching certificate and she has worked as a teacher in Ohio. She already has the means for “appropriate employment” and the award of spousal maintenance was contrary to law. The award of spousal maintenance is vacated. BIRDSALL, J., concurs.

HAYS, Justice. The appellee, John Calles Moya, Jr., hereinafter referred to as defendant, was convicted by a jury of first degree murder on July 5, 1979. On July 13, defense counsel moved for a new trial pursuant to 17 A.R.S. Rules of Criminal Procedure, rule 24.1 On September 24, the trial court denied the motion for new trial. After denying the motion, however, the trial court, assuming inherent power to modify the verdict, entered a judgment of acquittal on the charge of first degree murder and then entered a judgment of guilty to the crime of second degree murder. The state then brought a special action to this court, urging that the trial court exceeded its authority. In State ex rel. Hyder v. Superior Court (Moya), 124 Ariz. 560, 606 P.2d 411 (1980), we held that there was no authority which allowed the trial court, on its own motion, to enter a judgment of acquittal after a jury verdict. We concluded by stating, “The judgments of September 24, 1979, are hereby vacated and this case is remanded for proceedings consistent with this opinion.” Id. at 561, 606 P.2d at 412. Upon remand, defense counsel, renewed the motion for new trial and the trial court entered its order granting the motion. The state now appeals this order. We accept jurisdiction pursuant to 17A A.R.S. Supreme Court Rules, rule 47(e)(2). The question we must first decide is whether the trial court had jurisdiction to grant defendant’s renewed motion for new trial. The state vigorously asserts that once a motion for new trial has been denied, there is no authority which allows the trial court to rehear the motion and then grant it. Although our research reveals that there is authority which supports the trial court’s actions in this instance, see State v. Ornelas, 15 Ariz.App. 580, 490 P.2d 25 (1971), we need not address this particular contention. Rather, the effect of our decision in State ex rel. Hyder v. Superior Court (Moya), supra, was to return the case to the posture it was in on September 24, 1979, before the trial court ruled on defendant’s motion for new trial. Since the motion for new trial was originally made in accordance with the provisions of rule 24.- 1(b), Rules of Criminal Procedure, the trial court was acting well within its authority under rule 24.1(a) by granting the motion. Having determined that the trial court did have jurisdiction to grant the motion, we must next decide whether the court abused its discretion in ordering a new trial. As we stated in State v. Jones, 120 Ariz. 556, 559, 587 P.2d 742, 745 (1978): It is well settled that the decision to grant a new trial is within the sound discretion of the trial judge. State v. Villalobos, 114 Ariz. 392, 561 P.2d 313 (1977). It is equally well settled, however, that “[i]f an examination of the record discloses that no mistake of law or fact was made and that the evidence fully sustains the conviction, it is an abuse of discretion to grant a new trial.” In granting the motion for new trial, the trial judge expressed the opinion that, as a matter of law, there was insufficient evidence of premeditation to constitute a crime of murder in the first degree and that any finding of premeditation by the jury was necessarily based upon speculation and conjecture. We agree. It is the duty of this court, under the circumstances, to review all of the evidence and to determine whether the state proved beyond a reasonable doubt that the crime of murder was committed with premeditation. State v. Chase, 78 Ariz. 240, 242, 278 P.2d 423, 424 (1954). In order to show premeditation, the state must prove that the defendant acted with either the intention or the knowledge that he would kill another human being, and that such intention or knowledge preceded the killing by a length of time to permit reflection. A.R.S § 13-1101(1). While the necessary premeditation prior to the act of killing may be as instantaneous as successive thoughts of the mind and may be proved by circumstantial evidence, premeditation still must be shown. State v. Lacquey, 117 Ariz. 231, 234, 571 P.2d 1027, 1030 (1977). Our examination of the record for evidence of premeditation discloses the following. On December 7, 1978, the defendant directed the police to the apartment of Rueban Angel Nunez. Inside, the officers discovered the body of Nunez lying on a couch. The right side of his head had been crushed and a knife protruded from his chest. A profuse amount of blood was splattered on the wall next to the victim’s head. The body’s position on the couch suggested that he had been sleeping at the time of the killing. The weapon used to deliver the fatal blows to the head was apparently a tortilla skillet. Defendant testified that while in the apartment, Nunez allegedly threatened defendant’s father, brother, William Soltero, a labor union official, and the defendant. After making this threat, Nunez supposedly stated he was going to kill the defendant and proceeded to attack defendant with a knife. When defendant saw Nunez coming at him with the knife, defendant testified he attempted to run out the kitchen door but Nunez grabbed him by the hair and shoved him against a wall heater. Defendant, who had been drinking heavily during the preceding 24-hour period, had no recollection of any events after this initial attack. Although defendant did have burn marks on his back which were consistent with the heater grill pattern, there were no indications of any defensive knife wounds on either the defendant’s or victim’s hands or arms. In support of the state’s theory that the homicide was premeditated and unprovoked, the prosecution attempted to show that the circumstantial evidence was inconsistent with a fight having occurred. The crucial testimony in this regard was given by two expert witnesses for the state, Dr. Thomas Jarvis, a forensic pathologist, and Richard Watkins, a criminalist. When asked whether he had an opinion as to the position of the victim at the time the fatal blows were struck, Dr. Jarvis replied in the affirmative and stated, “Based upon all of the evidence that you’ve heard, its my opinion that the body very well might have been lying on its right side on the couch at the time that the injuries were inflicted.” THE COURT: Counsel, one moment. The doctor stated “it might have been” which is in his own speculation from the way the question was answered. Is that the strongest you could make your opinion, doctor, that it “might have been”? THE WITNESS: I think my answer was that it’s entirely consistent with: The body might have been in that position at the time the blows were struck. THE COURT: The objection will have to be sustained. The “might have been” is speculative. Anything might have been. THE WITNESS: Well, it could have been. That’s all I’m saying and the evidence supports. Finally, after some considerable effort, the prosecutor was able to elicit the following statement: [Dr. Jarvis]. In my opinion, the evidence supports the reasonable probability that the body was lying on its right side on that couch when it was injured. The prosecution also attempted to show that the blood spatter pattern on the wall next to the victim’s head indicated that Nunez had been struck while lying on the couch. Richard Watkins, the criminalist, testified on direct examination that the point of impact was in a generalized region near the armrest of the couch. On redirect, however, Watkins stated that the blood pattern appearing on the wall was not consistent with a spatter pattern adding, “... I would not be able to form a real definitive opinion on that.” Watkins was also unable to form an opinion as to whether the blood patterns on the wall were consistent with an object, such as the tortilla skillet, repeatedly striking a blood source. Based upon the foregoing testimony and our review of the evidence, we conclude that the state did not prove beyond a reasonable doubt that this homicide was committed with premeditation. The trial court did not abuse its discretion in ordering a new trial. Affirmed. STRUCKMEYER, C. J., HOLOHAN, V. C.J., and CAMERON and GORDON, JJ., concur. . Although this appeal was originally brought before the Court of Appeals, Division One, the chief judge ordered the case transferred to this court, expressing the opinion that the Court of Appeals lacked jurisdiction under A.R.S. § 12-120.21. Section (A)(1) of that statute provides that the Court of Appeals shall have “[a]ppellate jurisdiction in all actions and proceedings ..., except criminal actions involving crimes for which a sentence of death or life imprisonment has actually been imposed” (Emphasis added). In the present case, no sentence has been imposed; therefore, the Court of Appeals did have jurisdiction. We accept jurisdiction under Rule 47(e)(2), however, in order to clarify the effect of our decision in State ex rel. Hyder v. Superior Court, supra. . We must add that defendant may not be prosecuted a second time for first-degree murder. Although the issue was not raised in the briefs, we note that the Double Jeopardy Clause bars the state from trying defendant a second time once the trial court or reviewing court has found the evidence legally insufficient to support the guilty verdict. Hudson v. Louisiana, - U.S. -, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

OPINION YALE McFATE, Judge (Retired). Appellant-employer Valley Vendors, Inc. contests on appeal the ruling of the superior court upholding a decision of the appeals tribunal of the Arizona Department of Economic Security allowing unemployment benefits to claimant Michael Cunning following the termination of claimant’s employment with appellant. The question on appeal involves the propriety and effect vis-a-vis unemployment benefits of ordering an employee to submit to a polygraph examination upon penalty of dismissal. The facts are as follows: claimant was employed by appellant as a vending machine mechanic for approximately four years. An employment application form filled out and signed by claimant at his job interview stated, in effect, that claimant agreed to submit to a polygraph examination to verify the contents of the application. Claimant was hired and took the initial polygraph examination as he had agreed. He was subsequently asked to take three or four more polygraph examinations during his approximately four years of employment which he on each occasion agreed to take and did take. On May 5, 1978, claimant was again asked to take a polygraph examination. He refused and returned to his workbench, where his supervisor told him he either had to take the test or turn in his keys and “punch out” until he did. Claimant chose to turn in his keys and “punch out.” He filed for unemployment benefits a few days later. Appellant presented testimony at the hearing that in the spring of 1978 appellant suspected losses from the cash boxes of its machines. Consequently, appellant scheduled polygraph examinations for its employees with access to the cash boxes, one of whom was claimant. Further testimony indicated that some employees took the test, others refused and, like the claimant, were subsequently discharged. Claimant testified that he felt the request to take the examination was for the purpose of harassment. He testified that at the time the polygraph test was required, the police had apprehended an ex-employee who had stolen a complete set of master keys to the vending machines when he quit and was later arrested for taking money out of the machines. Claimant further testified that he and a co-worker had successfully unionized appellant’s workers a few months earlier, and since that time there had been several incidents of harassment against claimant. He also testified that he and a co-worker had filed a nine page complaint against appellant with the National Labor Relations Board a few days prior to the request. He thus considered the requested examination merely another incident of harassment. Appellant first contends that the department was in error in determining that claimant’s separation was a discharge. It argues that claimant “constructively quit”, citing department precedent cases which state that where a worker refuses to perform a task which is an integral part of his job, he can be deemed to have “constructively quit” rather than to have been discharged. We find this argument unpersuasive. Whether a separation from employment is a discharge or a quit is often a close question. A.C.R.R. R6-3-50135, designed to aid in this determination, states in part: Discharge or quit (V L 135). A. General (V L 135.05) 1. A worker’s separation from employment is either a quit or a discharge. 2. The claimant quits when he acts to end the employment and intends this result. 3. The separation is a discharge when it results from the employer’s intent and action. This includes layoff for lack of work, and requests by the employer for worker’s resignation. 4. In borderline cases the determination of whether a separation is a quit or discharge will be made on the basis of who was the moving party. A.C.R.R. R6-3-50190 states in part: Evidence (V L 190) ****** B. Burden of proof and presumption (V L 190.1) 2. The burden of proof rests upon the individual who makes a statement. c. When a claimant states that he did not leave voluntarily, and the employer maintains he did, the burden of proof shifts to the employer to establish that there has been a quit. Under the procedural rules in effect at the time, the department’s findings must be sustained unless they were arbitrary, capricious, or showed an abuse of discretion. Schade v. Arizona State Retirement System, 109 Ariz. 396, 510 P.2d 42 (1973). The department’s legal conclusions, however, are not binding on this court and we are free to make an independent determination on such questions. Eshelman v. Blubaum, 114 Ariz. 376, 560 P.2d 1283 (App. 1977). We need not reach the question of whether the issue of discharge or quit is one of law or fact because, in either case, we agree with the tribunal’s conclusion, stated in its Reasoning and Conclusions of Law as follows: However, in this case it appears that the employer was the moving party in informing the claimant that unless he agreed to take the polygraph test that he could no longer work there and ordered him to turn in his keys and other equipment and punch out. Therefore, the Tribunal finds that the case was a discharge and not a voluntary leaving. This conclusion is supported by the evidence. We find no error. Appellant states as his next assignment of error: D.E.S. [the Arizona Department of Economic Security] erred, in the alternative, in determining that the discharge of the Claimant was not for good cause. A.R.S. § 23-775 states in part: Disqualification from benefits An individual shall be disqualified for benefits: 2. For ... ten consecutive weeks ... after he has been discharged for wilful or negligent misconduct connected with the employment .... “Misconduct connected with the work” is defined in A.C.R.R. R6-3-5105 as: [A]ny act or omission by an employee which constitutes, a material or substantial breach of the employee’s duties or obligations pursuant to the employment or contract of employment or which adversely affects a material or substantial interest of the employer. Appellant contends that submission to periodic polygraph examinations by claimant was a condition of his employment, and within the meaning of A.C.R.R. R6-3-5105, claimant breached his contract by refusing to take the requested examination and hence was disqualified for benefits under A.R.S. § 23-775(2) for wilful or negligent misconduct connected with the employment. As noted before, the original polygraph examination was limited to verification of the application form and there was no condition in the application for employment or the contract of employment to take additional polygraph examinations. We find no substantial evidence of any subsequent modification of the employment contract in respect to polygraph examinations and claimant denies that a polygraph examination was ever a condition of his employment. We are thus not persuaded by this argument. In view of the foregoing, it is unnecessary to determine whether this court should adopt the holdings of several unemployment compensation agencies of other states to the effect that denial of benefits cannot be predicated on refusal to take a polygraph examination even though the employment contract provided for such examinations. See, for example, Comm.Dec.No. 5484-C, 2/13/71 (CCH, Unemp.Ins.Rep., Va. ¶ 1970.-35); App.Bd.Dec.No. 127,422, 12/14/65 (CCH, Unemp.Ins.Rep., N.Y. ¶ 1970.261, 1975.1681). The appellant argues that, due to the nature of the vending machine business, polygraph examinations are an integral part of an employee’s duties. He cites Esheiman v. Biubaum, supra, and Fichera v. State Personnel Board, 32 Cal.Rptr. 159,217 Cal.App.2d 613 (CaI.App.1963), as support for his position that employees can be dismissed for refusal to submit to a polygraph examination and that polygraph examinations are proper tools to be utilized in internal company investigations. However, both Eshelman and Fichera involved police officers. Neither case was concerned with rights of private citizens under a workmen’s unemployment insurance law. Eshelman held that the compulsory use of the polygraph during a sheriff’s investigation of the activities of a deputy in his office is appropriate in that it is “consistent with the maintenance of a sheriff’s department that is of the highest integrity and beyond suspicion.” The court noted that an officer may refuse to submit to a polygraph examination if the order is shown to be unreasonable. Eshelman cites Fichera, supra. In Fichera, the court pointed out that due to their peculiar and delicate position, there are special considerations which apply to public law enforcement officers which do not apply to private citizens, and that its decision related only to the former and as to them only when appropriate circumstances are present. Both the Eshelman and Fichera courts were concerned primarily with the right of the State to discharge the officers for refusing to take the test. In the instant case, it is not disputed that appellant had the right and ability to discharge the claimant. We are concerned only with the effect of that discharge on claimant’s ability to qualify for unemployment benefits. We conclude that the cases relied on by appellant are not persuasive on the issues presented here. Even if we were convinced that Eshelman is applicable to our case, nevertheless that decision specifically mandates certain procedural safeguards before an officer may be subjected to a polygraph examination, including a requirement that he be advised that the answers cannot be used against him in a criminal prosecution. Appellant contends this requirement was unnecessary in this case because as a result of a previous polygraph examination of claimant, claimant had admitted misusing certain funds and no criminal complaint had been filed against him as a result on that occasion. We do not consider this justification for dispensing with the specific requirement set forth in Eshelman, however, with respect to the subsequent requested examination. In the area of unemployment insurance, this is a case of first impression in Arizona. We have been referred to only two appellate court decisions which are closely analogous to the case presented to this court: Swope v. Florida Indus. Com’n Unemp. Comp. Bd. of Rev., 159 So.2d 653 (Fla.1963), and Charles Livingston & Sons, Inc. v. Constance et al., 185 N.E.2d 655 (Ohio App. 1961). In both instances the court upheld the granting of unemployment compensation to employees who had been discharged for refusal to take lie detector tests. In Swope, the employer, after discovering inventory shortages, notified its employees they would be required to submit to polygraph tests periodically. Two employees refused and were discharged. The court said: At the outset we observe the record does not support the conclusion reached by the appeals referee and adopted by the Board that petitioners voluntarily left their employ. After refusing to take the test petitioners reported for work the following day but were paid off and turned away. The determinative question is whether their refusal to submit to a lie detector test, in the circumstances presented, amounted to misconduct connected with their work. We hold it did not and that the challenged ruling was erroneous. Byron's could impose the rule and could discharge an employee who would not take the lie detector test. However, violation of an employer’s rule which leads to discharge will not disqualify one for benefits unless it appears that the action which prompted the discharge amounted to misconduct within the meaning of the Act. Here the petitioners’ discharge was not based on misconduct as defined. * * * * * * In the instant case petitioners had not been singled out and accused of any acts of dishonesty. As to them the test was a fishing expedition. It has been disclosed that a tenth of the population are unfit subjects for polygraph tests, and that such tests tend to inaccuracies in from something less than ten up to twenty-five per centum of cases. See People v. Davis, 343 Mich. 348, 72 N.W.2d 269. Thus an innocent employee taking such a test could be risking loss of job and reputation at odds similar to those in Russian roulette. Swope, supra, at 654. There are numerous administrative decisions from a number of states indicating that such refusal does not amount to misconduct justifying loss of unemployment benefits. These decisions are based on the inherent unreliability of the polygraph, as shown by its inadmissibility in court in both criminal and civil matters, the potentiality for abuse of the test, and the implicit possibility of an invasion of the employee’s privacy in matters of no concern to the employer. An Illinois administrative decision summarizes these rulings as follows: [I]t clearly appears that the injury to the legitimate rights of the employee resulting from the industrial use of life detector tests far outweighs the unsure benefit to the employer. Therefore, the refusal of an employee to submit to such a test is not in itself misconduct.. Illinois Board of Review Dec. No. 65-BRD— 111, (January 11, 1965), (CCH, Unemployment Insurance Reports, Illinois New Matters ¶ 1970.) See A.C.R.R. R6-351485(A)(1) & (2). From the foregoing, it is obvious that the great weight of judicial authority and administrative decision is against appellant’s position on this appeal. Appellant further alleges as error that the department’s appeal tribunal improperly placed the “burden of proof” upon it. However, A.C.R.R. R6-351190(B)(2)(b) states: When a discharge has been established, the burden of proof rests on the employer to show that it was for disqualifying reasons. This burden may be discharged by an admission by the claimant, or his failure or refusal to deny the charge when faced with it. (emphasis added) We find no merit to this argument. Appellant lastly contends that clear intent of the Arizona Employment Security Act, A.R.S. § 23-601 et seq., excludes the claimant from benefits. Appellant’s argument appears to be that unemployment insurance departments throughout the country have been “soft” on employees where polygraph examinations have been involved. Appellant urges that we here take up the slack. We, however, feel that the rule adopted by the unemployment insurance agencies throughout the land is both well-reasoned and fair. Polygraph examinations, as noted above, are both intrusive and unreliable. Several states have enacted statutes prohibiting such tests. We hold that the refusal of the employee-claimant to submit to the polygraph examination in this case did not constitute wilful or negligent misconduct connected with his employment and did not bar his right to receive unemployment insurance benefits. The decision of the Department of Economic Security is affirmed. CONTRERAS, P. J., and OGG, J., concur. . The application form, in pertinent part, reads: NOTICE READ THIS CAREFULLY BEFORE FILLING OUT THIS APPLICATION In order for your application to be properly evaluated, it is essential that all of the questions be answered completely and truthfully. Fill it out in detail. Truthful answers are not only the greatest indication of a person’s character, but will get you more consideration for this position than a good impression you may try to make with untruthful answers. The contents of any employment application must be verified before we hire. We have found through the years that there are two ways of effectively accomplishing this: 1. We could write, call and visit former employers, supervisors, friends and neighbors. This normally takes several weeks. 2. Or we could verify the contents of your employment application and work background utilizing polygraph (verification of truth test) which takes one hour. This test, we have found, is fair, impartial and objective. Not only is it a quick time-saver for both of us, but it also eliminates the possibility that some former associate might give you a biased recommendation for personal reasons. Therefore, after your application is evaluated here, you may be asked to voluntarily submit to a polygraph examination. In the privacy of the Polygraph labs, with an experienced and certified interviewer, an infor mal interview followed by a polygraph examination will be conducted to simply and quickly verify the contents of your employment application. The results of your interview and polygraph examination are confidential and can be released to no one else without your consent and signature on a release form. UNDER NO CIRCUMSTANCES WILL YOU BE ASKED ANY PERSONAL OR EMBARRASSING QUESTIONS Remember .. . You are not expected to be perfect. We are looking for truthful answers concerning your background, not perfect answers. Please sign below as an indication of your willingness to voluntarily submit to an informal interview followed by a polygraph examination to verify the contents of your employment application and work background. Dated_ Signature_ . See, e. g., App.Bd.Dec.No. 127,422, 12/14/65, (CCH, Unemployment Insurance Reports, N.Y. ¶ 1970.261, 1975.1681); Bd. of Rev.Dec.No. 65-BRD-111, 1/11/65 (CCH, Unemp.Ins.Rep.Ill. ¶ 1970); Bd. of Rev.Dec.No. B-99020 (Pa.B, MC-45.05-73, BSSUI), 12/28/67 (CCH, Unemp.Ins.Rep., Pa. ¶ 1970.151); App.Ref.Dec.No. A-12-212, 3/16/64 (CCH, Unemp.Ins.Rep., Nev. ¶ 1970); Bd. of Rev.Dec. 113-BR-63, 5/17/63 (CCH, Unemp.Ins.Rep., Okla. ¶ 1970); Comm.Dec.No. 5484-C, 2/13/71 (CCH, Unemp.Ins.Rep., Va. ¶ 1970.35); App.Ref.Dec.No. 20.934-AT-65, 6/23/65 (Tex.A. MC-190.15-57, BSSUI), aff'd by Comm.Dec.No. 482-CA-65, 7/13/65 (CCH, Unemp.Ins.Rep., Tex. ¶ 1970.-35). . For example, Alaska statutes, Title 23, Sec. 23.10.037; West’s Annotated California Codes, Labor § 432.2; Massachusetts General Laws, Annotated, Chap. 149, § 19B; Oregon Revised Statutes, Sec. 659.225; General Laws of Rhode Island, Sec. 28-6.1-1. The Alaska and Massachusetts statutes specifically exempt police officers from their purview.

OPINION WREN, Judge. This Special Action — Industrial Commission challenges a determination by the hearing officer that the claimant, Irieda A. Minney, had sustained a permanent impairment to her left thumb, in addition to her left lower extremity, and was therefore entitled to receive compensation on an unscheduled rather than a scheduled basis. We set aside the award. Claimant suffered a fractured patella of her left leg and strained ligaments of the left thumb in an industrial accident on March 18,1974. Her claim for benefits was accepted by the carrier on April 16, 1974. Four years later, on April 14, 1978, the carrier issued notices of claim status which concluded that claimant had sustained a permanent injury to the left leg and that she was to be compensated on a scheduled basis. Claimant filed a Request for Hearing on April 24, 1978, alleging that she had also received a permanent injury to her thumb and that, because of the multiple sites of her injuries, compensation should be on an unscheduled basis. Hearings were held on August 22 and September 27, 1978, following which the hearing officer issued his Findings and Award for compensation on a scheduled basis, determining that the residuals of the industrial injury were confined to the lower left extremity. A Request for Review followed and on December 8,1978, the modified findings complained of in this special action petition were entered, under which the hearing officer modified his previous award by finding that claimant also had a five percent permanent partial impairment of her left thumb and was therefore entitled to an unscheduled award. Petitioners assert the following issues: 1. That the Arizona Workmen’s Compensation Act no longer contains an objective articulated standard by which the existence or nonexistence of permanent impairment can be determined; 2. That the hearing officer failed to make findings that disposed of all the material issues; and, 3. That the testimony of Dr. Richard Morgan was not competent medical evidence to support the Modified Findings and Award. The main thrust of petitioner’s argument is that under two recent decisions by the Arizona Supreme Court; Adams v. Industrial Commission, 113 Ariz. 294, 552 P.2d 764 (1976), Smith v. Industrial Commission, 113 Ariz. 304, 552 P.2d 1198 (1976), the language of Rule 13(d) of the Rules of Procedure for Workmen’s Compensation Hearings before the Industrial Commission of Arizona (A.C.R.R.R4-13-113(D)) has been so diluted that there no longer exists a definable standard by which the existence or nonexistence of permanent impairment can medically be determined. Petitioners correctly point out that prior to Smith and Adams an employee had a permanent impairment only if it was ratable under the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides). Now, they claim, confusion exists as to whether a rating of permanent impairment must be premised upon some published or recognized criteria, or whether it can be predicated only upon the “personal belief” of the examining physician. They point to the fact that Dr. Morgan, and also the hearing officer in adopting the opinion of Dr. Morgan as to a five percent impairment rating of claimant’s thumb, made no reference to any rating guide, and that the findings of the hearing officer thereby failed to address a material issue as required by Garcia v. Industrial Commission, 26 Ariz.App. 313, 548 P.2d 26 (1976). In Adams v. Industrial Commission, a case involving a hearing loss, the Supreme Court held that Rule 13(d): ... must be so interpreted that the AMA Guides apply exclusively to the evaluation of permanent impairment to the extent that the AMA Guides cover the specific impairment and the percentage thereof. Beyond this, Rule 13(d) has no application. 113 Ariz. at 295, 296, 552 P.2d at 765, 766. In so holding the court approved the use of a Department of Labor Guide, described by medical testimony as being more accurate than the AMA Guides in rating the percentage of hearing loss. The court quoted from the AMA Guides that their purpose under Chapter VIII (ear, nose, throat and related structures) was “to assist physicians by providing criteria for use in evaluating permanent impairment ... and ... to determine the corresponding percentage of permanent impairment in the terms of the whole man.” 113 Ariz. at 295, 552 P.2d at 765. In Smith v. Industrial Commission, where subjective complaints of back pain could not be substantiated by the AMA Guides, the court decided that “petitioner must be given the opportunity to be rated by other criteria.” 113 Ariz. at 307, 552 P.2d at 1201. Although the issue raised here was apparently not before the court in Chavez v. Industrial Commission, 118 Ariz. 141, 575 P.2d 340 (App.1978), (review denied), an attack on a physician’s failure to rely on the AMA Guides, as being required by Rule 13(d) and Adams v. Industrial Commission, was turned aside by this court with the following language: Adams only requires that the AMA Guides be used to the extent that they cover the specific impairment and provide a percentage rating therefor. None of the physicians who testified felt that AMA Guides were useful in a situation such as this where there has been a re-entry into the same surgical level as was involved in petitioner’s 1966 industrial injury. We agree and decline to require medical practitioners to follow the guides where there is unanimity that they are inapplicable to the problem in question. 118 Ariz. at 144, 575 P.2d at 343. The opinion which affirmed an award of no disability noted that one of the medical experts who had testified stated that he would not rate the impairment at more than 15 percent. However, the opinion was silent as to the use of any other guide. Against this backdrop we analyze the medical record before us. Dr. Morgan related that he made no measurements pursuant to the AMA guidelines in regard to rating claimant’s left thumb. However, he testified that in determining the nature and extent of her impairment, he relied on x-rays taken on April 4, 1978, the general nature of the injury, the patient’s complaint of pain when she gripped her with her hand, and degenerative changes of the IP joint. He explained that his findings were not based on any loss of motion in the thumb, and that the AMA Guides relating to the thumb concerned themselves solely with the loss of motion. In his words the AMA Guides were: ... very non-specific as far as anything else. They grade it up five percent for muscle loss and what have you, and basically you end up with your experience with some of these when you get out of the loss of motion, so you try and stay with the AMA for loss of motion, and when you have muscle loss or sensory loss or degenerative arthritis developing, then you have to use your experience and sort of — you have to sort of get out of the AMA Guidelines. Dr. Maxwell MacCollum, who also examined claimant, reiterated this position. You use the [AMA] guide to help you perform rating. But you don’t evaluate according to the guide necessarily. The guide is an aid in determining what impairment exists, if any. Petitioners contend that if Rule 13(d) is still viable, then once it is established that the AMA Guides are not appropriate, it is incumbent upon a physician prior to determining and rating an impairment, to use other criteria. They argue that Dr. Morgan’s opinion as to the five percent disability does violence to Rule 13(d) when there is no standardized criteria in the record to substantiate it or by which to measure it; or, stated another way, Dr. Morgan could not, as argued by claimant, simply “rely on his training, experience, and sound clinical judgment.” Petitioners further argue that it was incumbent upon the hearing officer to make a determination in his Modified Findings and Award as to what standardized medical criteria was to be used in evaluating Dr. Morgan’s testimony as to the existence or nonexistence of permanent impairment in claimant’s thumb. Instead, they (petitioners) were left with only the hearing officer’s nebulous reference to the “honest, medical opinion” of Dr. Morgan. Without published guidelines against which to measure and determine any impairment, cross-examination and meaningful rebuttal became impossible. They conclude by asserting that if it is no longer necessary in workmen’s compensation cases to test or gauge the medical opinion of a physician against any definite standard, then due process is lacking to insure that decisions on permanent impairment are fairly and non-arbitrarily rendered, and that we should declare the provisions of the Arizona Workmen’s Compensation Act dealing with permanent disability benefits, A.R.S. § 23-1044(B)(C)(D)(E) and (F); A.R.S. §§ 23-1045 and 23-1047, vague and unconstitutional. The question thus becomes: must there, in every instance, be a “yardstick” against which the medical profession must relate its observations of impairment. Also, if impairment is found, must the claimant be denied compensation unless an acceptable medical guide, against which the impairment can be objectively measured and rated, is in existence? It is certainly arguable that this was the contemplation of the Industrial Commission in adopting Rule 13(d). In the record before us there was no reference whatsoever to the existence of an applicable, objective, measuring standard other than the AMA Guides. We find therefore, that under the narrow facts of this case, Dr. Morgan’s impairment rating falls within the parameters of Adams and Smith and justifies a rating not encompassed within the AMA Guides, and that there was no necessity for reference to some other recognized testing guide. Dr. Morgan explained the nonapplication of the AMA Guides to the situation here, and further explained that he had to fall back on his experience since the impairment was of a very minimal nature; one which could only he rated by medical expertise as to the degree of degenerative changes of the IP joint and its effect upon gripping ability. We therefore reject petitioners’ argument on vagueness and unconstitutionality. Petitioners further attack the credibility of Dr. Morgan’s testimony on permanent impairment of the left thumb since he concluded, in his report of April 4, 1978, that petitioner had no permanent impairment in the thumb area. Then, at the hearing on August 22, 1978, he testified that claimant had in fact sustained a five percent impairment to her thumb. In support of this testimony, claimant offered into evidence the April 19, 1978, report of Dr. Morgan which had not been previously filed with the Commission. In this letter report, addressed to claimant’s counsel, Dr. Morgan wrote: April 19, 1978 Chris T. Johnson 934 West McDowell Road Phoenix, Arizona 85007 Re: Irieda Minney Date of Injury: 3/18/74 Dear Mr. Johnson: Mrs. Minney was in the office on the 4th of April, 1978. The problem referrable to the left thumb and the left leg were discussed with the patient. She does have some degenerative changes of the left thumb and very minimal functional loss of this thumb. It was elected to give the patient primarily her disability referrable to' her left leg. This was so done. From your letter, it appears that you wish to have this patient have an unscheduled disability. Therefore, I feel this patient has a 5% functional loss of the left thumb. Computing this to the hand, it is a 2% which computes to a 2% functional loss of the upper extremity and a 2% loss of the upper extremity computes to the 1% loss of the whole person. Calculating a 20% functional loss of the lower extremity equals an 8% functional loss of the whole person. Therefore, this patient has a total disability equivalent to a 9% functional loss of the whole person. I hope this will further clarify my evaluation of this patient’s condition. Sincerely, /s/ Richard L. Morgan, M.D. On cross-examination as to the reason for this change of opinion, Dr. Morgan explained that when he examined claimant on April 4, 1978, he felt that she had such a minimal impairment that she could either be given a no permanent impairment rating or a minimal impairment rating; that it “could go both ways.” He related that: “I told her, .. . you have a very minimal disability in your thumb, hardly any; I mean, as little as we could give you.” He then rated her as having no impairment. The doctor thereafter received a letter from claimant’s counsel informing him that a scheduled award amounts to very little money in industrial cases, and that claimant should be rated with every minimal disability that she had. The doctor testified that he then picked five percent as the least amount he could give. This letter from claimant’s counsel to Dr. Morgan following the April 4, rating of no thumb disability was not submitted into evidence. However, in the Request for Review claimant’s counsel stated: . . . My letter to the doctor simply indicated that if she had a five percent disability to the thumb she is entitled to an award for unscheduled disability benefits. ... It is thus readily apparent from the documentary evidence that Dr. Morgan informed the claimant that he would structure his medical report in accordance with her choice as to whether she wanted a scheduled or unscheduled award, and that he changed his report of April 4, 1978, to permit an unscheduled award only after receiving the letter. This change of medical opinion as to claimant’s thumb impairment was rejected by the hearing officer in his original Findings and Award of October 5, 1978, with the following language: ... the law has not yet evolved to a point where a physician’s desire to obtain benefits for his patient is a legitimate criteria for him to use in evaluating permanent impairment attributable to an injury. We concur with this observation. Either there was a ratable disability in the thumb, albeit minimal, or there was not. To leave the ultimate determination of that crucial fact to the claimant rather than the examining physician, does violence to the entire concept of workmen’s compensation benefits. Such facts can furnish no legal or medical predicate for the modification to a five percent permanent disability rating and the unscheduled award. Whatever the basis for the initial report that the thumb had sustained no permanent disability, the subsequent reason for changing it to a five percent rating of permanent impairment can find no justification in Workmen’s Compensation Law. An award based thereon is not consonant with the standard of reasonableness expressed in Lopez v. Industrial Commission, 9 Ariz.App. 326, 451 P.2d 904 (1969). Nor do the “Revised Findings” of the hearing officer salvage it from the stigma of impeached evidence. . . . thus, rather than the evidence establishing that [Dr. Morgan] came up with an after-the-fact thumb rating solely for the purpose of obtaining benefits for the applicant, it establishes that originally his honest medical opinion was that there was a ratable thumb impairment which he did not report for the reason stated. We agree with petitioners that this “honest medical opinion” cannot fly in the face of the fact that Dr. Morgan, who had personally observed all medical facts upon which his conclusion was based, had previously, on the same facts, made a specific medical conclusion of no disability, and therefore no functional impairment. It might also be noteworthy at this point to state that the other examining physician, Dr. MacCollum, found no ratable impairment in claimant’s thumb; that she was evaluated at the Southwest Disability Evaluation Center on November 19, 1975, and the group report concluded that there was no objective evidence of any impairment to the thumb; that during the period from August 1975 to April 1978, Dr. Morgan did not treat the thumb in any manner, and even testified that claimant’s range of motion was normal and that she had not sustained any muscle or sensory loss. Award set aside. JACOBSON, P.J., and HAIRE, J., concur. . Rule 13(d): (d) If upon discharge from treatment the physician finds that the employee has sustained an impairment of function as the result of the injury, he shall so state in his report. Any rating of the percentage of functional impairment shall be in accordance with the standards for the evaluation of permanent impairment as published by the American Medical Association in “Guides to the Evaluation of Permanent Impairment.” It shall include a clinical report in sufficient detail to support the percentage ratings assigned. . The percentage of impairment is relatively unimportant for unscheduled injuries since it is only one of several factors to be considered in arriving at a permanent disability. A.R.S. § 23-1044(D). The amount of compensation is determined by the claimant’s reduction in eaming capacity. A.R.S. § 23-1044(C). In the scheduled injury area the percentage of impairment is all-important since the legislature has translated the percentage into a fixed rate of permanent disability. A.R.S. § 23-1044(B).

OPINION HOWARD, Judge. This is an appeal from the trial court’s order denying relief in a special action. The issue is whether appellants were provided with sufficient notice of an executive session of the school board held pursuant to A.R.S. Sec. 38-431.02(A)(2) of our Open Meeting Law. We shall consider the facts in the light most favorable to upholding the trial court. Appellants were certified probationary teachers who had been employed by the school district for three years. A total of eighteen teachers was employed by the district. The notice at issue here concerned an executive session which was to be held in conjunction with the regular meeting of the school board on April 9, 1980. The notice, posted in various places, stated that the renewal of contracts of certified personnel would be discussed at the executive session. Appellants saw the notice but did not believe it pertained to them. At the executive session the superintendent of the district recommended that appellants’ contracts not be renewed for the school year 1980-81. Although the members of the board knew prior to the executive session that renewal or non-renewal of teaching contracts would be discussed, they did not know that the superintendent was going to recommend that appellants’ contracts not be renewed. When the executive session ended, the school board reconvened for its regular session and in open session voted not to renew appellants’ contracts. Appellants contend they were not given reasonable notice of the executive session. Relying principally on the case of Rice v. Union County Regional High School Board of Education, 155 N.J.Super. 64, 382 A.2d 386 (1977), they argue that they were entitled to personal notice that the renewal of their contracts was going to be discussed at the executive session. We do not agree. Members of the school board may discuss or consider employment matters in a closed executive session. A.R.S. Sec. 38-431.03(A); Hokanson v. High School District No. Eight (8) of Pima County, 121 Ariz. 264, 589 P.2d 907 (App.1978). An employee may, however, demand that discussion concerning him or her occur at a public meeting, A.R.S. Sec. 38 — 431.03(AX1), and such employee is therefore entitled to reasonable notice of the fact that such discussions may take place so that he or she may opt for a public meeting. The notice here informed all teachers, including appellants who were certified teachers as defined in A.R.S. Sec. 15-251(AX1), that their contracts would be discussed and we believe that that constituted reasonable notice. Nothing prevented appellants from informing the board, prior to the executive session, that if their contracts were going to be discussed, they desired that the discussion be held in an open meeting. The Rice case is factually distinguishable. There, the school board went into executive session, telling those present that it was going to discuss personnel matters. Everyone knew that the topic for discussion was the reduction of personnel so that a budget which would be acceptable to the voters could be approved. At least one week prior to the executive session, the board members had a list of 17 teachers who were going to be dismissed. The court held that these members were entitled to personal notice. The differences between Rice and the instant case are evident. The board members in Rice knew well in advance the names of those teachers who were going to be dismissed. The same was not true here. More important, while the teachers in Rice knew that the continued employment of personnel was going to be discussed, they had no idea which employees would be the subject of discussion. That was not the case here where the group involved was not the broad, undefined group in Rice, but rather a very narrow one, i. e. all certified teachers who happened to be in the number of 18. The notice given was reasonable. Affirmed. BIRDSALL, J., and FAHRINGER, Superior Court Judge, concur. NOTE: Chief Judge JAMES D. HATHAWAY having recused himself in this matter, Judge PHILIP FAHRINGER was called to sit in his stead and participate in the determination of this decision.

JACOBSON, Judge of the Court of Appeals. The liability of Maricopa County for a suicide occurring in the Maricopa County Juvenile Home is presented in this appeal from a jury verdict and judgment in favor of the decedent’s mother. Plaintiff-appellee, BETTE MILLER COWART, instituted a wrongful death, action against defendant-appellant, MARICOPA COUNTY, a political subdivision, to recover damages for the death of her son, CHARLES DENNIS METTINGER, áge 15. (The deceased will hereinafter be referred to as “Dennis.”) The matter was tried to a jury which returned a verdict in the plaintiff’s favor in the sum of $35,-000.00, judgment being entered thereon. Defendant’s post-trial motions were denied and this appeal followed. It would add little to this opinion to recite in detail the traumatic history of the deceased, and the pros and cons of the type of mother the plaintiff was, although a good deal of the trial time was devoted to this type of testimony. Suffice it to say the deceased was a product of a broken home, the plaintiff having married five separate times prior to his death, and the deceased held rather decpseated resentments toward his mother which became manifest when he reached the age of 13. At this age he became rebellious, refused to apply himself to school work and refused to follow any authority. While Dennis and plaintiff lived in California, and at the suggestion of California school authorities, plaintiff sought counseling for Dennis, which proved ineffectual. In April of 1963, the parties moved to Phoenix, Arizona, where Dennis first came to the attention of police authorities on approximately May 1, 1963. On this date plaintiff called the Phoenix Police Department and reported that Dennis would not obey her orders and threatened her with a hammer. Plaintiff on this occasion requested that Dennis be taken to the County Detention Home. This request was complied with and he remained at the Home for approximately two days. Dennis was allowed to return to plaintiff’s home with the understanding he comply with certain rules pertaining to school and obeying his mother. On May 22, 1963, plaintiff again called the Phoenix City Police concerning Dennis’ refusal to obey rules, which call resulted in his again being placed in the Detention Plome. As a result of this detention a hearing was held in Maricopa County Juvenile Court which resulted on July 10, 1963, in Dennis being made a ward of the court and placed with an uncle. The deceased subsequently returned to live with his mother for approximately two or three days and then lived with the parents of an ex-husband of the plaintiff until he again ran away in September, 1963, while being prepared for registration in school. This last runaway resulted in Dennis’ being committed to the Maricopa County Juvenile Plome on September 12, 1963. Prior to this time, Dennis had showed no suicidal tendencies. A psychiatric evaluation of Dennis was made on August 19, 1963, which disclosed no suicidal tendencies. On September 18, 1963, Dennis was taken to the Maricopa County Hospital after he had informed personnel at the detention home that he had taken ten or eleven aspirin tablets. Treatment at the County Hospital consisted of giving him an antidote. Pie also informed detention home personnel at this time that he wished to die. Both prior to Dennis’ going to the County Hospital and subsequent to his return he had been kept with other juveniles at the detention home in large ward-type rooms. On September 25, 1963, Dennis was taken to the office of Dr. Lee S. Cohn for a further psychiatric consultation preparatory to obtaining his admission to a California psychiatric treatment center. While at Dr. Cohn’s office he bolted and was not returned to the detention home until the following morning. While Dr. Cohn was unable to complete his examination of Dennis, he did conclude that he needed special psychiatric treatment. He did not consider that Dennis had immediate suicidal potentials but rather was of the opinion that Dennis’ actions were directed outward toward others, rather than inward toward himself. However, he did concede at trial that in his opinion, Dennis did possess greater suicidal tendencies than a normal person. There is no evidence this latter conclusion was ever conveyed to personnel at the Detention Plome. After running away from the doctor’s office, Dennis was again returned to the normal routine of the Detention Plome. On that same day he again ran away from the Detention Home but was apprehended about twenty minutes later. On the following day, September 27, 1963, Dennis again made an attempt to escape from the home. Following this third escape attempt, a staff conference was called to determine what measures were to be taken concerning Dennis’ conduct. Because of his repeated statements that he intended to kill his mother and his repeated escapes, the decision was made to confine Dennis. This confinement was in no manner precipitated by Dennis’ prior alleged suicide attempt. Confinement in this case consisted of placing Dennis in a six-foot by eight-foot room constructed of reinforced concrete, having one steel door with a small peep slot and one window which was covered by a steel plate except for one or two inches at the top. Furnishings in the room consisted of a double bunk bed, a toilet and washbasin. Light to the room was furnished by a recessed single bulb which was covered by a metal frame. On September 29, 1963, after being confined for approximately two days, Dennis hung himself by a bedsheet wrapped around his neck and tied to the metal frame cover of the recessed light. Strangulation occurred by Dennis merely collapsing his knees and causing the bedsheet to become taut. All supervisory personnel of the home testified that the boys placed in confinement were checked on fifteen-minute intervals and that on the night of the suicide Dennis was so checked. On the other hand, a boy who was in a confinement room next to Dennis testified that Dennis had not been checked for over three hours. The matter was submitted to the jury on two basic issues: (1) the negligence of the County in maintaining and constructing the detention facility; and (2) the failure of personnel of the detention home to adequately supervise the deceased, thus allowing him to take his own life. The defendant raises several issues on appeal including the argument that the Maricopa County Detention Home is under the supervision of the Superior Court, and since the judges of the Superior Court are “state officers,” the County would not be liable for the acts of state personnel. However, we need not decide this issue in reaching a determination in this matter, since a more basic obstacle confronts the plaintiff in this case and requires a reversal. This obstacle can best be expressed by answering the question “what is the liability for suicide occurring in a juvenile detention home ?” Of course, before liability attaches there must be a breach of duty owed. Hersey v. Salt River Valley Water Users’ Assn., 10 Ariz. App. 321, 458 P.2d 525 (1969). In those cases in which a specific duty of care is absent, that is cases involving a wrongful act by the defendant and a subsequent suicide by the injured party, the almost universal rule is that the suicide by the injured party is a superseding cause which is neither foreseeable nor a normal incident of the risk created and therefore relieves the original actor from liability for the death resulting from the suicide. Tucson Rapid Transit Co. v. Tocci, 3 Ariz.App. 330, 414 P.2d 179 (1966); Annot., 11 A.L.R.2d 751, at 757 (1950). While plaintiff tacitly agrees with this general principle, she argues that a different rule is applied in “institutional” suicide cases where a specific duty of care to avoid suicide is imposed. This rule has been applied in both general and mental hospital cases and in cases dealing with mental institutions of various kinds. However, neither counsel has cited, nor has the court on its own research been able to find, a case where a specific duty of care has been imposed upon a juvenile detention home. This does not mean that such a specific duty of care should not be imposed. A reading of many “institutional” cases leads us to the conclusion that a juvenile detention home must, in the care of the juveniles placed in its custody, exercise such reasonable care and attention for their safety as their mental and physical condition, if known, may require. See Wood v. Samaritan Institution, 26 Cal.2d 847, 161 P.2d 556 (1945) and cases cited therein. This does not, however, mean that plaintiff is relieved from proving that the defendant failed to conform to the standard required. See Restatement (Second) of Torts § 281 (1965). Since the duty in this case is imposed because of the type of institution involved, the standard required for the protection of juveniles placed in its custody is that the institution exercises the skill and knowledge normally possessed by like institutions in similar communities handling juveniles. See Boyce v. Brown, 51 Ariz. 416, 77 P.2d 455 (1938); Stallcup v. Cos carart, 79 Ariz. 42, 282 P.2d 791 (1955); Reliable Electric Co. v. Clinton Campbell Contractor, Inc., 10 Ariz.App. 371, 459 P.2d 98 (1969). Just as a general hospital would have a different standard of care for its patients with mental disorders than a hospital specializing in mental disorders, (see Mesedahl v. St. Luke’s Hospital Ass’n of Duluth, 194 Minn. 198, 259 N.W. 819 (1935)), a home for wayward juveniles would have a different standard of care than that imposed upon a general hospital which might have patients with mental disorders. Plaintiff’s case was based upon two theories, that is, negligent construction of a physical plant and lack of supervision. It is essential to plaintiff’s case that the evidence establish the standard of care both as to construction and supervision in order to justify submission of the case to jury under instructions allowing recovery on either of these theories. A reading of the transcript shows a complete absence of any testimony establishing a standard of care as to the supervision required of juveniles such as are detained in the Maricopa County Juvenile Home. We do not believe that this is a matter of such general knowledge in the community as to negate the necessity of testimony on the subject. The general education and background of the personnel, the number of employees as compared to the number of inmates, the type of supervision — that is, security supervision or honor supervision — the number of personnel having specialized education in social rehabilitation, psychology and social sciences, the activities of the inmates, the number of night personnel as compared to daytime personnel, the routine of personnel in checking inmates, the lack of or presence of supervisory personnel, and the type of facilities where supervision can be- conducted, — these and other factors would all go to establishing the standard of care and defendant’s violation of that standard. A listing of these elements suffices to show that this type of knowledge is not general to the community. We therefore hold that the plaintiff, having failed to establish a standard of care required of the defendant in its supervision of juveniles, may not hold the defendant liable for an alleged failure of, or negligence in, such supervision of the deceased. As to plaintiff’s theory of negligent construction or maintenance, a different problem is presented. The following took place on plaintiff’s cross-examination of one of defendant’s expert witnesses: “Q I wish to tell you, sir, that the evidence shows that the room portrayed there is only about double the width of the bed on the wall, and that this boy was placed in there on about two days before he hanged himself from the crossbars above the — in the cell’s roof, and that the door was locked, kept locked. Now, does your training and experience, sir, has that dealt with the proper containment of detention or housing of young boys say 15 years old such as Charles Dennis Mettinger? “MR. WESTOVER: We object, if the Court please. The standard here is not a matter of expert testimony. “THE COURT: Objection will be sustained. “Q BY MR. WARNER: Doctor, do you believe that that facility shown in the exhibits that you are looking at was proper housing for Dennis Mettinger? “MR. WESTOVER: This is the third time, if the Court please, counsel has asked the same question in different form. We make the same objection. “THE COURT: State your objection, I will rule. “Objection will be sustained. “Q BY MR. WARNER: Now, Doctor, in your business you have come into contact with various ways in which housing facilities might be constructed and designed for the housing of boys with emotional problems, have you not? “A Yes. “Q And you are familiar with what is conceived to be good for the housing of them and what is conceived to be bad and improper, are you not? “MR. WESTOVER: Same objection, if the Court please. “THE COURT: Objection will be overruled. He may state. “THE WITNESS: Yes. “Q BY MR. WARNER: Doctor, in your opinion is the housing portrayed in the exhibits before you good housing, adequate and suitable for the housing of boys with emotional disturbances such as Dennis Mettinger had? “MR. WESTOVER: Same objection, if the Court please, it is not a matter of expert testimony. “THE COURT: Objection will be sustained.” It is apparent that plaintiff was attempting to establish a standard of care of construction and design utilized in the housing of emotionally disturbed juveniles, and that defendant objected to such testimony on the grounds that such was not the proper subject of expert testimony and was sustained therein. While we do not agree with either defendant’s counsel or the court in its sustaining of the objection, we do hold that under such circumstances, the defendant waived proof of such a standard of care in construction. However, under the general theory of negligence, in order to show liability, the plaintiff must prove a causal connection between the alleged breach of duty and the resulting injury. Here again, the proof is nil that any breach of the detention home’s duty to provide a reasonably safe building, if in fact such a breach was shown, was the proximate cause of the resulting suicide of the deceased. There was absolutely no testimony that the structure produced or contributed to a morbid state of mind of the deceased precipitating his suicide. While the plaintiff argues that the construction of the confinement room hampered adequate supervision of the deceased, we have held that plaintiff may not rely on this supervision aspect of liability because of the failure of proof of a standard. Since our decision in this matter requires a reversal, we need not consider the other alleged errors raised by the defendant. For the foregoing reasons, the judgment of the trial court is reversed and this matter is remanded with directions to enter judgment for the defendant. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and McFARLAND, JJ., concur. Note: Justice JACK D. H. HAYS, having requested that he be relieved from consideration of this matter, Judge EINO M. JACOBSON, Court of Appeals, was called to sit in his stead and participate in the determination of this decision.

.STRUCKMEYER, Vice Chief Justice. This action in mandamus was brought by School District No. 26 of Yuma County, Arizona to compel the Board of Supervisors of Yuma County to- authorize, sell and issue bonds of the School District in the amount of $50,000.00. The court below entered a judgment denying the School District relief, and this appeal followed. On August 5, 1969, two elections were held in School District No. 26 seeking authority for the issuance of $50,000.00 of School Improvement Bonds of the District. The propositions were the same in both elections, the difference being that in one all the qualified electors of the District voted, whereas in the other only qualified electors who were real property taxpayers of the District were permitted to vote. In each election a majority affirmatively voted for the issuance of the bonds of the District. The school board duly canvassed the election results and, pursuant to Statute A.R.S. § 15-1304, certified the proceedings, requesting the Board of Supervisors of Yuma County to authorize, sell and issue the bonds. The Board of Supervisors, however, refused, and this petition in mandamus was brought. By the Constitution of Arizona, Article 7, § 13, A.R.S., questions upon bond issues must be submitted to the vote of real property taxpayers who must also be in all respects qualified electors of the State and of the political subdivision affected. Qualified electors of the school district are those persons who are registered electors of the State and residents of the school district for six months. Webb v. Dixon, 104 Ariz. 473, 455 P.2d 447. On June 16, 1969, the Supreme Court of the United States decided two cases, Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583, and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647. Both decisions held that voting limitations which permitted only property taxpayers to exercise the electoral franchise violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. In an effort to avoid any possible conflict between Article 7, § 13, the Statute A.R.S. § 15-1302(D), reiterating the constitutional provision, and the Fourteenth Amendment as construed in Kramer and Cipriano, the School District called a dual election. Because of the favorable result, that is, both propositions having passed affirmatively by a majority of voters, the School District adopted the position that if the Constitution of Arizona, Article 7, § 13 violated the Equal Protection Clause of the Fourteenth Amendment, then the election at which all qualified residents of the district were permitted to vote duly authorized the issuance of the School District improvement bonds. The court below was of the opinion that Article 7, § 13 and A.R.S. § 15-1302(D) violated the Fourteenth Amendment. While we have previously approved bond elections held pursuant to Article 7, § 13, see Morgan v. Board of Supervisors, 67 Ariz. 133, 192 P.2d 236, it is unnecessary to reach this question posed by the trial court ruling. The court below also held “that the election wherein all qualified persons were allowed to vote whether they were real property taxpayers or not was of no force or effect as there is no constitutional or statutory provision authorizing such an election.” The 29th Legislature, in the second regular session, by Chapter 55, Senate Bill 34, passed an Act relating to bond elections as an emergency measure, which Act was approved by the Governor on April 20, 1970 and has been effective from that date. The Act, insofar as it affects this case, provides that if a court of final jurisdiction holds a statute or state constitutional provision which restricts voting in an election to real property taxpayers is violative of the Federal Constitution, any other election which would have been valid under the court’s decision shall be deemed a valid election for the purpose of authorizing any bonds pursuant to Title 15, Chapter 13, Article 1, of the Arizona Revised Statutes. We think the language of Senate Bill 34 controls the decision before us. The Federal constitutional questions under the Fourteenth Amendment need not be reached in this litigation, for the Arizona enactment is plainly intended to be retrospective in its application. Where the legislative action does not interfere with vested rights, there may. be enacted retrospective statutes to validate, ratify or confirm any act which the Legislature might have authorized in the first instance. Palmcroft Development Company v. City of Phoenix, 46 Ariz. 200, 49 P.2d 626. Since the legislation is retrospective,' a decision on the constitutional question is unnecessary. Constitutional issues will not be determined unless squarely presented in a justiciable controversy, Arizona Corporation Commission v. Tucson Gas, Electric Light and Power Company, 67 Ariz. 12, 189 P.2d 907, or unless a decision is absolutely necessary in order to determine the merits of the suit. Hart v. Bayless Investment & Trading Company, 86 Ariz. 379, 346 P.2d 1101; County of Maricopa v. Anderson, 81 Ariz. 339, 306 P.2d 268. If the election at which only real property taxpayers were permitted to vote does not violate the Fourteenth Amendment to the Federal Constitution, then the election is legal and valid. But, if the election is void as unconstitutional under the Fourteenth Amendment, then the election at which all qualified electors of the School District voted is a legal election, having been retrospectively validated and ratified by the Arizona Legislature. The Yuma County Board of Supervisors cannot now refuse to issue the bonds. One or the other of the elections is valid, and it is immaterial which, for a lawful proceeding antedates the issuance of the bonds. Any bonds sold will be a valid, binding and legal obligation of the School District. The judgment of the Superior Court of Yuma County is reversed with directions that it enter a peremptory Writ of Mandamus commanding the Yuma County Board of Supervisors to authorize, sell and issue School District Improvement Bonds of School District No. 26 in the amount of $50,000.00 in the manner as provided by law. LOCKWOOD, C. J., and UDALL, McFARLAND, and HAYS, JJ., concur.

LOCKWOOD, Chief Justice: Appellant Jensen (defendant) was convicted below of second degree burglary (A.R.S. §§ 13-301, 13-302) and sentenced to a term of not less than seven nor more than ten years. He appeals on the grounds that (1) the evidence is insufficient to support a jury verdict of guilty; (2) the trial court improperly instructed on the probative value to be accorded circumstantial evidence; and (3) the in-court identification of the defendant was improper. Taking the facts most favorable to upholding the conviction, State v. Bearden, 99 Ariz. 1, 405 P.2d 885 (1965), they are as follows: The complaining witness, Mrs. Dorothy Clatterbuck, at about noon on August 16, 1968, returned to her Phoenix home after an absence of approximately two hours for a pair of gloves. She saw a light car, parked in an unusual position near her house, and took the license number. She entered the house and immediately sensed that someone had been there. Papers were disarranged and a door was out of place. The laundry room door was broken, and glass was scattered on the laundry room floor. The bedroom was “messed-up”, drawers were open, jewelry was scattered over the floor and dresser. The frame of the screen on the bedroom window was bent. Mrs. Clatterbuck testified that she could only find one missing item, her wedding ring and perhaps some small change. She told her companion to call the police and as Mrs. Clatterbuck stood by the laundry room door she saw the defendant run across her backyard. She remained still and “memorized his face.” She continued to observe him until he had crossed the yard. The only entrances to the yard, which was surrounded by a high fence, were through the house, and through a small gate next to the driveway. A few minutes later she saw the suspicious car drive away, although she could not say with certainty that the defendant was driving the car. The defendant was traced through the license number of the car and arrested a few days later. At trial, the registration of the car was introduced, and an employee of the Division of Motor Vehicles testified that on the day in question the car and license number were registered in the name of the defendant. The defendant did not take the stand in his own behalf. The defendant’s first assignment of error is that there was insufficient evidence to support a guilty verdict. We do not agree. The evidence shows that Mrs. Clatterbuck’s home was broken into, and that at least one item was missing. Mrs. Clatterbuck identified the defendant as the person who ran through her yard, which was fenced, and could only be entered through the house or through a gate next to the driveway. The defendant was traced through ownership of the suspicious automobile. This evidence, admittedly largely circumstantial, is sufficient to support the verdict. State v. Riley, 106 Ariz. 318, 475 P.2d 932 (October 28, 1970). We will not overturn a verdict unless there is a lack of substantial evidence to support it. There were no conflicts in the evidence. That evidence may be circumstantial does not make it insubstantial. State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (November 16, 1970). Defendant’s second contention is that the trial court improperly instructed the jury on the probative value of circumstantial evidence. The trial court instructed the jury: “A fact may be proved by either direct or circumstantial evidence. Direct evidence is the testimony of one who asserts actual knowledge of a fact, such as an eye witness; circumstantial evidence is proof of a set of facts and circumstances indicating the guilt or innocence of a defendant. The law makes no distinction between the weight to be given to either direct or circumstantial evidence-, it requires only that after weighing all the evidence, you be convinced of the guilt of the defendant beyond a reasonable doubt before he can be convicted.” (Emphasis added.) Defendant complains that the emphasized words in the above instruction were prejudicial error, citing State v. Reynolds, 104 Ariz. 149, 449 P.2d 614 (1969). However, we approved the above instruction in State v. Harvill, supra, overruling State v. Reynolds, stating: “It is the opinion of this court that the probative value of direct and circumstantial evidence are intrinsically similar.” The court so instructed the jury, making it clear that the state had to prove the defendant guilty beyond a reasonable doubt. There was no error. The defendant’s third contention is that the trial court erred in allowing Mrs. Clatterbuck to identify the defendant at trial because her in-court identification was tainted by an illegal lineup identification. The defendant was taken into custody three days after Mrs. Clatterbuck’s house was broken into. As he was taken to the police station, the arresting officer radioed in that the defendant was in custody and a lineup was arranged. This lineup took place one hour after the defendant was arrested. He requested that the Public Defender be present in his behalf. Although the Public Defender was called by telephone, he declined to come, because there was some question of the defendant’s indigency. The lineup proceeded without an attorney being present. (It will be noted that defendant was represented by an attorney at the preliminary hearing, who withdrew before arraignment in the trial court. At arraignment in the trial court, the judge appointed the Public Defender to represent defendant. Thereafter that officer on motion secured a hearing to determine whether the defendant was able to employ counsel, and the court, determining that he was, discharged the Public Defender and directed defendant to employ counsel. However, shortly thereafter this finding was reversed, and the Public Defender was again appointed.) Defendant’s counsel (Public Defender) moved to suppress any in-court identification of defendant by the complaining witness, Clatterbuck, on the ground that such identification would be based upon her lineup identification. A hearing was held in chambers just prior to trial on the motion to suppress. Both upon direct and cross-examination Clatterbuck testified positively that her identification of defendant was not based on a lineup identification, which she did make, but was based on the fact that she had observed defendant as he crossed her yard, and had “memorized” his face, so that she could recognize him. She testified as follows: “Q. Mrs. Clatterbuck, if you had never attended that lineup, would you be able to tell us who the person was at your home? “A. Yes.” * * * ‡ * “Q. You would be able to identify him ? “A. Yes, absolutely. “Q. Would you explain to the court very briefly why you’d think you’d be able to regardless of the lineup ? “A. As I was standing in my laundry room, which is very very small, and looking through the broken window, I heard this person coming, and I stood, and I have a very very narrow backyard, there’s a cliff behind it, and cliff all around me. It’s a mountain home. And I heard him coming, and I stood there very quietly and watched him move across the backyard and watched him all the way. I just looked at his face and I guess just memorized it. I know of no other way to explain it other than I just looked at him so I would recognize him if it was necessary.” ****** “Q. Whatever happened, you studied his face most of the time you were there [at the lineup] to make sure you were right ? “A. I studied all of them, but I studied the face at the time he ran across my yard.” The trial court properly excluded any testimony of the identification of the defendant at the lineup. He then determined that Mrs. Clatterbuck’s identification of the defendant was not tainted by the illegal lineup. “THE COURT: Getting back to the basis of the evidence before the court, the court finds that the complaining witness, Dorothy Clatterbuck, can make an identification of the defendant based on observation other than at the said lineup. Therefore, it is ordered that the complaining witness, Dorothy Clatterbuck, may testify regarding said identification.” While the lineup identification did not comply with United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) there was sufficiently clear and convincing evidence adduced at the pre-trial hearing to sustain the court’s finding. We do not approve or condone such lineup procedure. But under the circumstances in this case, we are convinced that this is not cause for reversal. Affirmed. STRUCKMEYER, V. C. J., and UDALL, McFARLAND and HAYS, JJ., concur.

UDALL, Justice. This case is before us on a petition for review by plaintiff Mission Insurance Company of a decision of the Court of Appeals. The trial court had granted plaintiff’s motion for summary judgment, finding that the deceased, Patricia Koenig, was not covered by uninsured motorist insurance at the time of her fatal automobile accident. On appeal, the Court of Appeals reversed. 11 Ariz.App. 400, 464 P.2d 987 (1970). We vacate the decision of the Court of Appeals and affirm the judgment of the trial court. Defendant, Mrs. Florence Koenig, is the mother of the deceased, Patricia Koenig. Early in October of 1966, Patricia telephoned to Dick Smith of the Haldiman Brothers Insurance Agency in Phoenix to apply for an automobile insurance policy. Mr. Smith explained to Patricia the various types of insurance coverage available, along with the cost of each. As Patricia indicated the particular types of coverage she wanted, agent Smith drew out a rough copy of an application. Mr. Smith recommended a policy with plaintiff Mission Insurance Company. Patricia stated that she did not want uninsured motorist coverage. The Haldiman agency then mailed a prepared application to Patricia, accompanied by a letter which instructed Patricia to read the application thoroughly. The application did not include uninsured motorist coverage. On October 10, 1966, Patricia signed the application, and in addition signed her name under a separate clause which specifically waived uninsured motorist coverage in compliance with A.R.S. § 20-259.01. The total premium for the various coverages ordered was $227, which Haldiman agreed to finance by taking six monthly payments of $39.28, totaling $235.-68. Haldiman Brothers mailed the completed application to plaintiff Mission Insurance Company, which issued a policy on October 14, 1966. However, the policy mistakenly included uninsured/ motorist coverage, at an additional cost of $12.00. Agent Smith read the policy, noted the erroneous addition, and sent a letter to the plaintiff insurance company requesting that the uninsured motorist coverage be deleted. On the same day he forwarded the policy to Patricia, but fearing that the error would merely confuse her he made no mention of the mistake. Accompanying the policy was the following letter from Mr. Smith: “The policy that you authorized our office to write is enclosed. We also have received the first payment under the policy for $39.28. The financing arrangement allows six equal payments due on the first of the month which then pays the policy for the full one year. In your case this means that another payment of $39.28 is due now with four additional payments due on the first of December, January, February and March of $39.28. Then the policy is paid for until next October. Because it is now the 4th of November, would you please send the second payment by return mail.” Mission canceled the uninsured motorist coverage on November 16, 1966, but this was not until two days after Patricia was fatally injured in an automobile accident. Apparently the accident was the fault of the adverse driver, and Mrs. Koenig, defendant below, made a demand for arbitration under the terms of Patricia’s insurance policy, specifically the uninsured motorist provision mistakenly included. The plaintiff insurance company declined to arbitrate, and brought a declaratory judgment action in the Maricopa County Superior Court to have the court determine the respective rights of the parties in reference to the uninsured motorist provision of the policy. The court found that through inadvertence and mistake the uninsured motorist clause had been wrongly included in the policy, that Patricia’s waiver of such coverage was valid, and that Patricia had paid no consideration for the uninsured motorist coverage. Plaintiff’s motion for summary judgment was granted, the court holding that as a matter of law Mrs. Koenig was not entitled to recover under the uninsured motorist provision. We agree with the trial court’s findings. Although no Arizona case is dispositive of the issue before us, D.M.A.F.B. Federal Credit Union v. Employers Mutual Life Insurance Co. of Wis., 96 Ariz. 399, 396 P.2d 20 (1964), sets forth the principle which compels the conclusion we reach to day. In that case, Justice Lockwood wrote as follows: “In the absence of a statutory provision which will be read into each policy issued thereunder and cannot be contracted away by either party, * * * the principles to be applied in construing an insurance policy have been stated by this Court in a series of decisions and may be summarized as follows: The cardinal principle pertaining to the construction and interpretation of insurance contracts is that the intention of the parties should control.” 96 Ariz. at 402, 396 P.2d at 22. Patricia Koenig’s application for insurance contained her express intention to waive the uninsured motorist coverage. With respect to the company’s intention, we deem it of significance that the agent advised the company of the mistake as soon as he received the policy and that the company took prompt action to correct the error. Prior to her death, Patricia had made one payment of $39.28 to the Haldiman Agency. As explained above, this amount was based on a financed premium of $227, the total insurance premium without uninsured motorist coverage. Patricia was never charged, nor did she ever pay for the uninsured motorist provision which was mistakenly included in her policy. Therefore, the trial court correctly concluded that no consideration was ever exchanged for the uninsured motorist coverage. Mission Insurance Company promptly deleted the unintended provision when requested to do so by the Haldiman agency. A.R.S. § 20-259.01, providing for uninsured motorist coverage, states in pertinent part as follows: “This coverage shall at the time the policy is issued be called to the attention of the named insured who shall have a right to reject such coverage.” While the statute is silent as to how such rejection is to be expressed, we hold that a written waiver of such coverage in the insured’s application for insurance is sufficient to reject the uninsured motorist provision. This same conclusion was recently reached by appellate courts in Georgia and Florida. See American Liberty Ins. Co. v. Sanders, 120 Ga.App. 1, 169 S.E.2d 342 (1969); Lopez v. Midwest Mutual Ins. Co., 223 So.2d 550 (Fla.App.1969). Defendant cites the case of Utah Home Fire Insurance Co. v. McCarty, 266 Cal. App.2d 892, 72 Cal.Rptr. 460 (1968), as support for her position that the uninsured motorist provision was not validly waived. In Utah Home Fire, the insured signed a policy endorsement form which waived such coverage. However, the form specifically provided that the endorsement would be attached to the policy, that there was to be a “return premium” and that it would be countersigned by the company. None of these conditions ever occurred and when the insured’s policy was delivered to him it contained an uninsured motorist clause. The California court concluded that the waiver was ineffective, in light of the circumstances, to reject uninsured motorist coverage. In Utah Home Fire the signed waiver was ineffective because it did not comply with its own required conditions. The company failed to countersign and attach the waiver endorsement to the policy. There was no return premium made in consideration for the waiver. In the present case, the waiver in the application was clear and effective. Only through clerical error, which the company promptly endeavored to correct, was the uninsured motorist provision included in the policy. The judgment of the trial court is affirmed. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and McFARLAND, J., concur. NOTE: Justice JACK D. H. HAYS, having disqualified himself, did not participate in the determination of this appeal.

LOCKWOOD, Chief Justice: George and Carolyn Sorenson lived in Phoenix, Arizona with their three minor children. They wanted their children to attend school in Tempe Arizona’s School District #3 without having to pay tuition. To do so, they had to find a way to avoid the fiat of A.R.S. § 15-302 which provides that children who do not reside in the district may be admitted upon such terms as the governing board may prescribe. To accomplish their purpose, they relied upon A.R.S. § 15-449, subsec. B which provides that: “The residence of the person having legal custody of the pupil shall be considered the residence of the pupil * * From this provision they concluded that by having a Tempe resident appointed guardian of their children, they could ipso facto change the children’s residence to Tempe, thus making them eligible to attend school there, tuition-free. The parents therefore, procured the appointment of plaintiff, B. B. Dailey, as guardian of the children. Dailey’s petition to be appointed guardian, alleged that he had been informed by the children’s parents that the Tempe school system had “more to offer” than the system in which the children resided; that therefore it was to their best interests to be permitted to attend school in Tempe; and that if the guardianship were consummated, his residence in Tempe would become the children’s residence. The consent of the parents was attached to the petition, and Dailey was appointed guardian of the children on April 11, 1968. Though Dailey became their guardian, the appointment was in name only and the children continued to reside with, and to be under the control of, their parents. It was, however, the guardian’s position that although the parents retained physical custody of the children, the guardianship gave him “legal custody” of them, and that the Tempe school system was thereby required to accept the children without charging any tuition. The school district did not agree. In order to attain the desired end, the guardian brought this mandamus action against the school district. The district filed a third-party complaint against the parents asking judgment for tuition. The case was tried upon an agreed statement of facts which included the following items: One child attended a Tempe school 1965-1967, and another attended it 1966-1967. Both of them attended the school 1967 to April 29, 1968. In the school year 1968-1969 the third child would become of school age. Attendance of the two children during the above periods took place without the Tempe school district’s knowledge that the children resided in Phoenix. When it discovered this fact, it demanded tuition for the period from April 29 to the end of the school year, and the two months’ tuition was paid under protest. The district refused to allow any of the children to attend its school for the 1968-1969 school year unless the parents paid over $1,700 back tuition. It was admitted that the sole purpose of the guardianship was to get the children into the Tempe school system without paying any tuition. The trial court issued the writ requiring the district to accept the children tuition-free, and the school district appealed. The pertinent portions of §§ 15-449 and 15-304, A.R.S., the statutes here applicable, read as follows: “§ 15-449. Admission of pupils of other districts; tuition charges “A. The board of trustees of a common or high school shall admit pupils from another district or area as follows: “1. Upon the presentation of a certificate of educational convenience issued by the county school superintendent pursuant to § 15-304 or by agreement between districts, without payment of tuition, to exchange pupils for their convenience for reasons deemed sufficient by the governing boards. “2. To a high school without the presentation of such certificate, if the pupil is a resident of a common school district within the state which has neither a high school, nor a school in which high school subjects are taught. “B. The residence of the person having legal custody of the pupil shall be considered the residence of the pupil, ex cept as provided by the terms of subsection C of § 15-304. “C. The attendance of such pupil shall be deemed, for the purpose of determining average daily attendance, and for apportionment of state and county aid, including equalization aid, to be attendance in the district of residence, except as provided by the terms of subsection C of § 15-304. “D. Tuition shall be charged for all pupils attending school in a district other than that of their residence, as provided in subsections A and B, and shall be determined and paid in the following manner : * * ****** “§ 15-304. Certificate of educational convenience; Issuance; effect on attendance records “A. A pupil precluded by distance or lack of adequate transportation facilities from attending a common or high school in the district or county of his residence or who resides in unorganized territory may apply to the county school superintendent for a certificate of educational convenience. If it appears to the superintendent that it is not feasible for the pupil to attend the common or high school in the district or county of residence, he shall issue a certificate authorizing the pupil to attend a common or high school in an adjoining district or county, whether within or without the state. * * “B. In the event of an order issued by the superior court placing the custody or legal guardianship of a child in a rehabilitation or corrective institution, the county school superintendent of the county containing the school district of the pupil’s immediate residence shall issue a certificate of convenience for such child to attend a school in the district or adjoining the district containing such corrective institution. * * * Tuition may be charged in the district of actual attendance as for nonresident attendance. * * * >f “C. If a certificate of convenience is issued as provided by the terms of subsection B, or if a child’s residence is in doubt because such child has been placed in a foster home by action of the welfare department or the superior court or if the residence of an abandoned or orphaned child is in doubt because his parent or guardian was a transient, the certificate of convenience shall be issued by the county school superintendent. * * Tuition may be charged in the district of actual attendance as for nonresident attendance. * * The guardian contends that subsec. B of § 15-449, supra, is unambiguous. We cannot entirely agree. Sections 1 and 2 of Chapter 134, Laws of 1964, amended §§ 15-304 and 15-449, respectively. Obviously they relate directly to the one subject of “tuition for children attending a common or high school outside of their residence”, as expressed in the title. Therefore they must be read together to determine the relationship of one to the other. Section 15-304 provides a method for permitting pupils residing in one district to attend school in another district without financial loss to the latter. Section 15-449, subsec. B refers to “the person having legal custody of the pupil” as determining the residence of the pupil “except as provided by the terms of subsection C of § 15-304”. This reference is to determine the residence for tuition purposes, in the case of children placed in foster homes by the welfare department or by the superior court, or if the residence of an abandoned or orphaned child was in doubt because his parent or guardian was a transient. It is obvious from a reading of these statutes that the Legislature intended that the determination of which school a child is entitled to attend depends upon where the child “resides”. A.R.S. § 15-302. That the meaning of the word “reside” or “resident” may differ in the context in which it is used, is well illustrated in School District No. 16-R, etc. v. McCormmach, 238 Or. 51, 392 P.2d 1019: “The words 'resident’ or ‘residence’ are words having various meanings dependent on the context of the statute in which they occur. They must be construed in the light of the purpose of the statute in which they appear and the result sought to be accomplished by their use * * *. Being within the school district boundaries depends not so much on the technical requirements * * * but upon the physical presence of the child.” (Emphasis supplied.) The Legislature having provided an elaborate method for permitting school districts to allow transfers of children from one district to another, it is clear that “residence” as used in the various statutes regarding children in the district, refers to actual physical presence of the children. Hence the “legal custody” referred to in § 15-449, supra, presupposes that the children are living within the district, with legal sanction for their presence there. Any other interpretation would be an absurdity, and courts will avoid such an interpretation. City of Phoenix v. Superior Court, 101 Ariz. 265, 419 P.2d 49. Appellees’ contention that the general guardianship statute which provides: “The guardian may fix the residence of the ward at any place within the state” (A.R.S. § 14-806) governs, is without merit, since it does not restrict the meaning of “residence” as do the statutes pertaining to children residing in school districts. We therefore decline to agree with the guardian’s theory here, as it would lead to a conflict resulting in an absurdity. It is therefore clear that the children in this case are not entitled to attend school in District No. 3 in which the trial court, by its writ of mandamus, ordered them to be enrolled, without the assent of the District. It is equally clear that the “finding” of the trial court that the legal residence of the children, after the appointment of their guardian, was in District No. 3, was an erroneous conclusion of law. There remains the question of tuition. The trial court ordered judgment in favor of the district and against the parents for the amount (undetermined) of tuition properly charged for the time prior to the guardian’s appointment. The guardian argues that tuition is not chargeable against out-of-district students. He cites A.R.S. § 15-449, supra, which provides that claims for tuition shall be collected from the district of residence, by presentation of the bill by the district of attendance through the county school superintendent. The school district argues that it is authorized to collect from the parents, by authority of A.R.S. § 15-302, subsec. B, which provides: “The governing board may admit children who do not reside in the district but who reside within the state, upon such terms as it prescribes.” The statutes may be harmonized by a recognition that the District must admit children residing outside the district under the circumstances described in §§ 15-304 and 15-449, supra, but it may voluntarily accept pupils who live outside the district, but in the state, upon “terms” — i. e. conditions, and a condition might well be the payment of a proper fee for tuition. The difficulty is that from 1965 to April 1968, no terms were “prescribed”. The children attended the school without knowledge by the school that they lived outside its district. From April 1968 to June, 1968 terms were “prescribed” and consisted of payment of tuition for 1965-1968 inclusive. Although the parents probably did not voluntarily agree, they nevertheless paid, probably because they had their choice between paying, or removing the children from school in the middle of the school year. From the 1968-69 and 1969-70 school years, the school accepted the children because of the court writ, and there were no “prescribed” terms. Since the school was prevented from prescribing terms when the children were admitted by court order, and since otherwise it could, and undoubtedly would have charged tuition for 1968-70 as for the preceding years, it would seem only proper that judgment be entered against the parents and in favor of the district. The writ of mandamus issued against School District No. 3 in the instant case is quashed, and the case is remanded to the superior court for proceedings designed solely to determine the amount due from the third party defendants George and Carolyn Sorenson, to School District No. 3 and for entry of judgment for the proper amount. STRUCKMEYER, V. C. J„ and UDALL, McFARLAND and HAYS, JJ., concur.

PER CURIAM: This special action was brought under Article VI, § 5, of the Constitution of Arizona, A.R.S., to test the judgment of the Superior Court of the State of Arizona in and for the County of Maricopa in Cause No. C-225842, Barbara Caldwell v. Arizona Board of Regents, et al. In that action the Superior Court and the Honorable Howard V. Peterson, Judge thereof, reviewed the administrative decision of the Faculty Committee on Admissions of the Arizona State University College of Law which disapproved the application of Barbara Caldwell for admission. We do not find it necessary to reach the question of whether the Superior Court had jurisdiction to review the action of the Admissions Committee under Arizona’s Administrative Review Act, A.R.S. § 12-901, et seq. On review from an administrative determination the Superior Court can only decide whether the administrative action was illegal in that it was arbitrary, capricious or involved an abuse of discretion. Jaffe v. State Department of Health, 135 Conn. 339, 64 A.2d 330. The Superior Court found that the Admissions Committee did not act arbitrarily, capriciously or in abuse of discretion. It was therefore without jurisdiction to supplant the independent judgment of the Committee. The Superior Court is prohibited from enforcing the judgment in Cause No. C-225842. The peremptory writ shall issue forthwith. NOTE, Justice JESSE A. UDALL having disqualified himself; Judge FRANCIS J. DONOFRIO was called to sit in his stead and participate in the determination of this matter.

HAYS, Vice Chief Justice. Petitioner, Horton C. Weiss, a deputy county attorney of Pima County, was the prosecutor in the trial of State v. Atwood. As the result of conduct on the part of petitioner during the course of this trial the trial court found petitioner in contempt of court on five different occasions. This matter comes to us on a petition to review the decision of the Court of Appeals. The opinion of the Court of Appeals is vacated. 12 Ariz.App. 527, 472 P.2d 950. At the conclusion of the Atwood trial the court entered the following judgment and commitment: “On this 8th day of June, 1970, the Court having found the prosecutor, HORTON C. WEISS, in contempt of this Court for his conduct during the course of the trial of the above defendant, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, and the JUDGMENT and SENTENCE of the Court is that said HORTON C. WEISS pay a fine of $150.00 and this fine to apply to Count One, and that he be confined in the Pima County Jail, at Tucson, Arizona, One (1) day on Count Two, two (2) days on Count Three, four (4) days on Count Four and eight (8) days on Count Five; each to be consecutive to the prior Count or a total of Fifteen (15) days, and IT IS ORDERED that Mr. Weiss report to the Pima County Jail on June 9, 1970, at 8:00 a.m. IT IS FURTHER ORDERED that a certified copy of this JUDGMENT and COMMITMENT shall be sufficient warrant for the Sheriff of Pima County, Arizona to keep and imprison the said HORTON C. WEISS in accordance herewith. /s/ Robert O. Roylston” Judge Petitioner presents three issues: (1) was petitioner entitled to a jury- trial on each of the charges of contempt; (2) is the judgment of conviction fatally defective because it does not set forth on its face the facts upon which the convictions are based; and (3) is there sufficient evidence present to support the convictions for direct criminal contempt? We will first consider petitioner’s contention that he was entitled to a jury trial on each of the charges of contempt. The United States Supreme Court, in Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) held that although there exists a fundamental right to a jury trial in serious criminal cases no such right exists in petty offense cases. Accord,'. O’Neill v. Mangum, 103 Ariz. 484, 445 P.2d 843 (1968). In a companion case, Bloom v. State of Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), the Court held that a person is not entitled to a jury trial in criminal contempt cases which fall within the petty offense category hut is entitled to a jury trial in criminal contempt cases falling in the category of serious criminal contempts. In Cheff v. Schnackenberg, 384 U.S. 373, 379, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966) it was held that a prosecution for criminal contempt ending in a sentence of six months was a petty offense and hence the petitioner was not entitled to a jury trial. The Court in Cheff established the rule “that sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial or waiver thereof.” 86 S.Ct. at p. 1526. Thus, in federal courts the line between serious criminal contempts requiring a jury trial and petty criminal contempts not requiring a jury trial is drawn at six months. We are in agreement with this distinction; we hold that a sentence exceeding six months in jail may not be imposed for criminal contempt in the absence of a jury trial or a waiver thereof. This is in accord with the rationale of our holding in Burrage v. Superior Court, 105 Ariz. 53, 459 P.2d 313 (1969) that counsel must be provided for indigent misdemeanants where the maximum punishment exceeds $500 in fines or six months imprisonment or both. A related question is whether a reviewing court should look to the punishment authorized or the punishment actually imposed in determining whether an offense is petty or serious. In Duncan v. State of Louisiana, supra, it was held that “the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment.” 88 S.Ct. at page 1453. See also District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937). The court in Bloom v. State of Illinois, supra, interpreted Cheff to mean that “when the legislature has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense.” 88 S.Ct. at page 1487. See also: Duncan v. State of Louisiana, 391 U.S. 145, 162 fn. 35, 88 S.Ct. 1444, 1454, 20 L.Ed.2d 491 (1968). This court is in accord with this distinction. Arizona law does not provide a maximum punishment for convictions for criminal contempt. See A.R.S. § 12-864. It is necessary, therefore, to look to the punishment actually imposed to determine whether the offense for which petitioner was convicted should be treated as a petty offense or a serious offense. In the instant case, petitioner was sentenced to a total of fifteen days on four counts of contempt. The individual sentence for each of these four contempts was one day on count two, two days on count three, four days on count four, and eight days on count five. Since the sentence in each of the four counts was for less than six months the offenses are petty offenses and petitioner was not entitled to a jury trial on any of the counts. Petitioner’s next contention is that the judgment of contempt in the instant case is fatally defective because it fails to set forth on its face the facts upon which the convictions for criminal contempt are grounded. Petitioner relies upon In re Pugh, 30 Ariz. 129, 245 P. 273 (1926) and Golden v. Superior Court of Cochise County, 8 Ariz.App. 25, 442 P.2d 562 (1968) to support his position. This court in Pugh after noting that where contempt is committed in the immediate presence of the court that summary punishment may be inflicted, said: “[i]t is quite as universally the rule that, if the proceeding is summary, without any written charge, that the record must somewhere show the facts upon which the conviction is based, in order that it can be known that the court had jurisdiction.” 30 Ariz. at 132, 245 P. at p. 274. Subsequently, the Court of Appeals in Golden interpreted Pugh to mean that the judgment of contempt must show the facts upon which the conviction for contempt is based and that a judgment which fails to contain such facts cannot “be supported by matters extraneous to the judgment itself, such as the transcript of the trial proceedings.” 8 Ariz.App. at page 26, 442 P.2d at page 563. It is the opinion of this court that the scope and application of a rule should be governed by the reasons which support the existence of the rule itself. The reason for the existence of the rule announced in Pugh is to insure that reviewing courts have sufficient facts before them so that they may intelligently decide whether the lower court had jurisdiction to enter a finding of contempt and whether the acts charged come within the legal definition of contempt. See In re Pugh, 30 Ariz. at page 133, 245 P. 273. Although we are of the opinion that the better practice is to set forth the facts constituting contempt in the judgment itself, we do not believe a judgment which omits these facts is fatally defective if a transcript or other record of the proceedings is available from which these facts may be obtained. If such a record is not available, then a judgment which fails to set forth on its face the facts upon which the conviction of contempt was based is fatally defective. If such a record is available then the reason for the rule in Pugh is satisfied; therefore, the rule itself should be satisfied. In the instant case a transcript of the proceedings is available which contains the facts upon which the contempt convictions were based. The judgment of contempt in the instant case is not fatally defective. Petitioner’s final contention is that the evidence does not support four of the five convictions for direct criminal contempt. Petitioner concedes that the conduct upon which count one is based was contemptuous. In In re Pugh, supra, we said quoting from Otis v. Superior Court, 148 Cal. 129, 82 P. 853 (1905), that “[ejvery court is the exclusive judge of its own con-tempts, and its judgment is subject to review only upon the point of jurisdiction.” 30 Ariz. at pages 132-133, 245 P. at page 274. We also noted, citing Otis that the recital of the acts upon which the contempt is based must show that it was “committed in the presence of the court by the party charged, and the acts must come within the legal definition of a contempt.” 30 Ariz. at page 133, 245 P. at page 274. We have previously held that jurisdiction consists of three kinds, “(a) of the subject matter, (b) of the person, and (c) to render the particular judgment which was given.” Wall v. Superior Court, 53 Ariz. 344, 89 P.2d 624 (1939). The Supreme Court of Colorado, in Wall v. District Court of Tenth Judicial District, 146 Colo. 74, 360 P.2d 452 (1961) held that it would inquire into whether the lower court had jurisdiction of the parties and of the offense charged but would not act as a trier of the facts. It quoted the following language from Fort v. Co-Operative Farmers’ Exchange, 81 Colo. 431, 256 P. 319, 323 (1927), with which we agree: “ * * * no case in this court has ever held that, in reviewing contempt judgments, we act as trier of facts to ascertain the sufficiency of evidence to support a contempt charge. Where the trial court has jurisdiction, and regularly pursues its authority, and there is evidence of contempt, its decision on the facts is conclusive. * * * ” 360 P.2d at page 455. It is not the function of this court nor is this court equipped to act as a trier of fact. Contemptuous conduct is often a matter of voice inflection, facial expression or some other conduct which is difficult if not impossible for the record to reflect. It is for this reason that we said in Pugh, that “[ejvery court is the exclusive judge of its own contempts. * * * ” In Ong Hing v. Thurston, 101 Ariz. 92, 416 P.2d 416 (1966) we defined contempt as “[a]ny act which is calculated to hinder, obstruct or embarrass a court in the administration of justice, or which lessens the dignity or authority of a court. * * * ” 101 Ariz. at page 98, 416 P.2d at page 422. A careful review of the record in the instant case reveals that there is evidence to support the judge’s conclusion that direct contempt was committed on each of the four occasions in question. The decision of the Court of Appeals is vacated and the petition for special action relief is denied. STRUCKMEYER, C. J., and UDALL, LOCKWOOD, and CAMERON, JJ., concur. Supplemental Opinion HAYS, Vice Chief Justice. The United States Supreme Court in Mayberry v. Pennsylvania, 400 U.S.-, 91 S.Ct. 499, 27 L.Ed.2d 532 (January 20, 1971) said: “Instant treatment of contempt where lawyers are involved may greatly prejudice their clients but it may be the only wise course where others are involved. Moreover, we do not say that the more vicious the attack on the judge the less qualified he is to act. A judge cannot be driven out of a case. Where, however, he does not act the instant the contempt is committed, but waits until the end of the trial, on balance, it is generally wise where the marks of the unseemingly conduct have left personal stings to ask a fellow judge to take his place.” 91 S.Ct. at page 504. ****** “It is of course not every attack on a judge that disqualifies him from sitting. In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921, we ruled that a lawyer’s challenge, though ‘disruptive, recalcitrant, and disagreeable commentary,’ was still not ‘an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification.’ ” 91 S.Ct. at page 505. The Court in Mayberry also noted that the trial judge “could, with propriety, have instantly acted, holding petitioner in contempt, or excluding him from the courtroom, or otherwise insulating his vulgarity from the courtroom.” 91 S.Ct. at page 504. In the instant case, the trial judge acted immediately in holding petitioner in contempt deferring only the sentencing until the conclusion of the trial. Thus, under Mayberry the trial judge in the instant case was not required to “ask a fellow judge to take his place.” Furthermore, the facts of this case do not place it in that category of conduct which under Mayberry requires a “trial before a judge other than the one reviled by the contemnor.” 91 S.Ct. at page 505. Motion for rehearing denied. STRUCKMEYER, C. J., and UDALL, LOCKWOOD and CAMERON, JJ., concur.

McFarland, Justice. Arthur Calvin Wilson, hereinafter referred to as defendant, was convicted of the crime of robbery March 3, 1969 and sentenced to serve a term of not less than 10 nor more than 20 years in the Arizona State Prison. From his conviction and sentence he appeals. The defendant filed a timely notice of appeal from the judgment in propria persona, also an opening brief. The Attorney General filed a reply brief. In his opening brief the defendant called attention to the failure of th„ clerk to transmit a portion of the transcript of record, and contended that for this reason the case should be remanded for a new trial. The Attorney General in his reply brief recommended that an attorney be appointed to represent the defendant in his appeal. In the meantime it had delevoped that the reason a portion of the record had not been transcribed and transmitted was because the court reporter, Betty Ainsworth, had become ill during the trial and was unable to transcribe her notes. Thereupon the court entered the following order: “ORDERED: That the Plonorable Roger G. Strand shall direct Tia Van Zandt to transcribe the notes of the above mentioned case and fully complete the Reporters Transcript. “FURTHER ORDERED: that this portion of the transcript shall be submitted to the Judge of the Superior Court, Maricopa County Division 18, who shall direct counsel for the State and for the defendant to examine the same, for the purpose of suggesting any corrections, and thereupon the judge shall settle and approve the transcript and file the same with the Clerk of the Superior Court, and order it transmitted forthwith to the Clerk of the Supreme Court as a part of the record on appeal.” It then developed that neither the clerk nor the reporter were able to find the reporter’s notes to transcrioe. Judge Roger Strand thereafter ordered that the defendant prepare a statement of the evidence or proceedings from the best available means in accordance with Rule 363, Rules of Criminal Procedure, Vol. 17. It was prepared and served on the county attorney and submitted to the court. The county attorney filed his objections thereto and his statement of the evidence which were also objected to by the defendant, all of which were submitted to the Superior Court for settlement and approval. It was not fully settled for the reason that the court stated it was unable to “recollect” the particulars of the testimony of Elvin Besco and James W. Johnson. The counsel for defendant thereafter filed an opening brief, the state an answering brief and counsel for defendant a reply brief. On April 2, 1968 a Circle K Market located at “A” Street and Alma School Road ;n Mesa, Arizona, was allegedly robbed by the defendant armed with a revolver. There was some $97.28 cash taken in the robbery. The police were notified of the robbery and given a description of the person who had committed the robbery. The Circle K Market is located in an area surrounded largely by fields and brush. The officers arrived in the area within a few minutes after receiving notice of the robbery. The defendant was stopped in his car near the market on the Canal Road west of the Alma School. A search was made of his person resulting in the seizure of a hunting knife and a quantity of cash. The defendant was then asked if he would go with the officers to the market to see if the victim could identify him. The defendant agreed to go to the market, but according to his testimony, at the hearing on the motion to sup press the evidence, he stated that the identification was over his objection while he was handcuffed. Also that the officers refused to allow him to make a purchase and see if the manager could identify him in that manner, and rejected another proposal that the manager be required to come out and see if he could identify him in the crowd. The defendant in his brief filed propria persona presented the following questions: “QUESTIONS PRESENTED “1. Did the trial court err in refusing to suppress an inherently unfair and prejudicial identification gained in contravention to applicable U. S. Supreme Court decisions excluding same? “2. Did the trial court err in refusing to suppress property introduced as evidence, said property having been gained through illegal search and seizure contrary to applicable U. S. Supreme Court decisions? “3. Did the prosecution err to the prejudice of the accused wherein defense evidence within the jurisdiction of the prosecution was not preserved with the same diligence as prosecution’s evidence and was totally lost to the defense at Trial? “4. Did the trial court err in denying a mistrial after allowing the jurors to hear highly prejudicial testimony and to witness the prejudicial exhibition of a hunting knife, even though later refusing to allow the matter into trial? “5. Did the prosecution err in failing to furnish this Honorable Court and appellant with the Reporter’s Transcript of the complete testimony of the complaining witness recorded at Trial, (See: R.T., p. 53) to the derogation of a full and fair application of due process of law and equal protection of law as guaranteed by the United States Constitu- ' tion, Article XIV?” The same questions were presented by his. attorney in his brief. We shall discuss them in the order as presented. The counsel first contends that the search of the defendant’s automobile and the resulting seizure of the gun, the shells It contained, a box of shells, holster and jacket was in violation of the Fourth Amendment of the Constitution and their admission into evidence constituted reversible error. He cites State v. Madden, 105 Ariz. 383, 465 P.2d 363 as supporting this contention. In the-Madden case the search was after the automobile was moved off the highway and to a garage. We held in that case that the facts fell within those of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L. Ed.2d 777. The search of the car in the Preston case was not undertaken until the petitioner and his companions had been arrested and taken into custody and the car had been towed to the garage. The car likewise had been towed to the garage in the Madden case when the search was made. Following the Preston case, we held' that the search was too remote in time and place to be incident to the arrest. The facts are definite in the instant case that the car was searched on the highway where the defendant was stopped. It is true he had been taken to the store for identification and returned to the car. However, we do-not reach this question for the evidence shows that no objection was made at the trial on the basis that there had been an illegal search and seizure. The objection made to the introduction of the evidence which consisted of the gun and the jacket was as follows: “Your Honor, as to Exhibit 4, which is the gun, the State is trying to get into evidence, I would object to the admission of the gun. Certainly there is no foundation or connection that this was used in the alleged robbery. The only similarity is the fact that it had a round barrel. I think that is insufficient foundation or connection. “As to the Exhibit No. 5, that certainly has been no — not the fact that this was in Mr. Wilson’s possession. There has been again no connection. It is completely immaterial and irrelevant to this charge and would be prejudicial. “As to Exhibit 6, I would submit there has been insufficient foundation for the admission of Exhibit 6. “As to Exhibit 3, Exhibit 8 and Exhibit 7, object to these. These Exhibits would be admissible or inadmissible for the same grounds that I am objecting to Exhibit 4. I think 4 is inadmissible and certainly these would be inadmissible cause there has been no connection or foundation. “THE COURT: The objection to Exhibit 5 is sustained. “The objections to each of the other exhibits is overruled and Exhibits 3, 4, 6, 7 and 8 will be received in evidence.” The court in passing on this objection admitted all the exhibits in evidence with the exception of the knife. In State v. Kananen, 97 Ariz. 233, 399 P.2d 426, in which objection has been made to the introduction of evidence on the ground that it had been obtained through illegal search and seizure, we pointed out that the courts were divided on the question of whether the evidence would be excluded on the objection during the trial on the grounds that it was obtained through illegal search, or whether it must be made before the trial on a motion to suppress. In passing upon this question we held : “In the Quintana case, supra [State v. Quintana, 92 Ariz. 267, 376 P.2d 130], in which we quoted with approval a quotation from State v. Robbins, 37 Wash.2d 431, 224 P.2d 345, we stated: ‘With regard to appellant’s contention that the court erred in refusing to hear arguments on his objections to the admissibility of the evidence during the proceeding of the trial we cite State v. Robbins, 37 Wash.2d 431, 224 P.2d 345 (1950), where it was said at page 346: ‘ “Where, during the trial, the seized articles arc offered in evidence, and it does not appear from the state's testimony, or otherwise, that such articles were unlawfully seized, and objection is made to the introduction of such evidence, on the ground that it was unlawfully seized, and the defendant offers, by affidavit, or otherwise, to prove such unlawful seizure, the court should receive the articles in evidence, because it will not, at that stage of the proceedings, stop to investigate the disputed circumstances under which the articles were seized. When a defendant desires to suppress as evidence, the articles taken, he must, within a reasonable time before the case is called for trial, move for such suppression and thus give the court an opportunity to try out the disputed questions of fact.” ’ ‘The same ruling was made in State v. Lord, Mo., 286 S.W.2d 737 (1956); and in State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878 (1942).’ “It will be noted that the contention was in regard to the refusal of the court to hear arguments on the objection to admissibility of evidence in the proceedings of the trial. In State v. Robbins, supra, there was an objection made to the introduction of evidence on the ground that it was unlawfully seized, and defendant offered by affidavit or otherwise to prove such unlawful seizure. The court had just stated in the previous paragraph that: ‘Where, by the direct or proper cross-examination of the state’s witnesses, it is made to appear, or it is otherwise admitted, that the articles which are offered in evidence have been unlawfully seized, it is the duty of the trial court, upon objection, to refuse to receive them in evidence. There being no questions of fact under such circumstances, and nothing to require the court to stop in the midst of the trial to try a collateral fact, the court has only to rule on the admissibility of evidence upon admitted or conceded facts.’ The court specifically stated that if the evidence showed that the articles which were offered in evidence have been unlawfully seized it was the duty of the court, if it were shown by direct or proper cross-examination of the state’s witness, not to receive them in evidence. “We are of the opinion that it is a better practice for defendant to make a motion before trial to suppress evidence which was illegally obtained. However, if he fails to do so, he is not precluded from objecting to the evidence if it appears therefrom, either from direct or cross-examination, that the search and seizure was unreasonable. We therefore hold that the court erred in the admission of the evidence obtained by the search and seizure. “Some of the Federal courts hold that failure to make a motion to suppress evidence is a waiver, but they are based upon Rule 41(e) of Federal Rules of Criminal Procedure which provides that a motion ‘alleged to be the product of an unlawful search and seizure “shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.” ’ United States v. Watts, 2 Cir., 319 F.2d 659, 660.” Id. at 239-240, 399 P.2d at 430. This rule has been followed in other jurisdictions. In White v. State, 81 Okl.Cr. 399, 165 P.2d 151, the court held: “However, the objection to evidence obtained by an illegal search and seizure must be interposed at the first opportunity presented. Such objection should be made either at the beginning of the trial by a motion to suppress, or in the course of the examination as soon as it becomes apparent that the State will rely upon it. Otherwise, the defendant waives his right to be heard upon this question. Gragg v. State, 72 Okl.Cr. 189, 114 P.2d 491; Fields v. State, 31 Okl.Cr. 121, 236 P. 633; Brooks v. State, 32 Okl.Cr. 75, 240 P. 138.” See also Watson v. State, Okl.Cr., 382 P. 2d 449. The car in the instant case was in the same location as when it was stopped by the officers and was searched upon return of the defendant to the car. It may have been for this reason there was no objection made by counsel for defendant at the trial upon the ground of illegal search and seizure. The defendant not having made a motion to suppress before trial or objected to the evidence during the trial did not comply with holding of timeliness in State v. Kananan, supra. The Federal Courts, as pointed out in Kananan, supra, have excluded evidence under Federal Rule 41(e) unless the defendant did not have the opportunity to make a motion to suppress or was not aware of the grounds of the motion. Neither of the conditions exists in the instant case. The defendant was aware of the seizure of the goods, his attorney was aware of the seizure of the goods and did not make the motion to exclude the evidence upon this ground; and since none was made it is clear in accordance with the decisions that the defendant waived his right to object and cannot do so for the first time upon appeal. The next question presented by the defendant is that the court erred in denying a mistrial because of the offer in evidence of the hunting knife. The admission of the hunting knife was properly excluded. It was not used or exhibited during the robbery and had no connection with the case. The court properly instructed the jury that they were not to consider any evidence which had not been admitted in the case. The defendant cites the case of State v. Little, 87 Ariz. 295, 350 P.2d 756, 86 A. L.R.2d 1120, in which the court admitted in evidence a blackjack and a bicycle sprocket chain made into a blackjack which they alleged had been taken from the automobile on the evening of the narcotic sale. We held in that case that they should not have been admitted over the objection of the defendant. The presence of the blackjack in the defendant’s automobile was irrelevant to any proper issue. However, in Little, supra, we did not pass on whether the admission in evidence was reversible error: “Whether the admission of such evidence, though improper, alone constitutes reversible error need not here be determined, as the ruling of this Court on Assignments of Error two through five requires reversal of the judgment of conviction.” Id. at 309, 350 P.2d 756 at 765. Since the hunting knife in the instant case was not admitted in evidence and the court gave the proper instruction not to consider evidence not admitted the mere offer of the knife was not prejudicial error. The last question raised by defendant is that the court erred in denying the motion of the defendant to suppress the identification. The defendant contends that the identification did not comply with the rules set forth in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and companion cases, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. The rules of admissibility of evidence in our state were succinctly set forth by Justice Struckmeyer in State v. Dessureault, 104 Ariz. 380, 453 P.2d 951, cert. den. 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257: "First, where, as here the in-court identification is challenged at the trial level, meaningful review requires that the appellate court reach one of the following conclusions: if it can be determined from the record on clear and convincing evidence that the in-court identification was not tainted by the prior identification procedures or from evidence beyond a reasonable doubt that it was harmless, and there is otherwise no error, the conviction will be affirmed. If it can be determined from the record that the in-court identification was tainted and that it does not appear harmless beyond a reasonable doubt, the conviction will be reversed.” In the instant case there was a motion to suppress the evidence before the trial. There was a hearing before trial in which evidence was introduced both by the State and the defendant. At this hearing the defendant testified that: “A. The officer, arresting officer and the investigating detective, I believe his name was Rodriquez, I am not sure. Gomez, Gonzales, he is a Spanish descent officer. He is a detective sergeant in robbery detail. “Q. All right. How were you taken to the Circle K? “A. In a police car. I left my car parked there on 8th Street. “Q. Were you handcuffed? “A. Not until I got to the store, no. “Q. You say when you got to the store you were handcuffed? “A. Yes. When they got me out of the car, out in front of the police car, why, they put the handcuffs on me in front of the store, and then called the store manager out and showed him my wallet with the small denominal bills that I had in my wallet, and told me, this man seemed to have quite a bit of money, so— “Q. Now, were you handcuffed before you were identified? “A. Before I was identified, yes. “Q. Did you make any request of the officer when you arrived at the store? “A. Yes. I asked the officer if he would take me in and show me the man that was supposed to be robbed, and allow me to make a purchase from him, and let the man make the identification in that respect as another customer, not as a man in custody for an offense that had just been committed. And he said, we will do this our way. “Q. Were there any other people around ? “A. Yes, there were, oh, I would say 15, 20, maybe 30 people standing around in front of the store. “Q. Did you make any request as to identification ? “A. I did. When he refused my request to take me in to the store so the store manager — I asked him about to let me mingle in the crowd of people that was gathered in front of the store, and let the man come out and pick me out from the crowd, if I was the man that was supposed to have robbed him. And the same reply was given at that time. He said, we will still do this my way. “Q. Did you make any requests in regard to the handcuffs ? “A. No. No, I didn’t resist in any way. They put the handcuffs on me. I objected, yes, I told them I didn’t think that was quite fair to have me handcuffed, and singled out as an individual instead of just someone else. “Q. Now, you indicated something was shown to the alleged victim prior to identifying you. I think you said it was your wallet? “A. Yes. He had my open wallet. This little wallet that I have in my pocket here. It is a very flimsy little wallet, and the monies were in here in this clip, and it was all small denominations, like I say, about ninety some dollars in there, all ones and fives. And, I don’t know, two or three tens. I don’t know if there was a twenty there or not, but it was all small money that I had just collected that day. “Q. All right. Did you go into the store or did the storekeeper come out? “A. Oh, he came out on the sidewalk. “Q. How many police officers were there with you at this time ? “A. I really don’t know. There was a drove of them. Several. It was two or three police cars, and two or three plain-clothes men, and several uniformed police. “Q. Do you recall anything being said to the storekeeper by any of the police officers before you were identified? “A. Before? “Q. Yes. “A. I was identified? - “Q. Yes. “A. Yes. The detective sergeant showed the police officer my wallet, and, said, we think that we' have the. man here. Would you take a look at him. And the guy stepped up and said, well— yes, I remember him or I recognize him or something, words to that effect. He didn’t at that time say, yes, he is the man that robbed me. He just said I remember him. I recognize him.” . The defendant contends that if the transcript of the evidence contained the testimony of Elvin Besco it would definitely show that his identification was tainted. The only testimony in regard to the identification that is missing in the case is that of Besco. The testimony of Officer James W. Johnson relating to the identification is contained in the hearing on the motion to suppress the evidence of the identification. Johnson testified that when the defendant was requested to go back to the Circle K for identification that he volunteered willingly to do so, because he had not done anything; that he requested that he' be permitted to mingle with the other people at the Circle K to determine if Besco could pick him out among the crowd which had gathered there. Officer Johnson further testified Sergeant Gomez told him to “get the guy to step outside in front of the car where Mr. Besco could identify the man.” The defendant then asked “why don’t you just let me go in the Circle K and let him point me out.” Sergeant Gomez stated “this isn’t the way we do this.” On cross-examination he admitted the defendant had requested permission to make a purchase or approach Besco to see if he could be identified. He stated that the defendant had a conversation with Gomez and that he could not honestly answer the question as to whether the defendant requested that he be allowed to be' “picked out of a group”. He also testified that he had no independent recollection as to when the defendant was handcuffed but stated that “Can’t honestly answer that, no sir. But I know one thing for sure; that he wasn’t handcuffed.” The testimony at the hearing shows that a request was made by the defendant that his identification be made while mingling in the crowd while in the store as though there to purchase an article. This is admitted by the State’s testimony. It is immaterial whether the defendant made both requests or only one. The testimony of Wilson was that he was handcuffed at the time the identification was made; while Johnson testified that he did not know when he was handcuffed, but testimony indicated he was not handcuffed at the time of identification. The defendant stated that at the time of the identification the detective sergeant said “We think that we have the man here. Would you take a look at him?” The question that must be determined by this court is whether this evidence is sufficient to taint the identification. The defendant contends that this cannot be determined without the testimony of Besco. In the settlement of the evidence under Rule 363 the defendant stated that he did not have a clear recollection of the testimony contained in the lost transcript. Fred R. Esser, the attorney who represented the defendant at the trial, in his affidavit stated: “That the alleged victim, ELVIN BESCO, did testify at the trial; “That Affiant is unable to remember his testimony, other than Mr. Besco stated someone approached him with a revolver in hand, pointed it at him, and handed him a sack. “That Besco took money out of the cash register, placed it in the sack and handed it to the person with the revolver, who left after instructing Besco to lie on the floor for five minutes. “Besco then phoned the police and gave a description to the police. Approximately 30-45 minutes later the police brought defendant to the store, and Besco identified defendant as the person who took the money. “Affiant is unable to remember the cross-examination of Besco by affiant, and in affiant’s opinion, the identification was faulty and tainted, and inconsistent in many respects, which affiant attempted to show by cross-examination and motion to suppress identification.” To this statement the county attorney objected and set forth an affidavit of Robert A. Hertzberg which relates in detail his version of the testimony of Besco. Judge Strand in settling the testimony further found that Elvin G. Besco identified the defendant Arthur Calvin Wilson as the individual who he believed was the man who robbed him. However, he further stated that “The court does not independently recollect the particulars of the testimony of Elvin G. Besco or James W. Johnson, nor does it recall the qualitative or quantitative aspects of said testimony. Accordingly, the court’s findings as herein-above set forth together with the statements presented by the defendant and the objections and proposed amendments presented by the state shall constitute the record of the missing portion of the stenographic report of these proceedings and as such is hereby settled and approved as the record on appeal herein.” He did not state that there was an in-court identification. The defendant in his brief in propria persona referred to the testimony in the preliminary hearing. This testimony was that there was an in-court identification at the preliminary hearing. The affidavit of Fred R. Esser is to the effect that the identification was faulty and tainted and inconsistent in many respects. We do not have that testimony set forth and Judge Strand did not remember the particulars of the testimony of Elvin G. Besco. Wc are confronted with the next question of what should be done where a part of a record is lost. In the case of the People v. Serrato, 238 Cal.App.2d 112, 47 Cal.Rptr. 543, the transcript of the evidence could not be produced upon appeal because of the death of a reporter. The court said: “In considering various contentions of defendants in the juridical history of the state, the common sense rule applied in the federal court with respect to the making of a record is also made controlling by the judgments of our state courts. The mere fact that a literal and fully complete reporter’s transcript cannot be secured in connection with an appeal because of the death of the reporter, or the loss of part of his record, is not ipso facto a ground for the reversal of a conviction. The essential requisite supporting the right to appeal is that there must be a complete record or a fair substitute for the complete record where no one is responsible for the inability of the court officials to file such a technically correct transcript of the proceedings below. Thus, as is said in the leading case of People v. Chessman, 35 Cal.2d 455, 462, 218 P.2d 769, 773, 19 A.L.R.2d 1084: ‘Inconsequential inaccuracies or omissions in a record cannot prejudice a party; if in truth there does exist some consequential inaccuracy or omission, the appellant must show what it is and why it is consequential. The situation is similar to that in People v. Botkin (1908), 9 CaLApp. 244, 249, 98 P. 861, where the court said, “we know of no rule that permits us to presume that defendant did not have a fair trial because a portion of the record upon * * * appeal has been destroyed without fault of either party"" “In the Chessman case, the court found that the record on appeal was adequate even though it was not a completely literal transcription of the deceased reporter’s notes. (See also People v. Fuentes, 132 Cal.App.2d 484, 282 P.2d 524; People v. Simon, 107 Cal.App.2d 105, 124, 236 P.2d 855.) But none of those cases involves a situation in which the blame for the failure to file a proper record falls wholly upon the state, as in this case, and in none of the cases is there a complete failure to furnish a convicted defendant with the necessary documents that would permit him to urge a reversal of the judgment. “Here, it is apparent from the documents contained in the clerk’s transcript that there was a vital necessity from the standpoint of the defendant, who hopes to secure redress from claimed errors, to have a reporter’s transcript of what actually took place at the trial. ‡ :fí # # “Here, we have a case in which the defendant without any fault of his own was deprived of the right to an effective presentation of his appeal due entirely to a failure on the part of an official of the trial courts to comply with the law.. It would be a violation of the fundamental rights of the defendant to hold that an effective possibility of appealing the convictions was properly taken away by the omission of a court official to perform the duties prescribed by our system of justice.” (emphasis in original) In an earlier case, People v. Fuentes, 132 Cal.App.2d 484, 282 P.2d 524, in which the reporter’s notes had been lost without fault of either party, the court held: “The impossibility of procuring a reporter’s transcript is not a ground for granting a new trial. Pen.Code § 1181. An appellant has no right to a transcript prepared in a particular manner. The burden of furnishing the reviewing court with a statement on appeal where a transcription of the reporter’s notes cannot be had is on the appellant. People v. Chessman, 35 Cal.2d 455, 457-458, 218 P.2d 769, 772, 19 A.L.R.2d 1084. If a record can be ‘prepared in such a manner as to enable the court to pass upon the questions sought to be raised’, then there is no rational likelihod or legally cognizable possibility of injustice to the appealing defendant even though a verbatim record certified by the official court reporter cannot be supplied. Idem, 35 Cal.2d at page 460, 218 P.2d at pages 771, 772. ‘Inconsequential inaccuracies or omissions in a record cannot prejudice a party; if in truth there does exist some consequential inaccuracy or omission, the appellant must show what it is and why •it is consequential.’ Idem, 35 Cal.2d at page 462, 218 P.2d at page 773. “The trial judge has determined that the record is adequate. We may not presume that defendant did not have a fair trial because part of the reporter’s notes had been lost without fault of either party. People v. Botkin, 9 Cal.App. 244, 249, 98 P. 861. On this appeal we must presume fhat defendant has been accorded a fair trial and that the judgment of conviction is valid. This pre- . sumption is buttressed by the fact that the trial judge denied defendant’s motion for a new trial. The burden is on defendant of showing either prejudicial error in the record or that the record is so inadequate that he is unable to show such error. People v. Chessman, supra, 35 Cal.2d 455, 462, 218 P.2d 769. No such showing is made in the case at bar.” In the instant case the loss of the transcript was not the defendant’s fault and the facts fall within the settlement of the court in People v. Fuentes, supra. Here it is stated the burden is on defendant of showing whether prejudicial error was in the record or the record is so inadequate that it is unable to show such error. The evidence in the instant case was such that it shows that the identification at the Circle K Market was tainted. The court erred in not granting the motion to suppress that evidence. State v. Dessureault, supra. The record does not show whether there was an in-court identification which was not tainted. Therefore the defendant is entitled to a new trial. While the facts in the instant case are not the same as in State v. Dessureault, supra, the procedure to be followed in identification cases by the trial court is set forth therein. Judgment of conviction is reversed and remanded for further proceedings not inconsistent with this decision. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and HAYS, JJ., concur.

McFarland, Justice. On March 18, 1970, a complaint was filed in which the petitioners, Robert Lee Skinner and Paul Lawrence Wright, together with two other defendants, David Oliver Williams and Donald Thomas, were charged with the crimes of conspiracy, robbery and murder. A preliminary hearing was held before the respondent Magistrate, Ben C. Birdsall, Judge of the Superior Court, sitting as a committing magistrate. During the course of the preliminary hearing the county attorney was unable to present evidence from the witness Lucius Sorrell for the reason he was an admitted narcotic addict and an LSD user. The court found that he was incompetent to testify at that time. • Another witness, George McDonald, refused to testify after having been granted immunity from prosecution. McDonald was found in contempt •of court and confined to the Pima County Jail until such time as he would purge himself by testifying as to certain sworn statements. The court found there was reasonable cause to hold the defendants David Oliver Williams and Donald Thomas to answer for the crimes charged. The court discharged the petitioners finding that there was “not sufficient evidence” to believe them guilty as charged. The order was entered on April 10,,.1970. On June 9th the County Attorney petitioned the court to set aside its order and reopen the preliminary examination as to Petitioners Skinner and Wright, for the reason that the witness McDonald who had been confined in jail was ready to give evidence on the matter. The court vacated the order. The next day the petitioners being present and represented by counsel the court continued the hearing and heard testimony. Petitioners in this action seek their release on the following grounds: A. That the Court was without jurisdiction. B. That the Court, in the exercise of its jurisdiction, violated these defendants’ constitutional rights of due process, confrontation and double jeopardy. The record ■ indicates petitioners were afforded the right of confrontation, and double jeopardy is not involved. As stated in State ex rel. Mahoney v. Stevens, 79 Ariz. 298, 288 P.2d 1077: “A preliminary hearing, or as otherwise called a preliminary examination, is not a trial, in its ordinary sense, nor is the determination thereof a final judgment. It is simply a course of procedure whereby a possible abuse of power may be prevented, and accused discharged or held to answer, as the facts warrant ife ifc tf This court has held that in the absence of a specific rule or statute the court has inherent jurisdiction to modify and vacate its own judgments and orders in criminal cases in accordance with Rule 60(c) of the Rules of Civil Procedure, as amended, 16 A.R.S., unless sooner terminated by appeal. State v. Graninger, 96 Ariz. 172, 393 P.2d 266; Sam v. State, 33 Ariz. 421, 265 P. 622. Rule 60(c), A.R.S. 16, requires that such motion to modify or vacate be made within a reasonable time and not more than six months after the judgment, order or proceeding was entered or taken. In the case of Belcher v. Superior Court, 105 Ariz. 461, 466 P.2d 755, the court, vacated a dismissal of a case against a de fendant which had been made upon a motion of the County Attorney for the reason the complaining witness was not available when the witness appeared a few minutes later. We cited as supporting this rule the civil cases of Goodman v. Gordon, 103 Ariz. 538, 447 P.2d 230; Jackson v. Pacific Investment Co., 94 Ariz. 416, 385 P.2d 708, and Zimmerman v. Western Builders’ and Salvage Co., 38 Ariz. 91, 297 P. 449. In Belcher, supra, we said: “The Goodman, Zimmerman, and Jackson cases, supra, are of a civil nature. However, the same principles apply in reference to criminal matters. Condos v. Superior Court, 29 Ariz. 186, 239 P. 1032 (1925). See also Campbell v. Thurman, 96 Ariz. 212, 393 P.2d 906 (1964); State v. Lopez, 96 Ariz. 169, 393 P.2d 263 (1964); Sam v. State, 33 Ariz. 421, 265 P. 622 (1928). The obvious implication is that the court does not lose jurisdiction in a matter by ordering its dismissal before jeopardy has attached, unless there is an abuse of discretion in vacating the order of dismissal and reinstating the case for trial. In Condos v. Superior Court, supra, this court stated as follows: ‘It is a general rule of the common law that all the judgments, decrees, or other orders of a court, however conclusive in their character are in its control during the term at which they are rendered, and may during that term be set aside, vacated or modified, by that court. * * * It is true that most of the cases in which this question has arisen have been civil ones, but except where the constitutional provision in regard to former jeopardy would forbid, we see no reason in logic or justice why the same rule should not apply in a criminal proceeding.’ 29 Ariz. at 190, 239 P. at 1033. The Court did not abuse its discretion in vacating the order of dismissal in this case.” We conclude therefore that the court has jurisdiction to vacate its prior order and that he had discretion for good cause to postpone or continue this preliminary examination as to the petitioners. 17 A.R.S., Rules of Criminal Procedure, Rule 20. The court’s error in not doing so allowed the petitioners temporary freedom and the benefit of the doubt. From the record before this court they were afforded a lengthy preliminary examination and such error was harmless beyond a reasonable doubt. We find that petitioners were afforded due process and their constitutional right to a speedy trial was not infringed upon. Relief Prayed for in Petition for Special Action is denied. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and HAYS, JJ., concur.

HAYS, Vice Chief Justice. Appellant, Donald Eugene Young, entered pleas of guilty to charges of attempted rape and burglary, second degree. From the judgment of conviction and sentence he appeals. The record indicates that two informations filed against appellant were consolidated for trial. In Cause No. 60359, filed November 25, 1969, appellant was charged with burglary, first degree. This information was later amended to include an allegation of a prior felony conviction. Cause No. 62033, filed March 24, 1970, charged appellant with rape and robbery. Subsequently however, amended informations were filed reducing the charges to burglary, second degree in Cause No. 60359 and to attempted rape in Cause No. 62033. Through his counsel, appellant moved to withdraw his pleas of not guilty and to enter a plea of guilty to both amended informations. The trial judge asked appellant a series of questions to determine if his change of pleas were being made knowingly, intelligently and voluntarily. In response to the court’s inquiries, appellant indicated that he had fully conferred with his counsel with respect to his change of pleas; that he had not been coerced, threatened or promised a lighter sentence; that he understood that a plea of guilty waived all rights to a jury trial and to confront witnesses; that he had no questions concerning this change of pleas and that he understood the significance thereof. Thereupon, the court accepted appellant’s plea of guilty to both amended informations. On April 15, 1970, appellant was sentenced to serve not less than four nor more than five years for the burglary charge and to not less than ten nor more than eleven years for the charge of attempted rape. After the sentences were ordered to run consecutively and appellant was asked if he understood his rights of appeal, appellant replied: “Yes, but now the consecutive, what is the meaning of that?” The appellant was then told that this would be explained by his lawyer. Thereafter appellant moved to vacate the sentences and to reinstate his pleas of not guilty. This motion was denied. Appellant contends that the court erred in refusing to vacate the sentences imposed and to permit him to withdraw his guilty pleas. Appellant points out that the record does not reflect that he was advised that he could receive consecutive sentences or that he was ever told the meaning of the word “consecutive.” He contends that the failure of the record to so indicate is reversible error within the holding of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Although the trial judge has the discretion to order concurrent sentences for two offenses both of which are independent of each other in time and space, a defendant has no right to receive concurrent sentences. Further, we are unpersuaded by claims of ignorance with respect to matters clearly obvious to the everyday layman. Both offenses for which appellant stood charged occurred on separate occasions. The most basic logic and reflection make it apparent that separate offenses merit separate punishments. Only one experienced in the law of sentencing would be aware that the trial judge has the discretion to order concurrent sentences for separate crimes and such person, of course, would have no argument if he received consecutive sentences. It is clear that Boykin requires that the record indicate that defendants understand the consequences of their guilty pleas. However, this court is of the opinion that the real thrust of Boykin is that a defendant may not be permitted to give up constitutional rights unless he is aware of them and voluntarily waives them. A defendant has no constitutional right to receive concurrent sentences for two separate offenses whether the sentence is imposed pursuant to a plea of guilty or after a verdict of guilt is rendered by a jury. Even if Boykin requires that a defendant be aware of certain consequences of a guil ty plea other than the giving up of constitutional rights, we are of the opinion that such a requirement would not apply to a consequence so obvious as separate punishments for separate crimes; a consequence of which the defendant must be presumed to be aware. Appellant also urges that the sentences imposed must be construed to run concurrently rather than consecutively. The minute entry relating to Cause No. 62033 directs the sentence thereunder to run consecutively with the sentence under Cause No. 60359. However, the minute entries relating to both causes indicate that each sentence is to begin on October 27, 1969, the date appellant was incarcerated. These minute entries reflect substantially the same language used by the trial judge when he pronounced sentence in open court. It is, of course, manifestly impossible for consecutive sentences to both begin on the same date. Since the sentencing language is consistent with both consecutive and concurrent sentences, the cause must be remanded for the purpose of clarifying and making certain the length of imprisonment appellant must serve for his crimes. Judgment of conviction of the trial court is affirmed. The sentences are vacated and the cause remanded for resentencing. STRUCKMEYER, C. J., and UDALL, LOCKWOOD and CAMERON, JJ., concur.

UDALL, Justice: Defendant John Lee Sellers was convicted of the crime of first degree murder and sentenced to life imprisonment in the death of his mother, Mrs. Jackie I-Iardy. Defendant appeals from the conviction, sentence and judgment of the Superior Court, Pima County. The issue defendant presents in this appeal is whether the evidence presented to the jury was sufficient for it to find the requisite deliberation and premeditation to sustain a verdict of first degree murder. A.R.S. § 13-452. Defendant asks that the conviction be reversed or that the judgment be modified to one of second degree murder, pursuant to the authority granted this court by A.R.S. § 13-1716. In determining the issue before us, we must view the evidence in a light most favorable to upholding the jury’s verdict. So long as there is substantial evidence in the record supporting such verdict, this court must resolve conflicts in the evidence against the defendant. State v. Bradley, 99 Ariz. 328, (1965), 409 P.2d 35; State v. Hernandez, 96 Ariz. 28, 391 P.2d 586 (1964); State v. Izzo, 94 Ariz. 226, 383 P.2d 116 (1963); Moore v. State, 65 Ariz. 70, 174 P.2d 282 (1946). A brief summary of the evidence is as follows: The defendant and his mother, the deceased, lived together in a trailer in Tucson. On June 3, 1968 the deceased and the defendant disappeared. The remains of the deceased were found several weeks later in a shallow grave in the desert near Tucson. Medical experts established that the cause of death was several traumatic blows to the head, resulting in multiple skull fractures. The testimony revealed that at least seven blows were inflicted and that any one of the blows could have caused death. A subsequent investigation of the trailer where the deceased and the defendant had lived revealed considerable evidence of blood, particularly in the bedroom where the deceased slept. A hammer, with blood stains on its head, was also found in the bedroom. Further testimony established that the hammer head fit at least two of the fractures of the deceased’s skull. Other testimony on behalf of the prosecution indicated that the decedent and the defendant had been together most of the day of June 2 and arrived home early in the evening. Witnesses observed the deceased’s pickup truck leave the trailer at about 4 a. m. the morning of June 3. Defendant frequently drove the truck. The truck was later found abandoned. It contained blood stains and the defendant’s boots, also stained with blood. The defendant took the stand on his own behalf and denied being present at the trailer at the time the crime was committed. He testified that he had gone to a store some miles away to purchase beer and that he found his mother’s body when he returned. He also testified that he was afraid to call the police because he was then on parole. He described attempting unsuccessfully to burn the body, then loading it into the pickup and burying it nearby. He testified that he then purchased a gun and fled to California. The jury disregarded defendant’s testimony that he was not present at the time of the murder. This it was permitted to do. See State v. Izzo, 94 Ariz. 226, 230, 383 P.2d 116, 118 (1963). The jury found the defendant guilty of first degree murder and set the penalty at life imprisonment. As we have stated earlier, the only issue presented here is whether the evidence was sufficient to support the veidict of first degree murder. The evidence shows clearly that the deceased was killed by a deadly weapon, i. e. a hammer. Malice aforethought can be inferred from the use of a deadly weapon. State v. Izzo, supra; State v. Rivera, 94 Ariz. 45, 381 P.2d 584 (1963); State v. Preis, 89 Ariz. 336, 362 P.2d 660 (1961). The defendant herein introduced no evidence of provocation or other circumstances to reduce the crime from murder to manslaughter. See A.R.S. § 13-454, State v. Maloney, 101 Ariz. 111, 416 P.2d 544 (1966). Defendant correctly points out that in order to prove first degree murder as opposed to second degree murder the state must prove deliberation and premeditation beyond a reasonable doubt. Moore v. State, 65 Ariz. 70, 174 P.2d 282 (1946). In this case the evidence is circumstantial. However, deliberation and premeditation may be shown from the circumstances. State v. Bustamante, 103 Ariz. 551, 447 P.2d 243 (1968); State v. Izzo, supra; State v. Singleton, 66 Ariz. 49, 182 P.2d 920 (1947). Here the evidence shows not only that the murder was committed with a deadly weapon, but further that it was committed' by means of repeated blows, numbering at least seven, and any one of which was sufficient to cause death. In addition the evidence also shows defendant’s steps shortly after the murder to dispose of the body. The jury was properly instructed as to first degree murder. That instruction was in part as follows : “To constitute murder of the first degree the killing, as I say, must be accompanied by a clear, deliberate intent to take life. The intent to kill must be the result of deliberate premeditation and formed upon a preexisting reflection and not upon a sudden heat of passion to preclude the idea of deliberation. There need be, however, no appreciable space of time between the intention to kill and the act of killing. They may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by and be the result of a concurrence of will, deliberation and premeditation on the part of the slayer. And if such is the case the killing is murder of the first degree, no matter how rapidly these acts of mind may succeed each other or how quickly they may be followed by the act of killing.” The instruction is the same as that approved by this court in State v. Maloney, 101 Ariz. 111, 416 P.2d 544 (1966), and State v. McGee, 91 Ariz. 101, 370 P.2d 261, cert. den. 371 U.S. 844, 83 S.Ct. 75, 9 L.Ed.2d 79 (1962). See also, Sullivan v. State of Arizona, 47 Ariz. 224, 55 P.2d 312 (1936); Macias v. State, 36 Ariz. 140, 283 P. 711 (1929). It is not the duty of this court to re-try conflicts in the evidence or to determine whether we would reach the same result as the jury. State v. Foggy, 101 Ariz. 459, 420 P.2d 934, cert. den. 386 U.S. 1025, 87 S.Ct. 1386, 18 L.Ed.2d 468 (1967); State v. Bearden, 99 Ariz. 1, 405 P.2d 885 (1965). In this case we are of the opinion that the circumstances are sufficient to justify the jury’s conclusion that the only reasonable hypothesis was murder in the first degree. Moore v. State, supra. On September 30, 1970 defendant, acting pro se, filed with this court a “Petition for Postponement”. In this petition defendant expresses dissatisfaction with his present counsel, and requests that this court postpone action on the appeal pending appointment of other counsel for the purpose of filing new briefs on defendant’s behalf. We have carefully considered this motion together with the record on appeal and conclude that the motion should be denied. The record shows that defendant has already been represented by no less than six attorneys in this matter and that defendant has expressed dissatisfaction with all who have represented him. The judgment is affirmed. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and McFARLAND and HAYS, JJ., concur.

OPINION BIRDSALL, Judge. This is an appeal from a judgment in favor of defendant/appellee on both the complaint and counterclaim in a contract action. The contract was a May, 1976 agreement to lease a store of a specific size to be built in accordance with the specifications of the lessee for the interior in a shopping center of a certain size. Appellant initiated this suit for damages for an alleged breach by appellee when it terminated the lease in May, 1977. Appellee raised several defenses to this claim and counterclaimed for damages alleging appellant’s breach for failure to construct the shopping center and store, which were the objects of the lease, within an agreed time period. After a bench trial, the court made findings of fact and found for appellee on the complaint and counterclaim and awarded it $28,519.92 in compensatory damages plus costs and attorney’s fees. Appellant contends that the judgment is unsupported by the facts. We do not agree. More specifically, appellant contends that appellee was not entitled to rescission due to delay in performance because the contract did not make time of the essence. The trial court’s conclusions do not include any characterization of the remedy given appellee. However, appellant’s characterization of the remedy as rescission is inconsistent with the pleadings and the form of relief awarded. Implied in every judgment, in addition to express findings made by the court, is any additional finding that is necessary to sustain the judgment, if reasonably supported by the evidence, and not in conflict with the express findings. In Re Holman’s Adoption, 80 Ariz. 201, 295 P.2d 372 (1956). Likewise, conclusions of law necessary to sustain the judgment are implied if supported by the evidence and the findings. H.M.L. Jr. v. State,-Ariz. -(App., 2 CA-CIV 3757, filed 2/13/81). Had the court granted rescission, both parties would have been restored to their original status. The fact that only appellee was restored indicates that the court found a breach by appellant which excused appellee from performing and entitled it to damages. If the judgment can be sustained on any theory framed by the pleadings and supported by the evidence, we must affirm. See Lawrence v. Valley National Bank, 12 Ariz.App. 51, 467 P.2d 763 (1970). The court found that appellant was “not able to perform the part of its agreement which required completion of the building [for appellee’s store] by August 1, 1977.” Appellant does not dispute this fact but argues that it has no significance since time was not of the essence in this contract. We do not agree. The original written lease agreement did not make time of the essence, although it did provide for a per diem delay penalty if the lease did not begin by April 1, 1977. In August or September, 1976, appellant informed appellee that delays made the April 1,1977 lease date impossible. Negotiations began about a new occupancy date. Appellant then agreed that the store would be completed in time to prepare for an August 1, 1977 opening and thus modified the original contract. A written contract may be modified by subsequent oral changes that are supported by consideration. Pleasant v. Arizona Storage & Distributing Co., 34 Ariz. 68, 267 P.2d 794 (1928). In the exchange of consideration here, appellant got a delay of its performance from April 1 to August 1 and an implied release from the delay payments during that time and appellee got a time is of the essence provision. A time is of the essence provision may be implied from the character of the subject matter. See Bennie v. Becker-Franz Co., 14 Ariz. 580, 134 P.2d 280 (1913). The trial court found: “2. That if the building were completed by October 1, 1977, it would not have permitted sufficient lead time for the various preparations for the department store opening, including fixturing, stocking, hiring the employees, advertising, etc., prior to the Christmas season. 3. That Christmas season sales were of major importance to JACOME’S DEPARTMENT STORE, INC. in keeping the proposed department store in a financially viable condition in the first year of operation. These findings indicate the reason the August opening date was material to the agreement for appellee. Appellant’s awareness that the opening date was material was shown by its participation in the ground-breaking ceremony at which the opening date of August 1 was publicly announced. Appellant argues that this was a construction contract and that time is not ordinarily of the essence in such an agreement citing Taylor v. Goelet, 208 N.Y. 253, 101 N.E. 867 (1913). Appellee counters that the agreement is a lease where time for performance provisions are often very material. Actually appellee argues that the agreement is a “shopping center” lease. See Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla.1969). Although appellant correctly characterizes its interests in this agreement as that of a contractor as well as a landlord, appellee’s interests cannot be ignored. The tenant in a shopping center lease is, as in this case, in the business of retail sales. Such a tenant’s position can be likened to the retail merchant who is concerned with having sufficient inventory of saleable merchandise to attract customers and satisfy their demand. Often, as in the instant case, such business is seasonal. Thus appellee is like the buyer in mercantile cases where even though the contract does not specify in so many words that time is of the essence, such a provision is sufficiently expressed if it appears that the parties intended that it be so. See Sunshine Cloak & Suit Co. v. Roquette Bros., 30 N.D. 143, 152 N.W. 359 (1915). When time of performance is material to the contract, failure of one party to perform by the contract deadline warrants terminating the contract. Allen v. Martin, 117 Ariz. 591, 574 P.2d 457 (1978). The trial court also found: “4. That THE CORONADO COMPANY, INC. unilaterally planned to build a substantially reduced project from the one originally proposed in “Phase 1”. 6. That THE CORONADO COMPANY, INC. had not obtained building permits as of May 2, 1977. 7. That there were few actual tenants signed up on May 2, 1977. 8. That on May 4,1977, First National Bank submitted a guideline for possible interim financing for a project substantially smaller than that originally represented, but which was not a commitment for the construction costs. 9. That from the above facts and others, it is found that the October completion date was not a firm one, the project, reference size and scope as originally represented to JACOME’S, was not going to be built until an unknown time, if ever, and JACOME’S store, upon opening, would have been left as basically a “freestanding” store and not an anchor store in a fully developed complex.” The performance appellant arguably tendered was substantially less than the agreement required and the earliest projected completion date was at least two months past August 1. In fact, the trial court found that appellant’s performance at any time in the near future was seriously in doubt. Consequently, even if we do not imply a provision making time of the essence, a promise to perform in a reasonable time is implied. See Zancanaro v. Cross, 85 Ariz. 394, 339 P.2d 746 (1959). Under these circumstances, the court could have found that appellant breached its promise to perform within a reasonable time and that failure was a material breach. Appellant contends that before appellee could terminate the agreement because of a failure to perform within any time limit it was entitled to notice of appellee’s intention. Since the court’s findings imply that in May, 1977 appellant was unable to complete its promised performance within a reasonable time, any notice by appellee of an intention to terminate would have been futile. The law does not require a futile act. Cf. Kamert Brothers Enterprises, Inc. v. Tanque Verde Plaza Co., 102 Ariz. 301, 428 P.2d 678 (1967) (actual tender not required if it would be a useless act). The facts found by the court would also support a conclusion that appellant attempted to unilaterally modify the agreement. While appellee’s store remained the same size, the shopping center surrounding it at the time of opening was to be significantly smaller than originally promised, if not non-existent. A party cannot unilaterally alter the terms of a contract without the assent of the other party. Yeazell v. Copins, 98 Ariz. 109, 402 P.2d 541 (1965). The alteration of the shopping center plans without the consent of appellee was a material breach of the contract and could justify appellee’s termination. From these facts and others, the court expressly found that appellee was legally justified in terminating the lease and impliedly found that appellant had breached the contract. Upon the independent breach of one party, the other party may treat the contract at an end and sue for damages. See Graham v. Asbury, 112 Ariz. 184, 540 F.2d 656 (1975). Appellee terminated the contract in accordance with its terms, sustained its burden of proof, and was entitled to damages. The damages awarded were reasonably justified by the evidence. We affirm. HATHAWAY, C. J., and HOWARD, J., concur. . October 1 was a later possible completion date suggested by appellant after it became known that the August 1 date would not be met.

OPINION HOWARD, Judge. Does the immunity from actions at common law or by statute granted to an employer under A.R.S. Sec. 23-906 of our Workmen’s Compensation Act apply to a wrongful death action based on the death of an Indian which occurred on the Navajo reservation while the Indian was employed by a private contractor engaged in mining uranium? We find that it does and affirm. Appellant filed a five-count action against appellee Kerr-McGee. All counts were based upon the death of appellant’s husband from lung cancer which he allegedly acquired while working for appellee in its mining operation on the Navajo reserva tion. Count I of the complaint was for wrongful death. Count II alleged strict liability by virtue of the deceased’s employment in mining, a hazardous occupation as defined by A.R.S. Sec. 23-803. Count III was based on strict liability as a result of the abnormally dangerous activity being carried on by Kerr-McGee and Counts IV and V alleged that Kerr-McGee was liable under the theories of fraud and intentional tort based on its intentional failure to warn the deceased of the dangers and health hazards to which he would be exposed. Kerr-McGee filed a motion to dismiss for lack of jurisdiction on the ground that exclusive jurisdiction was with the industrial commission. The trial court granted its motion. Preliminarily, we observe that an Indian has the same rights as any other person to invoke the jurisdiction of state courts to protect legal rights and matters not affecting either the federal government or tribal relations. This right applies to wrongful death actions against a non-Indian defendant for an accident which has occurred on the reservation. Paiz v. Hughes, 76 N.M. 562, 417 P.2d 51 (1966). Prosecution of such a claim does not affect the rights of the Navajos to make their own laws and be ruled by them, will not affect their tribal relations and will not affect the rights of the federal government. Paiz v. Hughes, supra. The record shows that Kerr-McGee has complied with A.R.S. Sec. 23-961 of our Workmen’s Compensation Act and therefore cannot be held liable for damages because of the provisions of A.R.S. Sec. 23-906 if the act applies to the accident in question. Relying heavily on Swatzell v. Industrial Commission, 78 Ariz. 149, 277 P.2d 244 (1954), appellant contends that our workmen’s compensation laws do not extend to the Navajo reservation. Furthermore, that the application of 40 U.S.C. Sec. 290 violates the treaty between the United States and the Navajos. Kerr-McGee contends that Swatzell is distinguishable and that 40 U.S.C. Sec. 290 makes our workmen’s compensation laws applicable to the facts here. It also asserts that there is no treaty violation involved. We agree with Kerr-McGee’s position. Before discussing Swatzell, it is necessary to set forth the provisions of 40 U.S.C. Sec. 290: “Whatsoever constituted authority of each of the several States is charged with the enforcement of and requiring compliances with the State workmen’s compensation laws of said States and with the enforcement of and requiring compliance with the orders, decisions, and awards of said constituted authority of said States shall have the power and authority to apply such laws to all lands and premises owned or held by the United States of America by deed or act of cession, by purchase or otherwise, which is within the exterior boundaries of any State and to all projects, buildings, constructions, improvements, and property belonging to the United States of America, which is within the exterior boundaries of any State, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State within whose exterior boundaries such place may be. For the purposes set out in this section, the United States of America vests in the several States within whose exterior boundaries such place may be, insofar as the enforcement of State workmen’s compensation laws are affected, the right, power, and authority aforesaid: Provided, however, That by the passage of this section the United States of America in nowise relinquishes its jurisdiction for any purpose over the property named, with the exception of extending to the several States within whose exterior boundaries such place may be only the powers above enumerated relating to the enforcement of their State workmen’s compensation laws as herein designated: Provided further, That nothing in this section shall be construed to modify or amend the United States Employee’s Compensation Act, as amended.” (emphasis in original) Having set forth the federal statute, we return to the Swatzell case. Swatzell, a non-Indian, was injured while working at the Navajo tribal sawmill located on the reservation. He waived his rights to sue his employer and filed a claim with the industrial commission for compensation. The commission denied compensation because it was without jurisdiction to adjudicate the claim. On appeal our supreme court held that the industrial commission was correct in its jurisdictional conclusion for two reasons. First, Swatzell was neither employed by the federal government nor by the tribe because the tribe was not operating the enterprise. Although not directly employed by the federal government, Swatzell’s immediate supervisor was answerable not to the tribe or tribal council, but to the reservation superintendent and later to civil service employees of the Bureau of Indian Affairs, Resources Department. The court found that Swatzell’s employer was an agency or instrumentality of the United States and, therefore, the Arizona Workmen’s Compensation Act did not apply because it does not subject federal entities to its provisions. With respect to 40 U.S.C. Sec. 290, the court held that the statute did not apply because general acts of Congress do not apply to Indian activities unless worded so as to clearly manifest an intent to include them and no clear intention appears in the act. The court, in examining the Senate Committee Report, SR No. 2294, 74th Congress, Second Session, which accompanied the act, concluded that the intent of Congress was to extend workmen’s compensation to mechanics and laborers employed by contractors. Since the tribal sawmill was not a “contractor”, the statute did not apply- The facts here are distinguishable from those in Swatzell for the simple reason that Kerr-McGee is a contractor. Moreover, the law has changed since Swatzell was decided. The proposition relied upon in Swatzell regarding general acts of Congress is no longer viable. A general statute in terms applying to all persons includes Indians and their property interests. Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960). The Navajo lands are held by the United States in trust for the Navajo tribe. Accordingly, we hold that 40 U.S.C. Sec. 290 and the Arizona Workmen’s Compensation Act apply here. We are also unable to agree with appellant’s claim that the application of U.S.C. Sec. 290 to the facts here abrogates the Navajo’s right of self-government secured by the treaty of June 1,1868,15 Stat. 667. The Workmen’s Compensation Act eliminates litigation and places on business the burden of caring for injured employees, or, when killed, their dependents. Corral v. Ocean Accident & Guaranty Corp. Ltd., 42 Ariz. 213, 23 P.2d 934 (1933). The act provides security for members of the employee’s family as well as the employee during periods of disability. Industrial Commission v. Oden, 68 Ariz. 234, 204 P.2d 849 (1949). It also provides the procedure by which claims arising out of industrial accidents may be promptly resolved. Bergstresser v. Industrial Commission, 105 Ariz. 27, 458 P.2d 961 (1969). The Workmen’s Compensation Act does not conflict with the treaty nor with tribal rights under the treaty. Cf. Navajo Tribe v. National Labor Relations Board, 288 F.2d 162 (D.C.Cir. 1961), aff’d 366 U.S. 928, 81 S.Ct. 1649, 6 L.Ed.2d 387 (1961) (the provisions of the National Labor Relations Act are applicable to businesses and business operations existing on the Navajo reservation). Appellant next contends that even if the Workmen’s Compensation Act applies, her complaint should not have been dismissed because there was a factual issue as to whether Kerr-McGee properly posted notices in the Navajo language of the employ ee’s right of election as required by the act. We do not agree. The option given an employee, that is, to seek benefits under the Workmen’s Compensation Act or maintain a tort action against the employer where the employee fails to post the required notices, is personal to the employee and cannot be exercised by the employee’s personal representative. Jackson v. Northland Construction Co., 111 Ariz. 387, 531 P.2d 144 (1975). As for appellant’s fraud count we first turn to Larsen, Workmen’s Compensation Law, 13-7.2, Sec. 68.32 which states: “The cases involving allegations of deceit, fraud, and false representation can best be sorted out by distinguishing those in which the deceit precedes' and helps produce the injury, and those in which the deceit follows the injury and produces a second injury or loss. In the first category, a tort action has usually been found barred, since the deceit, so to speak, merges into the injury for which a compensation remedy is provided .... ” Accord, Buttner v. American Bell Telephone Company, 41 Cal.App.2d 581, 107 P.2d 439 (1940); Sarber v. Aetna Life Insurance Company, 23 F.2d 434 (9th Cir. 1928); Boyd v. American Mutual Liability Insurance Company, 11 So.2d 102 (La.App. 1942); Brooks v. American Mutual Liability Insurance Company, 7 So.2d 658 (La.App. 1942). In Wright v. F.M.C. Corporation, 81 Cal. App.3d 777, 146 Cal.Rptr. 740 (1978) an employee filed suit against an employer seeking recovery for injuries received while mixing chemicals. The plaintiff-employee alleged that his employer knew that his job involved contact with noxious chemicals and fraudulently misrepresented the hazards to induce him to seek employment. He further claimed that by reason of his employer’s misrepresentations, the provisions of the workmen’s compensation laws of California could be avoided. The court in rejecting the plaintiff’s contention, stated: “ ‘The fact that appellant founds his [case] upon the deceit allegedly practiced by [the employer] is immaterial (Buttner v. American Bell Telephone Company, (1940) 41 Cal.App.2d 581, 584, 107 P.2d 439, 441).’ ” 146 Cal.Rptr. at 740. As for the count on intentional tort, we first turn to A.R.S. Sec. 23-1022 which states: “A. . .. compensation pursuant to the provisions of this chapter for injuries sustained by an employee shall be the exclusive remedy against the employer or any co-employee acting in the scope of his employment . . . except where the injury is caused by the employer’s or the co-employee’s wilful misconduct and the act causing the injury is the personal act of the employer ... or if a corporation, on the part of an elected officer thereof. B. The term ‘wilful misconduct’ as employed in this section shall be construed to mean an act done knowingly and purposely with the direct object of injuring another.” (emphasis added) The foregoing statute was construed in Serna v. Statewide Contractors, Inc., 6 Ariz. App. 12, 429 P.2d 504 (1967) where the court stated: “It is well settled that where a statute expressly defines certain words and terms used in the statute the court is bound by the legislative definition in all cases where the rights of the parties litigant are based upon that statute, (citation omitted). The legislature has set two requirements which must be proved in order to exempt an employee from the Workmen’s Compensation Act and permit recovery against the employer. The first is, the act must have had the direct object of injuring another. Gross negligence, or wantonness amounting to gross negligence, is not sufficient to constitute a ‘willful act’ under our statutory definition. It must be shown that the negligence or wantonness was accompanied by the intent to inflict an injury upon another person. ****** It would appear our statute as well as the principles governing the interpretation of the workmen’s compensation statutes which provide for suit at common law for the employer’s willful misconduct require that there be deliberate intention as distinguished from some kind of intention presumed from gross negligence. ■ 2 Larsen, Workmen’s Compensation Law, Sec. 69.20 (1961). The Arizona statute is most restrictive in this regard.” 429 P.2d at 507-08. The necessity for actual intent to injure is pointed out in Larsen, Workmen’s Compensation Law, Vol. 2A, 13-5, Sec. 68-13 where it is stated: “Since the legal justification for the common-law action is the non accidental character of the injury from the defendant employer’s standpoint, the common-law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.” It is clear here that the basis of appellant’s claim for an intentional tort is the failure to warn. We find that her allegations are insufficient to take the conduct outside of the exclusive remedy of the Workmen’s Compensation Act. Such allegations justify the granting of a motion to dismiss for lack of jurisdiction. Cf. Sanford v. Presto Manufacturing Company, 92 N.M. 746, 594 P.2d 1202 (App.1979). Affirmed. HATHAWAY, C.J., and PHILIP FAH-RINGER, Superior Court Judge, concur. NOTE: Judge Ben C. Birdsall having recused himself in this matter, Judge Philip Fahringer was called to sit in his stead and participate in the determination of this decision. . Appellant also filed a parallel suit in the United States District Court, Johnson v. Kerr-McGee Oil Industries, Inc., No. CIV 79-331-Tucson-MAR which was dismissed by the federal court on the grounds that 40 U.S.C. Sec. 290 applied. A similar ruling was made in the district court case of Begay v. Kerr-McGee Corporation, 499 F.Supp. 1317 (D.C.1980).

STRUCKMEYER, Chief Justice. Defendant Wilbert Martin Johnson was informed against, tried by jury, and convicted of the crime of robbery. From the judgment of conviction and sentence he appeals. The defendant first urges that the trial court committed error in permitting cross-examination of defendant’s alibi witness, service station manager Ray Hawkins, to show that the witness was presently in the city jail on a drunk driving charge and that he had numerous arrests by the Phoenix Police Department. Such evidence was improper. The question of the witness’ current incarceration in the city jail falls squarely within the principles announced in State v. Loftis, 89 Ariz. 403 at 405, 363 P.2d 585 at 586. There, we said: “The fact that he was in jail, without more, would not be proper impeachment. On cross-examination one may be impeached by showing that he was convicted of a felony, not too remote in time, but not by bad acts in general or that he has merely been charged with a crime.” By a long line of decisions, this Court has held a witness may not be impeached by specific acts of misconduct not amounting to a conviction for a felony. State v. Miranda, 104 Ariz. 174 at 186, 450 P.2d 364 at 376. (“Under our law, it is not proper to thus impeach by previous instances of misconduct.”); State v. Enriquez, 102 Ariz. 402 at 405, 430 P.2d 422 at 425. (“It is well settled that a defendant may be impeached on cross-examination by showing that he has been convicted of a felony, but not by showing bad acts in general.”) ; State v. Gallegos, 99 Ariz. 168 at 171, 407 P.2d 752 at 754. (“It has long been the rule that a witness may not be impeached by specific acts of misconduct not amounting to conviction for a felony.”) ; State v. Reyes, 99 Ariz. 257 at 261, 408 P.2d 400 at 402. (“The rule is well settled in Arizona that a witness may not be impeached by showing specific acts for which he has not received a felony conviction.”) ; State v. Johnson, 94 Ariz. 303 at 305, 383 P.2d 862 at 863. (“It has long been settled in this state that a witness cannot be impeached by showing specific acts of misconduct not amounting to a felony conviction.”); State v. Polan, 78 Ariz. 253, 278 P.2d 432; State v. Singleton, 66 Ariz. 49, 189 P.2d 920; State v. Peters, 60 Ariz. 102, 131 P.2d 814. The reason for the rule is well stated in State v. Harris, 73 Ariz. 138 at 142, 238 P.2d 957 at 959: “The reason given by the courts for this limitation is that this is a collateral matter and if allowed it would be time-consuming and a confusion of the issues. Another good reason is the protection of the witness. He should not be expected to come prepared to defend every incident of his past life but only to meet those felonious acts of which he has been convicted. If a witness knew that he would have all his alleged misdeeds made public and be open to false accusations as to others, from which he would not be permitted to defend or explain, he would dread the witness box and be reluctant to appear and give testimony freely.” The State argues that evidence of the former arrests of Hawkins and his incarceration in jail was properly shown because it was likely that he would be hostile to the police and, therefore, he would be prejudiced in favor of the defendant. But we do not think this is a permissible inference. The rule in Arizona is that in order to draw an inference from an inference, the first inference must be established to the exclusion of any other reasonable theory rather than being a probability. Buzard v. Griffin, 89 Ariz. 42, 46, 358 P.2d 155; New York Life Insurance Co. v. McNeely, 52 Ariz. 181, 79 P.2d 948. The defendant complains that the court repeated the same error in modifying the Maricopa County Recommended Jury Instruction for Criminal Cases No. 5.10 by changing the word “felony” in the instruction to “crime,” so as to read: “The fact that a witness or a party has been convicted of a crime, if such be a fact, may be considered by you only for the purpose of determining the credibility of that witness or that party. The fact of a conviction does not necessarily destroy or impair the witnesses or parties credibility. It is one of the circumstances that you make take into consideration in weighing the testimony of a witness or a party.” Obviously defendant is correct. The instruction compounds the court’s error in permitting the prosecution to examine into petty offenses and arrests because it tells the jury that it may use such evidence to discredit the witness. Defendant complains that it was improper impeachment for the prosecution to ask if one of defendant’s witnesses was an alcoholic and whether he was a member of Alcoholics Anonymous. Here again the examination was improper. The principle has been recently restated by the New York Supreme Court, Appellate Division, in Del Toro v. Carroll, 33 A.D.2d 160, 306 N. Y.S.2d 95 at 100 (1969) : “It has been said upon the general subject of testimonial impeachment that ‘a general habit of intemperance tells us nothing of the witness’ testimonial incapacity except as it indicates actual intoxication at the time of the event observed or the time of testifying; and hence, since in its bearing upon moral character it does not involve the veracity-trait * * * it will usually not be admissible’ (3 Wigmore on Evidence § 933, p. 481 (3d ed. 1940)).” See also, People v. Stanley, 206 Cal.App. 2d 795, 24 Cal.Rptr. 128; State v. Brown, 360 Mo. 104, 227 S.W.2d 646 at 649; State v. Milosovich, 42 Nev. 263, 175 P. 139 at 141. Defendant finally complains that the trial court improperly prevented his wife from testifying to a telephone conversation she had with an alibi witness by which the time of the offense was fixed in witness’ memory. The testimony was not offered to prove the truth of contents of the wife’s statement. As to this, the hearsay rule excludes extrajudicial utterances only when offered for a special purpose as assertions to evidence the truth of the matter asserted. 6 Wigmore on Evidence § 1766, p. 178 (3d ed. 1940). Telephone conversations inadmissible to prove the truth of what they assert may be admitted if the fact of the assertion is in itself relevant irrespective of its truth. See e. g., Enriquez v. United States, 188 F.2d 313 (9th Cir.); People v. Decker, 155 Cal.App.2d 165, 317 P.2d 135; People v. Jackson, 64 Ill.App.2d 217, 211 N.E.2d 610; Stickney v. State, 169 Tex. Cr.R. 533, 336 S.W.2d 133, cert. den. 363 U.S. 807, 80 S.Ct. 1245, 4 L.Ed.2d 1151. Reversed and remanded for a new trial. HAYS, V. C. J., and UDALL, J., concur.

LOCKWOOD, Chief Justice. This case is before us on a petition to review certain orders of the Court of Appeals pertaining to their opinion reported at 12 Ariz.App. 51, 467 P.2d 763. We vacate two post-opinion orders of the Court of Appeals, and order that it recall its mandate for further proceedings to determine the amount of attorneys’ fees due to the Valley National Bank. The Valley National Bank started this suit to recover the balance due on a promissory note, and the attorneys’ fees provided therein. Judgment was rendered in favor of the bank and against the defendants. On appeal, the Court of Appeals affirmed the judgment. Review is not asked of that decision. The affirmed judgment in favor of the bank included attorneys’ fees for the lowrer court action. The sole controversy involved in this review is the result of the failure of the Court of Appeals to award the bank, as the successful appellee, additional attorneys’ fees incurred in defending the appeal. Such fees should have been granted. Steele v. Vanderslice, 90 Ariz. 277, 367 P. 2d 636. As the defendants state in their brief, “This appears to be the law in this State and respondents are not proposing to challenge the basic principle at this time.” In its brief, in the Court of Appeals, the Bank in Point VII wrote: “Appellee respectfully requests that this court grant it reasonable attorneys’ fees incurred by it in furtherance of this appeal.” The Court of Appeals, in its opinion affirming the judgments, failed to mention the attorneys’ fees on appeal. At this point it is clear and defendants concede that this failure was subject to correction by a motion for rehearing. By such a motion the Court would have its attention called to the fact that the relief granted omitted an item which was requested and which should have been granted. Had a motion for rehearing been filed at that time, it would have been proper for the Court to grant a rehearing or amend its opinion to include a provision for attorneys’ fees. The bank actually did file a motion for rehearing but instead of so designating it, entitled it “Petition For Order Granting Plaintiff-Appellee An Award For Attorneys’ Fees Incurred In Defense Of Appeal.” The Court of Appeals’ opinion was filed on April 8, 1970 and the bank’s request for fees was filed on April 22, 1970, within the fifteen days allowed for filing a motion for rehearing. We have held that we look to substance rather than to form, in considering a petition for relief. Rodriquez v. Williams, 104 Ariz. 280, 283, 451 P.2d 609; Goodman v. State, 96 Ariz. 139, 393 P.2d 148; Buell v. Superior Court of Maricopa County, 96 Ariz. 62, 391 P.2d 919. We therefore hold that when the Court failed to award such fees and the bank asked for attorneys’ fees for defending the appeál, the bank’s “petition” was, in effect, a motion for rehearing, timely filed. Therefore, the Court of Appeals erred when it entered an order on August 5, 1970 to the effect that: “The appellee’s request for allowance of attorneys’ fees on appeal is denied as untimely made, in that the time for rehearing has expired.” The bank, being uncertain of what procedure to follow, filed a Petition To Recall Mandate And For Order Authorizing The Filing Of A Petition For Rehearing Or, In The Alternative, For Review. Defendants, in their response to the bank’s petition, argue that the bank did not have fifteen days to file its request for fees, as permitted for a motion for rehearing, but had only ten days — the time provided in which to file a statement of costs. They point out that A.R.S. § 12-331, subsec. 5 states that costs shall include disbursements that have been incurred pursuant to an “agreement of the parties.” We hold that this language does not include attorneys’ fees. Cf. Coury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 523, 446 P.2d 458; Genis v. Krasne, 47 Cal.2d 241, 302 P.2d 289. The Court of Appeals, instead of meeting the issue head-on, entered another order on September 17, 1970 denying the petition to recall the mandate because it appeared to the Court that “ * * * the Superior Court is the appropriate place,.to determine the amount to be allowed as attorneys’ fees for this appeal.” We see no reason to hold that the superior court is better able to determine the amount of attorneys’ fees than the Court of Appeals wherein the services were, for the most part, rendered. It knows what papers were filed, the quality of the briefs and other documents prepared, etc. Attorneys’ fees on appeal are frequently fixed by them and by us in criminal cases, without referring them back to the trial courts. For the above reasons, the following orders of the Court of Appeals are hereby-vacated: (1) Order dated August 5, 1970, denying attorneys’ fees; and (2) Order dated September 17, 1970, refusing to recall its mandate. It is further ordered that the Court of Appeals recall the mandate, proceed to determine the amount of attorneys’ fees to which the Valley National Bank is entitled, and enter judgment therefor. STRUCKMEYER, V. C. J., and UDALL, McFARLAND, and HAYS, JJ., concur.

OPINION OGG, Judge. The sole issue presented in this appeal is whether a custodial parent can waive the collection of child support arrearages under the particular facts of this case. The appellant, Sylvia Ayon Cordova, and the appellee, Alphonso Abel Lucero, were divorced on November 16,1973. The father was offered to pay child support in the sum of $150.00 a month for each of his three minor children. Thereafter the mother remarried and moved to California with her children and new husband. On November 15, 1974, the mother filed an order to show cause regarding contempt and asked for a decree establishing the arrearages in child support. The father re sponded and requested the court to modify the decree by reducing the amount of child support. On February 19, 1975, the trial court reserved the issue as to arrearages to be established at a later date and proceeded to enter an order modifying the prior child support order by reducing the monthly payment to $25.00 for each of the minor children. The second marriage of the mother ended in dissolution and she with the minor children returned to Arizona in August of 1978. A second petition for an order to show cause for contempt in the failure to pay child support was filed on August 22, 1978. At this hearing in January 1979, the mother claimed the father owned approximately $6,000 in arrearage on his child support payments. The trial court determined that the mother had waived all claimed past due child support payments through the month of August 1978. The court further ordered all child support payments to be resumed as of September, 1978. The court’s decision appears to be based primarily upon a letter sent in February 1975 by the mother, who was residing in California, to the father here in Arizona. This letter was preserved by the father and introduced into evidence. This letter informed the father that she was going to have the children adopted by her new husband. The letter in very pointed and abusive language further informed the father that she did not want any of his support money and that she did not want him near the children. The father made no further support payments after receipt of the letter. No further demands for child support payments were made upon him until approximately three and one-half years later when he was served in August of 1978 with the second order to show cause. The mother testified that she received some child welfare benefits in Los Angeles, California, and that she went to the district attorneys office and filed a complaint under the Uniform Reciprocal Support Act. She presented no evidence that the father was ever served or that a hearing was ever conducted in Arizona. There was no evidence as to the time span involved or the amount of such child welfare support received by the mother. The mother argues there was no effective waiver of child support for the minor children because under Arizona law a custodial parent cannot waive or modify a child support order without first securing a court-ordered modification of the existing decree. The father argues that the trial court properly exercised its discretion in finding the mother had waived the child support arrearages. He reasons that by her waiver and later inaction, he was led to believe he did not need to send the child support payments and that to order such payments now would cause a great injustice and a severe financial hardship. Although never specifi.cally denominated as such, it would appear that the husband is relying upon a theory of equitable estoppel. All parties to this appeal and this court are in agreement that the parents cannot, as between themselves, retroactively modify a child support judgment. It is further our opinion that a custodial parent can, in certain fact situations, effectively waive the collection of child support arrearages as ordered in such a judgment. The pertinent provision of A.R.S. § 25-327 A. pertaining to the modification and termination of child support provisions states: [T]he provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances which are substantial and continuing. This statutory provision was applied in Jarvis v. Jarvis, 27 Ariz.App. 266, 553 P.2d 1251 (1976), where this court held that installments' of child support become vested as they become due and that such child support payments cannot be modified retroactively. Accord, McClanahan v. Hawkins, 90 Ariz. 139, 367 P.2d 196 (1961). Parties cannot agree between themselves to modify a child support order, for this would constitute an unlawful delegation of the court’s authority to determine the facts which could justify a modification of support payments. Johnson v. Johnson, 105 Ariz. 233, 462 P.2d 782 (1970); Evans v. Evans, 17 Ariz.App. 323, 497 P.2d 830 (1973). While the Arizona law is clear that the parties cannot modify a judgment for court ordered child support payments, we have no dispositive Arizona case law covering the waiver issue before us. In Patterson v. Patterson, 102 Ariz. 410, 432 P.2d 143 (1967), the Arizona Supreme Court ruled, under the particular facts of that case, that laches would not bar the wife, the custodial parent, from collecting child support arrearages. The former husband defended the former wife’s attempt to collect child support arrearages by alleging her inaction on the claim for almost one and one-half years ■ barred recovery under the doctrine of laches. The court stated: “There is evidence in the record which would negative defendant’s claim of an unreasonable delay evidencing either an abandonment by the plaintiff of her claim or prejudice to the defense against such claim.” Id. at 415, 432 P.2d at 148. It appears that the court would have reached a different result if the husband had presented evidence that the wife had abandoned her claim and then waited an unreasonable time to revise her claim to the prejudice of her former husband who owed the support duty. In Corbett v. Corbett, 116 Ariz. 350, 569 P.2d 292 (App.1977), this court found that the wife, the custodial parent, was entitled to child support arrearages because there was no abandonment of her claim or showing of prejudice to the former husband and therefore the doctrine of laches did not apply. Again it appears the court would have reached a different decision if there had been evidence of an abandonment or waiver of the wife’s claim and prejudice was shown to the detriment of her former husband. In Baures v. Baures, 13 Ariz.App. 515, 478 P.2d 130 (1970), the court refused to apply the doctrine of laches to excuse the collection of child support arrearage. The court stated that such doctrine is not available absent a showing of an abandonment of the claim by the custodial parent or prejudice to the party with the support duty. An analysis of these Arizona cases leads us to conclude that under the facts of this case, the trial judge was correct in ruling that the custodial parent had waived the collection of the arrearage in the child support payments. Here the custodial parent did abandon her claim for the period of the disputed child support arrearage by writing the letter advising the father that she did not want his support and that she was going to have the children adopted by her new husband. She further waited approximately three and a half years without making any further claim. The father, with the support duty, relied upon this waiver and stopped making the payments. He is now confronted with a $6,000 arrearage claim, all to his financial prejudice. Although there is no uniformity in the statutes or the decisions among the other states, it appears some courts in other jurisdictions apply a waiver or equitable estoppel doctrine in similar fact situations. See In re Marriage of Szamocki, 47 Cal.App.3d 812, 121 Cal.Rptr. 231 (1975); Anderson v. Anderson, 48 Ill.App.2d 140, 198 N.E.2d 342 (1964); Annot., 137 A.L.R. 884 (1942). In our research, the most analogous case is Kaminski v. Kaminski, 8 Cal.App.3d 563, 565, 87 Cal.Rptr. 453 (1970). In Kaminski, the court ruled that the divorced wife waived the collection of the arrearages in a child support judgment when she orally told her former husband: “I don’t want anything from you at all”, and further denied him his rights to visitation. The facts in the case now before us are much stronger than the facts in Kaminski. Here the mother in a clear and unequivocal letter advised the father she did not want any support money, did not want him near the children, and that her present husband was going to adopt the children. We are mindful of the problems created if trial courts take a liberal approach in granting waivers to prior child support orders. The validity of prior court orders must be maintained and the welfare of the involved minor children must be protected. The facts warranting such a waiver must be closely scrutinized and such waiver should only be determined when there is clear and compelling evidence in support of such finding. In our opinion, there was sufficient clear and compelling evidence to support the judgment of the trial court and such judgment was legally correct. Affirmed. CONTRERAS, P. J., and YALE McFATE, Judge (Retired), concur. . The mother testified that she was seriously ill in the hospital at the time of the scheduled hearing. She stated she was unable to attend the hearing and was physically unable to contact her attorney. It appears no arrearage was established because of the mother’s absence at the hearing. . There is no issue before us and we express no opinion as to the rights of the State of California to recover any sums of money that were paid to the mother by the State of California to assist her in the support of the minor children while they resided in California.

McFarland, Justice. This is an action for a declaratory judgment commenced by the appellee, Worth Insurance Company (Worth) to determine if one Ivan Wilson was insured hy Worth on the date of a fatal accident on August 23, 1964. Phyllis K. Jensen, wife and mother of the appellants, was killed while riding as a passenger in a vehicle operated by the other appellant, Maurice D. Turner, when it was involved in a collision with a car operated by Wilson. The Superior Court concluded that Wilson was not insured by Worth and the Court of Appeals affirmed. 11 Ariz.App. 403, 464 P.2d 990. On August 17, 1964, Wilson went to the office of Likens Insurance Agency for the purpose of obtaining motor-vehicle-liability insurance. Mrs. Hedwig Likens was agent for Worth, among other companies, and there is no question as to her authority to bind the company for temporary insurance pending approval of an application, which is the crux of the matter here. Wilson explained to Mrs. Likens that he was employed at Davis-Monthan Air Base, and had to have insurance in order to drive his car on the base. He had previously applied to Farmers Insurance, and had received a'binder which was terminated without a policy being issued because of his past driving record. Mrs. Likens had him complete an application for a special-risk policy in the amounts of $10,000 liability per person, $20,000 per occurrence and $5,000 property damage. On the bottom of the application, in bold-face print, was a statement to the effect that: “NO COVERAGE IS IN EFFECT UNTIL A BINDER IN WRITING OR A POLICY IS ISSUED BY A POLICY WRITING OFFICE OF INTERNATIONAL SERVICE GROUP.” The words of importance are “a binder in writing or a policy.” It is conceded that Worth never issued a policy, and, in fact, refused to insure Wilson by letter dated September 18, 1964. This letter was signed and forwarded to Wilson by Mrs. Likens, which is a further indication that Mrs. Likens had authority to bind or decline coverage on behalf of her principal. The only question is whether there was temporary insurance. The appellants here argue that there was an oral binder between Wilson and Worth; that there was a written binder evidenced by a receipt; and that Worth is estopped from denying coverage by reason of its subsequent acts. It is unnecessary to consider the issues of an oral agreement and estoppel since this Court is of the opinion that Worth, through its agent Mrs. Likens, bound itself to temporary liability insurance by virtue of a “binder receipt.” By whatever name it may be known, a “binder” for temporary insurance is a contract. Assuredly it is a contract in contemplation of a subsequent and more formal agreement, but by its nature it incorporates the terms of the prospective insurance contract, whether those terms are prescribed by law or are part of the customary policy issued by the insurer. See e. g. Gardner v. North State Mutual Life Ins. Co., 163 N.C. 367, 79 S.E. 806; Seiderman v. Herman Perla, Inc., 268 N.Y. 188, 197 N.E. 190. A binder has been well defined in Seiderman v. Herman Perla, Inc., supra, as follows : “A binder, or binding slip, as it is sometimes called, constitutes a written memorandum of the important terms of a contract of insurance which gives temporary protection to the insured pending the investigation of the risk by the insurance company or until a formal policy is issued. When the binder was signed by the agent of the Globe Indemnity Company and delivered to the broker, the contract of insurance was closed and the binder became in effect the same as a regular insurance policy including by inference all the terms of a regular policy. * * * » The basic terms of the above definition have been specifically adopted by our legislature and applied to liability insurance by § 20-1120, A.R.S., which provides: “§ 20-1120. Binders “A. Binders or other contracts for temporary insurance may be made orally or in writing, and shall be deemed to include all the usual terms of the policy as to which the binder was given together with such applicable endorsements as are designated in the binder, except as superseded by the clear and express terms of the binder. “B. No binder shall be valid beyond the issuance of the policy with respect to which it was given, or beyond ninety days from its effective date, whichever period is the shorter. “C. If the policy has not been issued a binder may be extended or renewed beyond such ninety days with the written approval of the director, or in accordance with such rules and regulations relative thereto as the director may promulgate.” Thus, either an oral or written contract can amount to a temporary policy of insurance whether it is termed a contingently accepted application or a binder. A “binding receipt” was explained in Black v. Industrial Accident Commission, 215 Cal. 639, 12 P.2d 640, as: “ * * * a cover note, binding slip, certificate, or memorandum of insurance which may answer the purpose of a more formal policy or operate as a temporary expedient until the policy itself pan be issued. * * * ” In the instant case we have a “binding receipt” which reads as follows: There was some dispute in the trial court as to the meaning of the abbreviation “appl.” Mrs. Likens testified that this referred to the fact that only an application was intended — not a binder. Of course, it could also reasonably mean that the money received was “applied” to the expected policy of insurance, and, if there is an ambiguity involved, it will be decided in favor of the insured. Dairyland Mutual Ins. Co. v. Andersen, 102 Ariz. 515, 433 P. 2d 963. This familiar rule of construction, normally associated with the insurance contract itself, is equally applicable to a binder. See Annotation, 2 A.L.R.2d 943, 955-956. However, even accepting Mrs. Liken's statement that the word “application” was intended, it means but little since it merely is descriptive of what occurred at the time —that Wilson made application for insurance; a fact thoroughly acknowledged hy all parties. But the remainder of the receipt sets forth the material terms of a contract of insurance. It indicates that a consideration of $30.80 was received; that it was accepted by Likens Insurance Agency (the check for this amount was deposited to Likens account the following day) ; that the contracting party was Ivan Wilson; that it was for a “10/20/5 liability” policy; that the total amount of the account was $72.00 less the $30.80 paid; and that the balance due would be financed — which indicates that the negotiations exceeded the stage of a simple application. This receipt was signed by “H. Likens.” In addition, the application itself bears a hand-written notation that the $30.80 constituted a “down payment.” The application on its face required that a binder be in writing. The “binder receipt” complied with this requirement by the very tenor of the writing thereon, and contains no disclaimer to the contrary. Therefore, on its face, the receipt constitutes a contract of temporary insurance. However, it is claimed by the insurance company that the elementary contractual ingredient of intent was lacking. It is not seriously disputed that Wilson came into the office of Likens with the expressed intent of obtaining insurance — not in the future — but instantly, in order to obtain passage onto the place of his employment — • Davis-Monthan Air Base. Without evidence of insurance he could not obtain a “sticker” to operate his vehicle on the base; and evidence of possible insurance at some future date would be of little help. In view of this there can be little doubt as to his intent to be bound to a contract of insurance immediately, and he underlined this fact by the payment of almost half the premium. On the other hand, Mrs. Likens admitted that her intent was to have Wilson insured, temporarily, on the date of the application. Part of her testimony on this point was: “Q And did you tell Mr. Bearclaw at that time, that it was your intention that Mr. Wilson was covered at the time, that is on the 18th day of August, 1964? “A Yes. “Q And that was your recollection on the 16th day of September, 1964, isn’t that correct? “A Must have been. “Q Now, isn’t it true, Mrs. Likens, that it was your intention on the 17th day of August, 1964, to insure Mr. Wilson as of that time? “A Yes, subject to the company— “MR. DEES: I object, it’s not— “A Subject to the approval of— “MR. REES: I move to strike and I join in the objection. “THE COURT: Sustain that part of the answer giving the — I mean, beginning with the word 'subject', that is stricken. * * * * * * “Q You never did reject or attempted to reject Mr. Wilson’s alleged application until your letter to him of September 18th, is that also correct? “A Yes. “Q I think you told Mr. Rogge, that it was your intent Mr. Wilson had coverage when he walked out the door of your office? “A Yes. “Q Is it not correct, you had used this same procedure many, many times before for service men and government employees ? “A Yes. “Q It is your intention now, in these instances when you give a receipt, they can use this to get a permit to get on the Base, as proof of insurance in effect? “A That insurance had been issued. “Q Yes, that the policy will come to them at a later time? “A Yes. “Q But they have insurance when they walk out the door? “A Not every one of them. “Q But, in this case, it was your intent, isn’t that just what you said? “A It was my intention that the man would be insured. “Q Thank you. It was your intention he was covered at that time, that’s when you handed him the receipt, is it not correct ? “A My intention was that, yes.” Worth, in its brief, attempts to explain away this testimony on the basis that the intent was to cover Wilson from the date of application on the condition that Worth would subsequently accept the risk and issue its policy retroactive to such date. Obviously, such a rule would permit an insurer to hold itself immune from liability during the period while it considers whether to accept or reject the application, and then, if it accepts the risk, to assess a premium for the time that it was not obliged to assume liability. The conflicting theories on this subject were well set forth in McAvoy Vitrified B. Co. v. North American L. Assur. Co., 395 Pa. 75, 149 A.2d 42, in which case the court rejected the foregoing doctrine: ‘““The courts in several jurisdictions have construed clauses similar to the one involved here. A number of decisions have held, in accordance with defendant's view, that no contract of insurance exists until the insurer has been satisfied as to an applicant’s acceptability, and 'that the provisions that the insurance shall be in force from the date of the application means that, if and when the company is satisfied, the contract shall be considered to relate back and take effect as of that date. Mofrad v. New York Life Ins. Co., 10 Cir, 206 F.2d 491; Cooksey v. Mutual Life Ins. Co., 73 Ark. 117, 83 S.W. 317; Maddox v. Life & Casualty Ins. Co. of Tenn, 79 Ga.App. 164, 53 S.E.2d 235; Gerrib v. Northwestern Mut. Life Ins. Co., 256 Ill.App. 506; Gonsoulin v. Equitable Life Assurance Society, 152 La. 865, 94 So. 424; Bearup v. Equitable Life Assurance Society of United States, 351 Mo. 326, 172 S.W.2d 942; Raymond v. National Life Ins. Co., 40 Wyo. 1, 273 P. 667. “ ‘ “On the other hand, a number of courts have held that the provisions to the effect that the insurance shall be in force from the date of the application if the premium is paid gives rise to a contract of insurance immediately upon receipt of the application and payment of the premium, and that the proviso that the company shall be satisfied that the insured was acceptable at the date of the application creates only a right to terminate the contract if the company becomes dissatisfied with the risk before a policy is issued. Gaunt v. John Hancock Mut. Life Ins. Co., 2 Cir, 160 F.2d 599, 601-602; Occidental Life Ins. Co. of California v. Lame Elk White Horse, D.C. Mun.App, 74 A.2d 435, 438-439; Reck v. Prudential Insurance Company of America, 116 N.J.L. 444, 184 A. 777, 778; Duncan v. John Hancock Mutual Life Insurance Co., 137 Ohio St. 441, 31 N.E.2d 88, 90-91; Albers v. Security Mut. Life Insurance Co., 41 S.D. 270, 170 N.W. 159, 160; see Reynolds v. Northwestern Mutual Life Insurance Co., 189 Iowa 76, 176 N.W. 207, 208-209; cf. Stonsz v. Equitable Life Assur. Soc, 324 Pa. 97, 187 A. 403, 405-406, 107 A.L.R. 178 [stating that this view represents a trend to construe the conditions liberally]; Western & Southern Life Insurance Co. v. Vale, 213 Ind. 601, 12 N.E.2d 350, 354-355.”’” The intentions of the parties in the instant case were identical. Mr. Wilson intended that he should be insured for “10/20/5” on the date of his application, and he paid the premium therefor. Mrs. Likens intended that Mr. Wilson should be insured for “10/20/5” on the date of his application, and accepted the premium therefor. The transaction was evidenced by a receipt which set forth the material terms of the agreement. Any greater “meeting of the minds” would require them to bump théir heads together. There obviously was a contract of temporary insurance. Several collateral matters arose during the course of this case; letters written between the parties before Worth declined to continue insurance on Wilson but after the accident. The accident arose during the period of insurance, and the liability became fixed, so that any subsequent disclaimers are irrelevant. This is a Declaratory Judgment action to determine if Wilson was insured at the time of the accident. We have determined that he was insured by Worth, and it matters not whether one or all the plaintiffs in any future tort actions obtained this ruling, since our decision is limited only to that question. The decision of the Court of Appeals is vacated. The judgment of the Superior Court is reversed, and the matter is remanded for further proceedings not inconsistent with this opinion. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and HAYS, JJ., concur.

McFarland, Justice: Charles Frederick Zimmer, hereinafter referred to as defendant, was convicted and sentenced for the unlawful sale of marijuana. From this conviction and sentence he appeals. On January 28, 1969, and February 18, 1969, trials of the defendant were held, and in each instance the court declared a mistrial. On February 22, 1969, he was again tried and the jury returned a verdict of guilty of the charge of unlawful sale of marijuana. Defendant contends the court erred in denying his motion for a mistrial based on improper empaneling of the jury. In the course of the trial the court examined the jurors on voir dire. Counsel for defendant made no examination, but when given the opportunity to do so by the court stated, “Your Honor, the defendant passes the panel.” The list of jurors was submitted first to the county attorney who struck ten by exercise of his peremptory challenge. The defendant struck nine. The court then instructed the clerk to “call the first 12 names that are listed on the jury list.” The clerk inadvertently skipped over the name of Marilyn Mae Bahn and called the name of a thirteenth juror, Joseph Burzawa. Rule 228, Rules Crim.Proc., 17 A.R.S., reads as follows: “B. After the jury is full and complete,' the clerk shall make a list thereof and deliver it to the county attorney, who may strike therefrom the state’s number of peremptory challenges or any lesser number. The list shall then be delivered to the defendant, who may strike therefrom the defendant’s number of peremptory challenges or any lesser number. The list shall then be handed to the clerk who shall call the first twelve names remaining on the list, and those persons shall constitute the jury.” It is the contention of defendant that the skipping of Mrs. Bahn and calling of the thirteenth juror was prejudicial error. The court’s attention was not called to this error of the clerk at the time the names were called, and no mention was made of it until the close of the evidence, when some one called the court’s attention to the mistake. The court immediately called the counsel to his chambers and related what had happened. Thereupon defendant’s counsel made a motion for a mistrial, which was denied; then he made a motion for a new trial, after the conviction, in which he stated: “That he is the court-appointed attorney for the defendant herein; that on Monday, April 21, 1969, as counsel for the defendant he ordered and received ‘Jury Service’ which consisted of typed application forms gathered by a Clerk of the Pima County Superior Court on all of the prospective jurors and their experience having sat on other cases. The Jury Service was carefully perused in determining which jurors should be struck by peremptory challenge. Counsel for the defendant formed an opinion that the juror, Mrs. Bahn, because of her husband’s employment as a psychologist, would possibly be a favor [sic] defense juror, and therefore, counsel specifically wanted this juror to be on the trial jury. Through the error committed by the Clerk of the Court, the name of Mrs. Bahn was skipped and another juror substituted in her place. “It is further submitted under oath, that counsel for the defendant did not know of the error by the Clerk until the fact was called to his attention at approximately 1:25 p. m. on the day of trial in the Court’s Chambers.” Counsel for the defendant bases his argument that the skipping of the juror’s name was prejudicial error primarily upon the case of State v. Thompson, 68 Ariz. 386, 206 P.2d 1037, in which the defendant was charged with assault with intent to commit murder. Thirty-two jurors were drawn in the box. They were examined by the court and the counsel. Thereafter, both the county attorney and the defense counsel exercised peremptory challenges. The clerk, in calling the names of the first twelve unchallenged jurors inadvertently called three jurors upon whom the defendant had exercised peremptory challenge. The defense counsel did not realize a mistake had been made until after the trial. The court held: “This grave mistake by the clerk in the impaneling of the jury was properly brought to the atténtion of the lower court by defendant’s motion for a new trial. Conner v. State, 54 Ariz. 68, 92 P.2d 524. The law governing the matter of new trials (section 44-2005, A.C.A. 1939) expressly states that same shall be granted, if the substantial rights of the defendant have been prejudiced, ‘when from any other cause not due to his own fault the defendant has not received a fair and impartial trial.’ “The Constitution of Arizona, article 2, sections 23 and 24, guarantees to every person charged with a criminal offense the right to trial by jury, and this means not only a fair and impartial jury but one lawfully constituted. This is a most substantial right, the birthright of every free man, and a right which is justly dear to the American people. United State [sic] Fidelity & Guaranty Co. v. State, 65 Ariz. 212, 177 P.2d 823. (See cases and texts therein cited.) While it is true that there is no constitutional right to peremptory challenges in this state, it being purely legislative in origin (section 37-120, supra) or granted by rules of criminal procedure having the effect of law (section 44 — 1320, supra), still this is a substantial rather than a mere procedural or technical right and should be fully enforced as an aid in securing an impartial jury. Olympic Realty Co. v. Kamer, 283 Ky. 432, 141 S.W.2d 293. The right of peremptory challenge serves a very useful purpose. It is said in 31 Am.Jur., Jury, section 185: “'* * * There can be no doubt that giving the prosecution a right of peremptory challenge tends to prevent hung juries and mistrials and to lessen the expense of criminal trials. Besides, experience has shown that one of the most effective means to free the jury box from men unfit to be there is the exercise of the peremptory challenge.’ ” The facts are different in the instant case. No juror sat on the panel where a peremptory challenge had been made. In State v. Lovell, 97 Ariz. 269, 399 P.2d 674, we stated: “A peremptory challenge is an arbitrary and capricious species of challenge to a certain number of jurors without showing bias or prejudice, or any cause. State v. Thompson, 68 Ariz. 386, 206 P. 2d 1037. Peremptory challenges are exercised by a party in rejection, and not in selection, of jurors and are not aimed at disqualification but are exercised upon qualified jurors as a matter of favor to the challenger. * * *” This holding reiterated what was said in Thompson, supra, in which we further stated: “* * * Defendant’s statutory right to challenge ten jurymen peremptorily is right of rejection and not of selection. Philbrook v. United States, 8 Cir., 117 F.2d 632, certiorari denied 313 U.S. 577, 61 S.Ct. 1097, 85 L.Ed. 1534; People v. Roxborough, 307 Mich. 575, 12 N.W.2d 466, certiorari denied 323 U.S. 749, 65 S.Ct. 80, 89 L.Ed. 600, rehearing denied 323 U.S. 815, 65 S.Ct. 127, 89 L.Ed. 648. The right to peremptorily challenge jurors is an absolute right, and when this right is lost or impaired, the statutory conditions and terms setting up an authorized jury are not met. Olympic Realty Co. v. Kamer, supra. “We are not unmindful that for many years this court has uniformly adhered to and enforced the rule that a conviction will not be set aside for mere technical errors or defects appearing in the record which do not affect the substantial rights of the accused. This substantial justice provision of the Constitution of Arizona (article 6, section 22) has been frequently invoked as to infractions of the formal rules of law relative to the selection and formation of juries, our decisions being to the effect that a defendant is not entitled to be tried by any particular jury, but merely by one which is fair and impartial. * * *” In State v. Webb, 101 Ariz. 307, 419 P. 2d 91, we said: “* * * We have held that a conviction will not be reversed for error in the selection of a petit jury unless the defendant shows actual prejudice. State v. Narten, 99 Ariz. 116, 407 P.2d 81; State v. Sorrell, 95 Ariz. 220, 388 P.2d 429. In the instant case, defendants have not attempted to show actual prejudice, either on the issue of probable cause or in the competency of the grand jury to transact business. Cf. Abbott v. Superior Court of Pima County, 86 Ariz. 309, 345 P.2d 776. “In regards to the trial court’s action in excusing the lawyer, this court has held that a defendant is not entitled to be tried by a particular juror, Kinsey v. State, 49 Ariz. 201, 65 P.2d 1141, 125 A.L.R. 3, * * * ” The basis for the holding of a violation of substantial rights is the compelling of the individual to accept a juror objectionable to him, it being recognized in Thompson, supra, that the peremptory challenge was a substantial right to reject a juror and not for the purpose of selecting one. There is nothing in the record in the instant case to show that the thirteenth juror was in any way objectionable to the defendant — either from the examination on voir dire or from his counsel’s affidavit which was merely to the effect that he wanted Mrs. Bahnon the jury. This is not enough. As pointed out in Webb, supra, he must show “actual prejudice.” The counsel, even after trial, in the affidavit of motion for ttew trial does not sáy that the thirteenth juror was objectionable to him, nor in his brief on appeal does he say that the thirteenth juror was objectionable. He made no objection when the jury list was called in court to Mr. Burzawa’s sitting on the jury, so the record was void at that time and throughout the trial in regard to any objection to the thirteenth juror, iand at no time was it in any way intimated that he was objectionable to the defense. Even the motion for a mistrial, was "not based upon any objection to the thirteenth juror. It was merely,, that defense counsel thought Mrs. Bahn would have been more favorable to the defendant. All of the rules .of law regarding the formation of a jury are intended to secure a fair and impartial jury, for the trial of a defendant. Flowever, defendant is not entitled to be tried by any particular jury; therefore, unless the record affirmatively shows that such a jury was not secured— even though some formal provisions regulating the manner of selection may have been disregarded-r-the case must be. affirmed. State v. Hilliard, 89 Ariz. 129, 359 P.2d 66; Conner v. State, 54 Ariz. 68, 92 P.2d 524; Kinsey v. State, supra; Lawrence v. State, 29 Ariz. 247, 240 P. 863. We accordingly hold that the defendant has failed to show that he was not tried by a fair and impartial jury, or that the thirteenth juror was objectionable to him, and that the clerk’s calling of his name actually was prejudicial to his rights. Judgment affirmed. STRUCKMEYER, V. C. J., and HAYS, J., concur.

UDALL, Justice: Defendant James John Makal plead guilty to one count of first-degree murder and •was'sentenced to life imprisonment. He appeals from the conviction and sentence. On the evening of May 24, 1964, defendant Makal killed his wife and his two children, ages eight and nine, by strangling them. He then killed the family dog and unsuccessfully attempted to commit suicide by cutting his wrists and throat and swallowing ant poison and furniture polish. After defendant’s arrest and before his trial, defendant was twice committed to the State Hospital as the result of hearings held under Rule 250, Rules of Criminal Procedure, 17 A.R.S., at which the court found that defendant by reason of mental disorder was unable to assist counsel in the defense of the case. Defendant was ultimately found to be mentally competent to stand trial and was tried on three counts of homicide. As a defense he claimed to be not guilty by reason of insanity. The jury found him guilty on each of the three counts and recommended the death penalty. Judgment and sentence of death were duly imposed. Defendant appealed the conviction and sentence to this Court. We reversed and remanded for a new trial, 104 Ariz. 476, 455 P.2d 450 (1969), because of reversible error committed at the trial. Prior to the date set for the new trial, the trial court held a Rule 250 hearing. Based on the testimony of the two doctors who had examined the defendant, the trial court ruled that defendant Makal was able to understand the proceedings against him and was able to assist in his own defense. Several days thereafter but before the date set for trial, defendant entered into a plea bargain wherein the charge was dropped from three counts of first-degree murder to one count of first-degree murder. Defendant plead guilty and was sentenced to. life imprisonment. The arguments made by defendant on-appeal can be summarized as follows: 1. Void Guilty Plea. Defendant’s guilty plea and sentence are void, as the defendant was insane at the time of the commission of the offense and was also incompetent to plead guilty. 2. Credit for Time Served. Defendant should be given credit against his present sentence for time already served in the county jail, the state prison, and the state hospital. I. VOID GUILTY PLEA Defendant contends that his guilty plea was void because this Court, in reversing his earlier jury conviction, allegedly had found him to be insane at the time of the commission of the homicides. As the basis for this contention, defendant refers to the comment by this Court that : “But here by any standard the proof is nearly overwhelming that Makal was insane at the time of the commission of the homicides.” 104 Ariz. 476 at 478, 455 P.2d 450 at 452. This comment has been used out of context by defendant; when placed in its true context the meaning it conveys is not that which defendant wishes to attach to it. The true context can perhaps best be shown by referring to the portion of the opinion from which the above quotation was extracted. In that opinion, our basis for reversing the conviction related to undersirable conduct by the prosecuting attorney in his opening and closing arguments to the jury and in his questioning of one of the expert medical witnesses. The trust of these arguments and questions was that defendant Makal was dangerous to other people and could eventually be released if committed to a mental institution, and that he should therefore be found guilty without regard to the issue of insanity. As we stated in the opinion, this conduct by the prosecution constituted reversible error, as the only real issue to be decided by the jury was whether Makal was sane at the time of the commission of the offense. As we further pointed out, the disposition of an insane defendant by society is determined by the laws of the state as enacted by the legislature; with that disposition the jury has neither concern nor responsibility. With reference to the questions asked and arguments made by the prosecutor, we stated that: “Every jurisdiction which has passed upon a similar argument has held that it is erroneous misconduct on the part of the prosecuting attorney. [Citing cases.] There are some decisions which while recognising the rule have affirmed convictions where either the trial court took prompt action to eradicate the effect of the argument, i. e. Bachelor v. State, 216 Ala. 356, 113 So. 67, or found that the argument was harmless because of the overwhelming proof of the sanity of the defendant i. e. State v. McDonald, 184 S.C. 290, 192 S.E. 365; Mott v. State, 94 Okl.Cr. 145, 232 P.2d 166. But here by any standard the proof is nearly overwhelming that Makal was insane at the time of the commission of the homicides.” [Emphasis added.] 104 Ariz. 476 at 478, 455 P.2d 450 at 452. Taken in its proper context, then, we see that the comment regarding Makal’s sanity was intended only as an observation as to the weight of the evidence presented at the trial and not as a finding of fact. In other words, the evidence presented at the trial was such that there was a reasonable probability that the jury might have found Makal to be insane had it not been for the questions asked and arguments made by the prosecutor regarding the danger to society if Makal were found not guilty. Hence, we were of the opinion that the prosecutor’s conduct constituted reversible error and accordingly ordered a new trial. From the above, it is clear that the observation by this Court as to defendant’s sanity was not a finding of fact; rather, it was merely an observation as to the weight of the testimony given at trial as to defendant’s sanity. As such, it was not binding on the court or jury in any subsequent proceeding. The next argument made by counsel for the defendant regarding insanity is that defendant Makal was incompetent to enter into a plea bargain and that the judgment and sentence resulting therefrom are void. As we stated earlier in this opinion, prior to the date set for the new trial the trial court held a Rule 250 hearing and found that Makal was able to understand the proceedings against him and was able to assist in his own defense. Several days later, the defendant entered a plea of guilty to one count of first degree murder and was thereafter sentenced to life imprisonment. Makal could have chosen to be retried before a jury on three counts of murder, but decided instead to plead guilty to the lesser charge. The trial judge who received the guilty plea was careful and thorough in her questioning of the defendant in order to determine that his guilty plea was entered into knowingly and voluntarily. We find no merit in the argument by defendant’s counsel that defendant was incompetent to plead guilty. The trial court was eminently correct in accepting the guilty plea. II. CREDIT FOR TIME SERVED Defendant contends that he should be given credit against his present sentence for time already spent in jail, in prison, and in the state hospital. On October 16, 1969, the trial court imposed a life sentence, with the sentence to begin on that date. Defendant requested the court to modify its order so the sentence would begin as of the date of arrest, some 51/2 years earlier, as defendant had been in confinement in the county jail, the state prison, and the state hospital since that time. The trial judge denied this request by the defendant and stated that she had considered the previous confinement of the defendant in reaching her decision to set the date on which the life sentence was to begin as the date of sentencing rather than the date of arrest. On appeal, defendant argues that this action by the trial court resulted in the imposition of punishment in excess of that allowed by statute, in violation of the double jeopardy clause of the Fifth Amendment. As authority for this proposition he cites Simpson v. Rice (sub. nom. North Carolina v. Pearce), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and State v. Johnson, 105 Ariz. 21, 458 P.2d 955 (1969). These two cases set forth the requirement, under the double jeopardy clause, that punishment already exacted must be fully credited in imposing sentence upon a new conviction for the same offense. As was stated in Simpson v. Rice, supra: “We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned — by subtracting them from whatever new sentence is imposed.” [Emphasis added.] 395 U.S. at 718-719, 89 S.Ct. at 2077, 23 L.Ed.2d at 665-666. To illustrate the type of case in which the above holding would apply, the Supreme Court set up a hypothetical case involving the imposition of a maximum sentence after reconviction: "Suppose, for example, in a jurisdiction where the maximum allowable sentence ' for larceny is 10 years’ imprisonment, a man succeeds in getting his larceny conviction set aside after serving three years in prison. If, upon reconviction, he is given a 10-year sentence, then, quite clearly, he will have received multiple punishments for the same offense. For he will have been compelled to serve separate prison terms of three years and 10 years, although the maximum single punishment for the offense is 10 years’ imprisonment.” 395 U.S. at 718, 89 S.Ct. at 2077, 23 L.Ed.2d at 665. It is apparent that the requirement set forth in Simpson v. Rice, supra, has no application in the present case, as defendant Makal was sentenced to life imprisonment. It is obviously impossible to determine precisely how long the defendant will live, and there is, therefore, no term of years from which the time already served can be subtracted. Where a sentence of life imprisonment is involved, then, it is clearly impossible to impose punishment in excess of that allowed by statute. We therefore conclude that defendant’s contention that he was subjected to double j eopardy is of no merit. As to the related question of whether the sentence was properly imposed: Under A.R.S. § 13-453, there are only two alternatives upon a conviction for first-degree murder — death or life imprisonment. This is true whether the conviction follows a jury trial or is the result of a plea bargain. If the conviction results from a jury trial, the jury must decide between death and life imprisonment; if from a guilty plea, the court must so decide. State v. Boggs, 103 Ariz. 328, 441 P.2d 778 (1968). In determining which punishment to impose, the trial court may consider circumstances in either mitigation or aggravation of punishment. State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966). In this case the trial court, after careful consideration of circumstances in mitigation of punishment, sentenced defendant Makal to life imprisonment rather than death. Under A.R.S. § 13-1652, the term of the sentence commences to run on the date of actual delivery of defendant at the place of imprisonment, or from the time fixed, by the court at the time of the sentence. Rule 338, Rules of Criminal Procedure, provides that the sentence imposing imprisonment shall state the date at which the imprisonment is to begin. The setting of that date is within the sound discretion of the trial court. State v. Kennedy, 106 Ariz. 190, 472 P.2d 59 (1970). In the present case, the trial judge stated that she had considered the previous confinement of the defendant in reaching her decision to set the date on which the life sentence was to begin as the date of sentencing rather then the date of arrest some 5y2 years before. We are of the opinion that the trial court was properly within its discretion in so acting. From the above we have concluded that defendant’s guilty plea was valid and his sentence was properly imposed. Judgment affirmed. STRUCKMEYER, C. J., HAYS, V. C. J., and LOCKWOOD and CAMERON, JJ., concur.

WREN, Chief Judge. Petitioner has brought this special action to challenge an award entered by the Industrial Commission which granted his petition for rearrangement or readjustment of compensation and increased his permanent partial disability benefits. He contends that the increase was inadequate and not supported by the evidence, since the respondent employer and respondent carrier failed to show that employment was available to petitioner in certain named occupations in direct competition with able-bodied applicants. On September 25,1975, petitioner injured his back while employed as a dairy products mixer-operator by respondent employer. His workmen’s compensation claim was accepted for benefits by the carrier. On October 14, 1977, the Commission, following various proceedings, ultimately entered an award finding that petitioner had sustained a 15% general physical functional disability and had suffered a 17.05% reduction in earning capacity, entitling him to the sum of $78.40 per month. On May 17, 1979, petitioner filed a petition for rearrange ment or readjustment. The petition was denied and a request for hearing followed. At the hearing, held on November 29, 1979, petitioner, his attending orthopedic surgeon, a psychiatrist, an employment expert and three lay witnesses testified. On December 20, 1979, the hearing judge granted the petition, determining that petitioner had a 22.29% reduction in earning capacity, and awarding him an increase in permanent partial disability benefits from $78.40 per month to $102.48. This figure was based on a “rolled back” wage of $649.50 as an “electronic sub-assembler” or “cable connector assembler.” Petitioner thereafter filed this appeal. In the prior award of October, 1977, the hearing judge had determined that the petitioner, because of the restrictions placed upon him by his attending physician, Ray Fife, M.D. could not lift over ten pounds, could not perform tasks requiring any continuous lifting or bending, could not walk a distance in excess of one-half mile, could not stand for more than one-half hour, could not sit for more than three hours and needed to change positions frequently. Petitioner was, however, found capable of continuing to perform the work of mixer-operator in a lighter trade than he had performed prior to his accident. This finding was premised upon the testimony of Frederick E. Brick, a vocational expert, who stated that employment was then available for petitioner as a mixer-operator at several different companies which Brick named. Following the 1977 award petitioner testified that he continued his efforts to seek employment by contacting the prospective employers indicated by Brick, but that he was unsuccessful. As a result of his inability to obtain work, he filed the petition for rearrangement under review here. In the November 1979 hearing Brick again testified for the respondents. On this occasion, however, he expressed the opinion that petitioner could no longer perform the job mixer-operator since the companies in that business had increased their lifting requirements. However, he opined that petitioner would be able to perform adequately in three types of occupations: (1) electrical mechanical assembler (2) cable connector assembler, and (3) electric sub-assembler, indicating that he had in fact contacted various firms which he identified, and inquired as to whether they would hire someone with the physical limitations of petitioner and the specific restrictions which Dr. Fife had placed upon him. These firms, according to Brick, had responded that they would. Petitioner argues, however, that this proof was inadequate to establish reasonable employment opportunities, Employers Mutual Liability Insurance Company of Wisconsin v. Industrial Commission, 25 Ariz.App. 117, 541 P.2d 580 (1975), in that it did not include evidence that petitioner could secure such employment notwithstanding competition from able-bodied persons. Dean v. Industrial Commission, 113 Ariz. 285, 551 P.2d 554 (1976). Petitioner further argues that the hearing judge erred in the following ruling on the issue of competition: Q. Isn’t it true that you did not ask this individual at Talley Industrial that if he had an applicant with the disabilities or restrictions such as with a ten-pound lifting restriction, and if he also had an applicant for the same job who had no disability, that he would equally hire the man with the disabilities as the man without the disabilities; isn’t that true? You didn’t ask that? A. No. Q. Isn’t it true that you didn’t ask that question to any of the persons you talked with? MR. MARKS: I would object on the grounds that is legally irrelevant. The Dean case states that one of the things that has to be considered in an LEC case is whether a prospective employer will hire someone with the type of impairment that’s involved in the case. It does not state that it must be established that the company would hire that individual in preference to any other type of individual. MR. VAN BAALEN: I said “equally.” What the Dean case is is in a competitive situation with a fully able-bodied man; that he would just as readily hire the disabled man as a fully able-bodied man. That is exactly what the Dean case says and other cases. MR. MARKS: I think the Hearing Officer can read the case for herself. THE HEARING OFFICER: I’ll sustain the objection. R.T. November 29,1979 at pages 133-134. Quoting from Davis v. Industrial Commission, 82 Ariz. 173, 309 P.2d 793 (1957), our Supreme Court stated in Dean v. Industrial Commission, supra, the general proposition that: “[t]he object is to determine as near as possible whether in a competitive labor market the subject in his injured condition can probably sell his services and for how much. To support a finding in this respect the commission must have evidence that will at least demonstrate the reasonableness of the determination made.” id. 113 Ariz. at 287, 551 P.2d at 556. Then, with reference to the facts before it, Dean noted: The evidence fails to show that petitioner would be successful in obtaining a pest control position. Material evidence to show, with reasonable certainty, that a claimant could secure a position would include, but is not limited to, the competition for available positions, Hughes v. Industrial Commission, 3 Ariz.App. 51, 411 P.2d 474 (1966), and the likelihood that employers will hire someone with a previous disability although he is now fully qualified to perform the work. Without any evidence in this regard, the Commission’s finding is unreasonable, id. This language, petitioner contends, makes it incumbent upon the respondents to show that petitioner would be able to secure employment in a fully competitive market with non-disabled applicants for the same job; that respondents must prove that the prospective employers which they contacted would “just as readily hire the disabled man as a fully able bodied man.” We disagree and hold that the objection was properly sustained. We do not find the phraseology “competitive labor market”, used by the court in Dean, to mean the carrier or employer must show that, in “head-to-head” competition with non-disabled persons for a specific job, the handicapped applicant would have a fully equal opportunity to be hired. There need only be evidence, as noted in Dean, of “the likelihood that employers will hire someone with a previous disability although he is now fully qualified to perform the work.” 113 Ariz. at 287, 551 P.2d at 556. That case simply held that the evidence there failed to show that the claimant would be successful, as contended by the carrier, in obtaining a pest control position, i. e. that the duties of the job were commensurate with his limited educational and technical training, and with the physical restrictions resulting from his injuries. Furthermore, the record before us reflects that the employment opportunities alluded to by Brick were reasonably available to petitioner in competition with other job seekers. As examples [respondents’ attorney] Q. In this particular case, did you inquire of the various firms that you contacted whether they would hire someone with the general impairment that Mr. Wells has and with the specific limitations of lifting, sitting, walking and et cetera that Doctor Fife gave him? A. Yes, I did. R. T. November 29, 1979 at page 110 ****** Q. In talking to Mr. Shahlin, did you describe the impairments and limitations that Doctor Fife outlined for Mr. Wells? Did you ask whether Talley Industries would hire somebody with his limitations? A. Yes, I did. Q. What was the answer? A. The answer is they would. They have on occasion, let me put it that way. id. at pages 112-113 ****** Q. How many openings were there at Talley Industries let’s say in the last preceding 12-month period? A. I have from January 1 of this year. The previous openings, there were 43. id. at page 108 ****** Q. In the course of your contacts with these people, did you ascertain whether or not Western Electric Cable Works would employ people who had suffered an industrial injury and had the limitations that Mr. Wells has according to Doctor Fife? ****** THE HEARING OFFICER: Did you specifically mention the applicant? THE WITNESS: Not by name, [petitioner’s attorney]: No. THE WITNESS: But by disability. May I just add that Western Electric and some of the larger corporations now do have a policy of trying to hire more of the handicapped to meet some federal requirements. ****** Q. What is the policy of Western Electric and other similar plants with respect to hiring people with physical impairments? A. I think under the Vocational Rehabilitation Act of 1973, that a number of disabled should be hired, but IRS came out in March of this year with a tax credit for every handicapped person that is hired by a person, and it’s a two-year tax credit I think. Many times larger corporations have found it to their advantage to hire disabled persons purely from a monetary viewpoint more than humanitarian. Q. Did you ascertain whether Western Electric would hire employees with the type of physical impairments and the limitations that Mr. Wells has? A. Yes, they do id. at 116-118. ****** Q. In the case of each of the company officials you have talked to at these three places, did you outline Mr. Wells, the fact that he had an industrial accident and the impairment and limitations as described by the doctor and if such a person would be hired? A. I did so in my phone conversations with them last week, yes. Q. What was their advice? A. Again, they’re in the same area of trying to hire some more disabled people. They would certainly consider it. id. at page 122 In our opinion such evidence fully satisfied the requirements of Dean and constituted substantial evidence to support the award. Respondents met their burden of proof that there existed work within petitioner’s limitations and that openings for such work were reasonably available to him. As stated in Germany v. Industrial Commission, 20 Ariz.App. 576, 514 P.2d 747 (1973): The contention that the carrier must present evidence that there is open and waiting a job for this particular workman, taking into consideration not only his industrially-related physical condition, education, occupational history, the type of work he is able to perform and such related factors, but also such intangibles as his personal appearance, his motivations for work, his temperament and personality, is rejected. If petitioner’s contention were followed to its logical conclusion, the carrier would be forced to become an employment agent — having available a specific employer ready, willing and able to hire this specific employee. Such a result is not required by our statutes or case law. ****** If the carrier presents evidence that there is employment reasonably available which the claimant could reasonably be expected to perform, considering his physical capabilities, education and training, we hold that the carrier has met its burden of showing an earning capacity. id. at 580, 514 P.2d at 751. The award is affirmed. O’CONNOR and FROEB, JJ., concur.

GORDON, Justice: In a petition filed November 9, 1979, the juvenile in this case was charged with having sexually abused another minor in violation of A.R.S. §§ 13-1404, 13-701, and 13-703. After an evidentiary hearing before a juvenile court referee on February 8 and 15, 1980, pursuant to A.R.S. § 8-231, the referee made a finding “that it has not been proved beyond a reasonable doubt that the offense was committed.” The state filed a timely appeal pursuant to A.R.S. §§ 8-231.01 and 8-231.02. On April 1, 1980, following a review of the record, including a transcript of the evidentiary hearing pursuant to A.R.S. § 8-231.-02(A), Juvenile Judge Lillian Fisher reversed the referee’s factual determination and found “beyond a reasonable doubt that the minor committed the acts as alleged in the petition.” Judge Fisher thereupon adjudicated the juvenile to be a delinquent minor. The Court of Appeals, 129 Ariz. 383, 631 P.2d 538, reversed and remanded, agreeing with the juvenile “that his adjudication as a delinquent minor was the result of a violation of his constitutional right to due process, because the court made its determination on the basis of a ‘cold’ transcript, rejecting the recommendation of a juvenile court referee who had heard the testimony.” We accepted the state’s petition for review pursuant to A.R.S. § 12-120.24 and Rule 28, 17A A.R.S., Juvenile Court Rules of Procedure. The opinion of the Court of Appeals is vacated. The order of the Juvenile Court adjudging the juvenile in this case to be a delinquent minor is reversed. The case is remanded to the Juvenile Court for proceedings not inconsistent with this opinion. A.R.S. § 8-231 provides that juvenile judges can direct that hearings be conducted at the first instance by referees, who then transmit written findings and recommendations for disposition to the judge of the juvenile court. A.R.S. § 8-231.01 grants any party to a juvenile hearing the right to appeal from the recommendation of the referee. If a transcript was prepared of the proceedings before the referee, A.R.S. § 8-231.02(A) states that the appeal “shall be on the record of the proceedings.” Trial de novo is to be granted if no transcript of proceedings was maintained or if the juvenile judge so orders after an evaluation of the sufficiency and condition of the record. Finally, A.R.S. § 8-231.02(B) directs that “fajfter trial de novo or a review of the record, the juvenile judge shall enter a final order of the juvenile court.” The juvenile in this case was adjudicated to be a delinquent under the above process on the basis of a transcript of the proceedings before a referee contrary to that referee’s finding that the juvenile had not committed a delinquent act. The record before us indicates that a factual finding as to whether the alleged delinquent act actually occurred depends heavily on an assessment of the credibility of two witnesses at the hearing before the referee: the juvenile and the alleged victim, also a minor. The referee, after having personally heard the witnesses testify and having observed their demeanor while on the witness stand, found that the state had not fulfilled its burden of proving beyond a reasonable doubt that a delinquent act had been committed. Yet the juvenile judge, without having observed the witnesses testify and without giving reasons therefor, reversed the referee’s factual finding on the basis of the transcript and adjudged the juvenile to be a delinquent. The juvenile claims that this procedure violates “basic due process and fundamental fairness * * * because of Judge Fisher’s failure to hear the evidence as fact finder before her adjudication of guilt was made.” As the Court of Appeals noted, the Supreme Court of the United States came close to answering this argument in United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980), which addressed an analogous procedure in the federal court system. In that case, pursuant to the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), a district court judge referred a motion to suppress an involuntary confession to a federal magistrate, who conducted an evidentiary hearing and made proposed findings of fact and recommendations for disposition. Without conducting a hearing on its own to personally hear certain controverted testimony, the district court accepted the recommendation of the magistrate and denied the motion to suppress. The Supreme Court held that the district court’s acceptance of the magistrate’s findings on contested credibility issues without personally hearing the live testimony was consistent with the Due Process Clause of the Fifth Amendment of the United States Constitution. An analysis of the reasoning in Raddatz persuades us that that Court would come to a different conclusion on the facts of this case where the juvenile judge rejected the referee’s finding as to the ultimate question whether a delinquent act was committed. Initially noting that Mullane v. Central Hanover Bank & Trust Co. held that the guarantees of due process call for a “hearing appropriate to the nature of the case,” 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950), the Raddatz Court articulated two tests to evaluate the sufficiency of due process in the procedure before it. The first was “whether the nature of the issues presented and the interests implicated * * require that the * * * judge must actually hear the challenged testimony.” 447 U.S. at 677, 100 S.Ct. at 2413, 65 L.Ed.2d at 434. We think there are important differences between the issues presented and the interests implicated at a hearing on a motion to suppress a confession as involuntary on the one hand, and a hearing to determine whether a juvenile committed a delinquent act on the other. With regard to the nature of the issues presented, the Court in Raddatz pointed out that the purpose of the motion to suppress decided by the magistrate was to decide the voluntariness of a confession, not the ultimate question of the guilt or innocence of the defendant. In comparison, the precise purpose of the hearing in the case before us was to decide the ultimate question whether the juvenile had violated a criminal statute. See A.R.S. § 8-201(7) and (8). The referee’s finding was “that it ha[d] not been proved beyond a reasonable doubt that the offense was committed.” Turning to the interests implicated in the two procedures, we note that the Supreme Court has stated that “[a] proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty * * * is comparable in seriousness to a felony prosecution.” In re Gault, 387 U.S. 1, 36, 87 S.Ct. 1428, 1448, 18 L.Ed.2d 527, 551 (1967). We believe the interests implicated in an evidentiary hearing to adjudicate the delinquency of a juvenile are deserving of more protection than those implicated in an evidentiary hearing on a motion to suppress an involuntary confession. This is reflected by the fact that while an adjudication of delinquency requires proof beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), a preponderance of the evidence is sufficient to prove a confession voluntary. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). The second test which the Court mentioned in Raddatz was a three-prong test from Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), which focused on the following factors in deciding whether an administrative procedure was constitutionally sufficient: (1) the private interest affected by the procedure, (2) the risk of an erroneous deprivation of that interest through the procedure and the probable value of other procedural safeguards and (3) the Government’s interest. 424 U.S. at 334-35, 96 S.Ct. at 903, 47 L.Ed.2d at 33. As Justice Marshall pointed out in his dissent to Raddatz, the majority opinion seemed not to apply the Mathews test in analyzing the constitutional sufficiency of the procedure before it. A recent Fifth Circuit opinion, however, used this three-prong standard to distinguish a situation similar to the one at bar from Raddatz. Louis v. Blackburn, 630 F.2d 1105 (5th Cir. 1980). In Louis, the Fifth Circuit held that a district court in a procedural posture similar to that in Raddatz which rejected instead of accepting the credibility determinations of the magistrate violated due process unless the district court judge first heard the disputed testimony and observed the witnesses himself. In reversing the district court, the Court noted that in the case before it, the first and third factors of the Mathews test were identical to those in Raddatz. With regard to the second factor, the Fifth Circuit stated that an additional hearing before the district court judge “would do little, if anything, to further protect the defendant’s interests” where the judge agreed with the magistrate’s credibility findings. On the other hand, the Court felt that where a district court rejects a magistrate’s credibility determinations, “[ajnother hearing would significantly increase the protection of the rights of the petitioner. If the district judge doubts the credibility determination of the magistrate, only by hearing the testimony himself does he have an adequate basis on which to base his decision.” 630 F.2d at 1110. This distinction between acceptance and rejection of a magistrate’s findings is in harmony with an observation made by the Supreme Court in a footnote to the Raddatz opinion: “7. Neither the statute nor its legislative history reveals any specific consideration of the situation where a district judge after reviewing the record in the process of making a de novo ‘determination’ has doubts concerning the credibility findings of the magistrate. The issue is not before us, but we assume it is unlikely that a district judge would reject a magistrate’s proposed findings on credibility when those findings are dispositive and substitute the judge’s own appraisal; to do so without seeing and hearing the witness or witnesses whose credibility is in question could well give rise to serious questions which we do not reach.” 447 U.S. at 681, 100 S.Ct. at 2415, 65 L.Ed.2d at 436. The Supreme Court concluded in Raddatz “that the process due at a suppression hearing may be less demanding and elaborate than the protections accorded the defendant at the trial itself.” 447 U.S. at 679, 100 S.Ct. at 2414, 65 L.Ed.2d at 435. The same may be said of a juvenile delinquency hearing, as the Fourteenth Amendment of the United States Constitution does not require that such a hearing conform with all the requirements of a criminal trial. Winship, supra. However, Gault, supra, established that the Fourteenth Amendment does require application of the essentials of due process and fair treatment during a hearing adjudicating delinquency. In determining which essentials of due process and fair treatment are required in delinquency adjudications, the emphasis is on encouraging accurate fact-finding. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). As the Supreme Court observed in Speiser v. Randall, 357 U.S. 513, 520, 78 S.Ct. 1332, 1339, 2 L.Ed.2d 1460, 1469 (1958), “[t]o experienced lawyers it is commonplace that the outcome of a lawsuit — and hence the vindication of legal rights — depends more often on how the fact-finder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents.” The deference which appellate courts accord the trier of fact, whether judge or jury, to make determinations based on assessments of the credibility of witnesses is elementary. See, e. g., Builders Supply Corp. v. Shipley, 86 Ariz. 153, 341 P.2d 940 (1959); Gillespie Land & Irrigation Co. v. Jones, 63 Ariz. 535, 164 P.2d 456 (1945). As the Fifth Circuit observed in Louis, supra, “One of the most important principles in our judicial system is the deference given to the finder of fact who hears the live testimony of witnesses because of his opportunity to judge the credibility of those witnesses.” 630 F.2d at 1109. We believe that personal observation of witnesses is crucial to accurate fact-finding when the outcome of a juvenile delinquency adjudication depends on an assessment of the credibility of the witnesses. Accordingly, we hold that the reversal by Judge Fisher of the referee’s factual finding that the juvenile in this case had not committed a delinquent act violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution because, in reversing that finding, Judge Fisher necessarily rejected the referee’s credibility assessments without having personally heard the disputed testimony and without giving valid reasons to support such a rejection. Judge Fisher stated in the minute entry containing the delinquency adjudication that she was “persuaded in this matter by” Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978). Swisher rejected a double jeopardy challenge to a juvenile delinquency adjudication procedure analogous to ours. As Justice Marshall pointed out in his dissent, however, the majority opinion did not address the due process problems inherent in such a procedure. Justice Marshall explained, “As the majority accurately states, the only issue raised in the complaints or focused upon in the parties’ briefs was that of double jeopardy. It is argued by amicus, however, that the Maryland system * * * violates the Due Process Clause by permitting ultimate factfinding by a judge who did not actually conduct the trial. The Court does riot reach this issue, apparently believing that it is not properly presented here.” 438 U.S. at 229, 98 S.Ct. at 2713, 57 L.Ed.2d at 723-24. We therefore reverse the order of the juvenile court adjudicating the minor in this case to be delinquent and remand for proceedings not inconsistent with this opinion. The opinion of the Court of Appeals is vacated. STRUCKMEYER, C. J., HOLOHAN, V. C. J., and HAYS and CAMERON, JJ., concur. . We do not address an analogous procedure for appeal of criminal actions from justice or police court to superior court prescribed in A.R.S. § 22-374, except to note that in that situation only the defendant has the right to appeal. A.R.S. § 22-371.

OPINION WREN, Chief Judge. The sole issue in this appeal is whether the death of the husband, following the trial court’s oral order of dissolution in a divorce action, deprived the court of jurisdiction to enter a signed formal judgment nunc pro tunc. The trial court found that it lacked jurisdiction. We reverse. On May 3, 1978, Clarence Edward Allen, Jr., filed a petition for dissolution of his marriage to Naomi Louise Allen. This matter was heard on stipulation of the parties as an uncontested dissolution of marriage proceeding on November 29, 1978. The minute entry for that day reflects the court’s findings and orders dissolving the marriage, denying spousal maintenance, and distributing property. The minute entry also contains the court’s order that Gary B. Larson, the attorney for Naomi Allen, prepare a formal written judgment consistent with the court orders and submit it to petitioner’s attorney, Robert A. Chard, for approval as to form prior to presentation to the court for signature. Mr. Chard received a copy of the formal decree from Mr. Larson on December 18, 1978. On the following day, Mr. Chard sent a copy of the decree to his client. However, Mr. Allen and his fiancee, Candyce D. Hertz had already left for the City of Flagstaff on December 18, 1978 to cut a Christmas tree. On December 24, 1978, both Allen and Ms. Hertz were found dead, having apparently frozen to death. After approving the form of the judgment, Mr. Chard presented the formal judgment to the court for signature and entry. The trial court ruled declining to sign the decree on January 15,1979, and on March 1, 1979 the case was ordered dismissed without leave to reinstate. In response to petitioner’s motion to vacate the order of dismissal and motion for rehearing, the court again denied the motion on the basis that there was no authority for the court to sign and file the decree because of the death of Mr. Allen. The effect of the death of a party to a divorce action has been the subject of substantial litigation. Most jurisdictions have adopted the position that since death terminates the marital status upon which to base a divorce decree, the action necessarily terminates. See generally, Annot“Effect of death of party to divorce or annulment suit before final decree”, 158 A.L.R. 1205. However, jurisdictions have reached different conclusions with respect to the propriety of entering a final decree nunc pro tunc where the party’s death has occurred after the court has made final orders but before these orders are entered as a formal judgment. Compare, e. g., Tiedman v. Tiedman, 400 Mich. 571, 255 N.W.2d 632 (1977) with Austin v. Austin, 553 S.W.2d 9 (Tex.Civ. App.1977). Arizona courts have not dealt with this precise issue, but there are two relevant provisions in the Arizona Revised Statutes. 16 A.R.S. Rules of Civil Procedure, rule 54(e) provides: Judgment may be entered after the death of a party upon a verdict or decision upon an issue of fact rendered in his lifetime. Additionally judgments nunc pro tune are provided for in 16 A.R.S. Rules of Civil Procedure, rule 58(a), which states in part: All judgments shall be in writing and signed by a judge or a court commissioner duly authorized to do so. The filing with the clerk of the judgment constitutes entry of such judgment, and the judgment is not effective before such entry, except that in such circumstances and on such notice as justice may require, the court may direct the entry of judgment nunc pro tunc, and the reasons for such direction shall be entered of record. That portion of rule 58(a) providing for entry of judgment nunc pro tunc was adopted by amendment effective June 1, 1970. The state bar committee notes following the rule explain the amendment as follows: Black v. Industrial Commissions [sic], 83 Ariz. 121, 317 P.2d 553 (1957) has been viewed by some as prohibiting the entry of an order or judgment nunc pro tunc in Arizona. The purpose of the amendment is to reject the basis for that view and to adopt the rationale of the dissenting opinion of Justice Struckmeyer in that case. In determining the applicability of rules 54(e) and 58(a) to the instant case, it is instructive to review the rationale contained in Justice Struckmeyer’s dissenting opinion. In Black, the majority had ruled that a minute entry reading, “Order for decree of divorce for plaintiff against defendant” did not support entry of a nunc pro tunc decree. In dissent, Justice Struckmeyer stated: I can find no dissent to the proposition that where a judgment has actually been rendered and that rendition is reflected in the record of the court, the judgment may be entered nunc pro tunc if the delay is not occasioned by the party applying, [citations omitted] ... In the instant case, the basis of the order directing the entry of judgment nunc pro tunc is the minute entry of the Clerk of Court dated July 12, 1943. This minute entry was recited in the judgment. No more competent evidence of rendition of judgment can be required. 83 Ariz. at 131-132, 317 P.2d at 560, Following the 1970 amendment to rule 58(a), the Arizona Supreme Court upheld the entry of divorce decrees nunc pro tunc and overruled Black in Estate of Hash v. Henderson, 109 Ariz. 174, 507 P.2d 99 (1973). However, unlike the instant case, in Hash the decrees had been signed by a judge but had not been filed. The opinion in Hash expresses no concern with whether judgments had in fact been rendered; nor does it discuss the applicability of rule 54(e) to the decrees in question. In our opinion, the resolution of this appeal depends upon whether the record demonstrates that there has been a “verdict or decision upon an issue of fact rendered in [appellant’s] lifetime”, rule 54(e), so as to give the superior court jurisdiction to exercise its discretion whether to enter a judgment nunc pro tunc. There is a substantial body of law pointing out the distinction between the rendition of judgment and the entry or filing of judgment. In Arizona this distinction has been described as follows: The rendition of a judgment is the act of the court in pronouncing its judgment, and differs from the entry or filing of the judgment in that the former act is the declaration of the court from the bench announcing its decision, while the entry is the act of the clerk in writing it upon the records of the court.... rendition is generally, if not always, an oral act by the court from the bench, ... American Surety Co. v. Mosher, 48 Ariz. 552, 561-562, 64 P.2d 1025, 1029 (1936). See also Kinnison v. Superior Court, 46 Ariz. 133, 46 P.2d 1087 (1935); Moulton v. Smith, 23 Ariz. 319, 203 P. 562 (1922). In Fridena v. Maricopa County, 18 Ariz. App. 527, 504 P.2d 58 (1972), this court held that the proper method of showing the time of the rendition of the judgment is the minute entry which reflects the oral rendition. A minute entry was also held to be a rendition of judgment in Staffco, Inc. v. Maricopa County Trading Company, 122 Ariz. 353, 595 P.2d 31 (1979). The record before this court contains a minute entry judgment of November 29, 1978. In reviewing this minute entry we are guided by the common law principle that in order to constitute a rendition of judgment, the pronouncement must demonstrate a present intent to judge, and constitute an adjudication of the matter. See 6A Moore’s Federal Practice, ¶ 58.02 at 58-53 (2d Ed. 1979). Reviewing the minute entry with this principle in mind, we note that it makes findings of fact and contains definite orders that are not contingent upon any prospective occurrence. Although the transcript of the hearing on appellant’s motion to vacate order of dismissal and motion for reconsideration indicates that the court had cautioned the parties that they were not divorced until entry of judgment, we do not regard this as making the rendition of judgment conditional. Rather, the court was properly instructing the parties of the effective date of judgment. “[T]he effective date of the judgment has no bearing on the question on whether there has been in fact an adjudication of the controversy, a judgment pronounced.” Black v. Industrial Commission, supra, 83 Ariz. at 130, 317 P.2d at 559. Our conclusion that the minute entry was not conditioned upon a future event is supported by the comments of the court at the hearing: MR. CHARD: * * * We are in the same position with the Court. We certainly take the position the Court could have entered this decree before his death, had the decree been prepared earlier. THE COURT: Had it been prepared and presented to the Court, approved as to form, it would have been signed the same day it was presented to the Court.... R.T., April 17,1979 page 4. We therefore believe that a rendition of judgment occurred on November 29, 1978 and that, pursuant to rules 54(e) and 58(a), the trial court had jurisdiction to enter judgment nunc pro tunc following the death of Clarence Edward Allen, Jr. Although not controlling in this matter, we note that several jurisdictions have upheld the entry of divorce decrees nunc pro tunc based upon the determination that pri- or minute entries or oral pronouncements of the court constitute a rendition of judgment. See Parker v. Parker, 128 N.J.Super. 230, 319 A.2d 750 (1974); Jayson v. Jayson, 54 A.D.2d 687, 387 N.Y.S.2d 274 (1976); Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969); Austin v. Austin, supra; Becker v. King, 307 So.2d 855 (Fla.App.1975). But compare Tiedman v. Tiedman, supra. We do not decide whether the trial court should enter judgment nunc pro tunc in this matter but only that the court has jurisdiction to do so pursuant to rules 54(e) and 58(a). The state bar committee notes to rule 58(a) provide, The amendment does not specify the conditions, circumstances and effects involving the entry of a judgment or order nunc pro tunc. These are best determined by reference to the considerable body of law on the subject. This statement in conjunction with the committee’s intent to incorporate the rationale contained in Justice Struckmeyer’s dissenting opinion in Black, indicate one of the factors to be considered by the trial court in exercising its discretion is whether delay has been occasioned by the party applying for entry of the judgment. The judgment is reversed and remanded for proceedings consistent with this opinion. O’CONNOR, P. J., and JACOBSON, J., concur. . This issue was addressed in Black v. Industrial Commission, 83 Ariz. 121, 317 P.2d 553 (1957). However for reasons subsequently discussed in this opinion, we do not believe Black is controlling on this point. . A summary of many of these authorities is contained in Justice Struckmeyer’s dissenting opinion in Black, 83 Ariz. at 128-130, 317 P.2d at 557-559.

OPINION BIRDSALL, Judge. This appeal arises from a judgment on a petition for determination of title to property filed in the estate of Herminia 0. Johnson, deceased. The trial court determined the two parcels remained as assets of the decedent’s estate. We disagree. The facts are not really in dispute. On November 29, 1978, Mrs. Johnson executed a warranty deed to the two parcels, one being a single family rental house and the second a lot with a mobile home permanently situated thereon which was Mrs. Johnson’s residence. The deed was delivered to appellant, decedent’s only child, two days after its preparation. It was held by her and recorded on January 29, 1979, two days after her mother’s death. At the time of delivery of the deed, Mrs. Johnson told appellant she wanted her to have the property. The daughter did not record the deed because she wanted the rental property to be sold so her mother could have the money from the sale. Appellant was married and did not want to “tie up” the title to the property by bringing her husband into it. After the deed had been delivered, the mother listed the rental property for sale with a broker and that listing still existed at the time of her death. However, appellant made all the arrangements for this listing. The mother told other witnesses that she had given the properties to appellant. The property was not sold. It was rented after the delivery of the deed and the mother retained the rental proceeds. She also continued to occupy the other property as her home until her death. As issues the appellant states: 1) Did the trial court err when it applied the principles of gift law to determine the validity of a transfer of real property by deed? 2) Did the trial court err when it held the warranty deed null and void with no legal effect and ordered title to the properties in the decedent’s estate? The trial court held that the transfer of the two properties by deed was an attempted gift, stating that the issue was whether a valid gift inter vivos was completed. It further found that while Mrs. Johnson may have had the intent to make a gift to appellant she did not have a clear and present intent to divest herself of full possession and control of the property before her death. The uncontradicted evidence does not support this finding. So far as Mrs. Johnson is concerned it is clear that she had a present intent to make a gift to her daughter when the deed was delivered. Although not recorded at that time, the deed was accepted by appellant. True, appellant then attempted to get the property sold in her mother’s name so that Mrs. Johnson could have the proceeds, but this did not defeat the gift. This was not an exercise of control by the donor but rather an exercise of control by the grantee. The fact that the mother continued to occupy her home and to receive the rents from the rental property were likewise not acts of control by Mrs. Johnson. We interpret these acts as evidence of appellant’s acquiescence in the continued use of the properties by her mother. Appellant, in effect, gave her mother the benefits which would inure to one who retains a life estate in the properties. The trial court cited and apparently relied on language in O’Hair v. O’Hair, 109 Ariz. 236, 508 P.2d 66 (1973) that the essential elements of an inter vivos gift are that the donor, before death, manifest a clear intent to give to the party claiming as donee full possession and control of the property. This was a joint bank account case and, therefore, readily distinguished. This rule does not apply in this case. The donor who makes a gift of real property may retain possession of that property for life and the retention of such a life estate does not defeat the gift: Schornick v. Schorniek, 25 Ariz. 563, 220 P. 397 (1923). Thus even if the intention of the decedent was that the conveyance should not take effect until after her death, the deed would still be valid. See A.R.S. § 33-221(C); See also Annot. 31 A.L.R.2d 532 (1953); Allred v. Allred, 57 Ariz. 77, 111 P.2d 68 (1941); Schornick v. Schornick, supra. We reverse and remand with directions to enter judgment decreeing that appellant has title to both properties. HATHAWAY, C.J., and HOWARD, J., concur. . “An estate of freehold or inheritance may be made to commence in the future by deed or conveyance in like manner as by will.”

ORDERED: Petition for Review = DENIED. FURTHER ORDERED: The Court of Appeals’ Opinion shall not be published, pursuant to Rule 111(g), Arizona Rules of the Supreme Court.

HAYS, Justice. Edward and Earl Padilla were charged with assault with intent to commit rape and kidnapping. The trial judge directed a verdict for Earl on the first charge but the jury found him guilty of kidnapping. Edward was convicted of both crimes. From their convictions they have appealed. The facts adduced at trial indicate that on April 19, 1968, at approximately 12:30 a. m., Debra, age IS, left her home following an argument between her parents. At the same time, the appellants and Harry Armstrong were preparing to leave a bar where they had been drinking and playing pool for several hours. As Debra walked past the bar, a man leaving the bar said something to her. She ignored him and continued on her way. As she became aware of a shadow of a person behind her, Edward Padilla touched her on the shoulder. Scared, she hit him and tried to run. Edward threw his arm around her neck and a struggle ensued. Meanwhile, Armstrong had left the bar and was approaching his car, a two door sedan. Earl Padilla, who was already seated in the car, told him to hurry because his brother, Edward, was in trouble. Armstrong drove the car to the area where the struggle was taking place and Earl, who was riding in the front passenger seat, got out of the car, pulled his backrest forward and helped Edward force the victim into the back seat. Edward got in the back seat and Earl returned to the front passenger seat. Armstrong, realizing what was happening, got out of the driver’s seat, pulled his backrest forward, pulled Debra out of the car and told her to run. Debra ran until she met some policemen who thereupon arrested Edward and Earl Padilla. Harry Armstrong was not charged. Armstrong testified that when he drove up to the spot where Edward Padilla was struggling to hold Debra, who was screaming he heard Edward say: “Shut up, I’ll kill you.” After the defendants shoved the victim into the back seat of his car, he ordered them to release her. However, Edward continued to restrain her with his arm around her neck. After Armstrong pulled the victim free, Edward got out of the car, grabbed Armstrong by his shirt and said: “You shouldn’t cross me, man, I was going to seduce that girl.” Edward then threatened to kill Armstrong but he was able to break loose and flee. Jacqueline Murphy,’a manager of the bar, testified that earlier in the evening Earl Padilla told her: “I love you, I love you.” She told him that he apparently had her confused with someone else but he said: “No, I love you.” “I’m going to get you.” The appellants first contend that the admission into evidence of their statements went against the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and that the trial court therefore erred in denying their motions for severance. In Bruton, a postal inspector testified that Evans, Bruton’s co-defendant who did not take the stand, orally confessed that he and Bruton committed the crime charged. The confession was secured during the interrogation of Evans by the inspector. Although the jury was instructed to disregard the confession with respect to Bruton because as to him it was hearsay, the U. S. Supreme Court reversed Bruton’s conviction because the introduction of such statements, where the declarant failed to testify, denied Bruton his right to confront a witness against him. Unlike Bruton, the statements in this case were not formal confessions nor were they made to or in the presence of a government agent. The words were uttered before, during and immediately after the crimes charged and neither defendant said anything which directly inferred any wrongdoing by his co-defendant. Although the statements of each defendant clearly referred only to the mental processes of the declarant, the court instructed the jury that the statements of one could not be considered against the other. Further, it is doubtful that the statements of Edward Padilla, “Shut up, I’ll kill you” and “You shouldn’t cross me, man, I was going to seduce that girl,” could have operated to the prejudice of Earl Padilla since the trial judge acquitted him of the charge of as sault with intent to commit rape before the jury retired. Although Earl was convicted of kidnapping, the possibility that Edward’s statements had a material bearing, if any, on the jury’s determination of that charge is remote. Earl’s statements, “I love you, I love you” and “I’m going to get you” could not have affected Edward’s case and there was no prejudice resulting therefrom. The rule of Bruton, supra, did not require the suppression of the statements of either defendant and the motions for severance were properly denied. The appellants next argue that the evidence is insufficient to sustain their convictions for kidnapping because the evidence indicates that their victim was moved only a few feet between the time she was attacked to the time she managed to escape. However, the evidence is plainly sufficient to reasonably support the conclusion that both appellants exercised force to shove their unwilling victim into Armstrong’s car and that she was restrained in the car until Armstrong could free her. In State v. Jacobs, 93 Ariz. 336, 380 P.2d 998 (1963), we held that it is the fact of forcible removal and not the distance involved that establishes the crime of kidnapping. Jacobs cited with approval the holding of the California Supreme Court in People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001 (1952). Although Chessman has been recently overruled by People v. Daniels, Cal., 80 Cal.Rptr. 897, 459 P.2d 225 (1969), we adhere to the view that the holding in Chessman was correct. Thus, Jacobs continues to be the law of Arizona and since the facts clearly support a kidnapping conviction within the rule of that case, we find no error here. Appellant Earl Padilla makes the point that since the trial court directed a verdict of acquittal of the charge of assault with intent to commit rape, the court was thereby bound to direct a verdict of acquittal of the kidnapping because a kidnapping always includes an assault. We find this argument to be without merit. The acquittal of assault with intent to commit rape, a crime requiring proof of specific intent, does not necessarily mean that the evidence was insufficient for the jury to find an act of assault with general intent. The evidence was clearly sufficient to support a finding that Earl Padilla assaulted the victim. Appellant Edward Padilla contends that the trial court erred by admitting his incriminating statements into evidence before independent evidence- established the corpus delicti of assault with intent to commit rape. The victim testified that at approximately 12:30 a. m., Edward Padilla, a stranger to her, approached her from behind and touched her shoulder. When she hit him and tried to escape, he threw his arm around her neck and held her against her will although she made every effort to break his grip. When Armstrong’s car appeared, Earl Padilla got out and helped Edward shove her into the back seat. Edward got in the back seat with her and continued to restrain her by physical force although she continued to struggle violently. Armstrong had to literally “pull” her out of the vehicle. The victim further testified that she was screaming hysterically throughout the entire episode. Considering the time these events took place, the fact that Edward Padilla was a stranger to the victim and all of the other circumstances of this testimony, it appears obvious that the corpus delicti of the crime charged here was established by sufficient evidence before the jury was permitted to consider the incriminating statements. The testimony of the victim, fully corroborated by Armstrong, is sufficient to warrant a reasonable inference that this victim was assaulted for the purpose of rape. It is finally contended that Edward Padilla was denied effective assistance of counsel because his attorney was faced with a conflict of interest. Appellant makes the point that his attorney could not argue that appellant’s brother, Earl, who made an admission, may have been guilty but that appellant was innocent or that a mistake in identification had been made be cause his brother was his identical twin and it was his brother who was guilty, because his counsel would thereby be implicating his other client. While this is true, we are of the opinion that if the appellants had separate attorneys, each of whom pursued this line of argument, the jury would not have been influenced thereby. The statement made by Earl clearly referred only to his own state of mind and cannot be considered as damaging to Edward against whom overwhelming evidence had already been presented. Armstrong, who knew both appellants and who was with them for several hours up to the time of the offenses, positively identified Edward Padilla as the brother who first attacked the victim on the street and Earl as the one who helped Edward shove her into the back seat of his car. The appellant has failed to make a showing sufficient to convince this court that a conflict of interest existed by virtue of which his cause was prejudiced. State v. Pickard, 105 Ariz. 219, 462 P.2d 87 (1969). The judgments of the trial court are affirmed. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and McFARLAND, JJ., concur.

STRUCKMEYER, Vice Chief Justice. This is an appeal from a judgment entered on a jury’s verdict in favor of appellee in a case in which appellant sought damages for injuries received in a fall while leaving appellee’s store. The Court of Appeals, 12 Ariz.App. 339, 470 P.2d 487 (1970), with one Judge dissenting, reversed and remanded for a new trial. Opinion of the Court of Appeals vacated. Appellee’s store is located on the west side of Main Street in Yuma, Arizona, fronting in an easterly direction. It has two entrances, one on the north and one on the south of the front of the store. On November 8, 1967, the appellant Martha Prophet entered the store through its south entranceway for the express purpose of buying shoes to replace the ones she was wearing. Failing to find a pair she liked, she left the store through the entrance on the north, walking, as she testified, “maybe a little swiftly.” Just after appellant passed through the door, she slipped and fell, sustaining severe injuries to her left leg. Appellant testified on direct examination that she had only fallen once before while wearing the shoes she had on at the time she fell; that the prior fall occurred under dissimilar circumstances since it involved jumping a flower-bed from a cement surface to a cement surface; and that the prior fall was caused by her narrow dress which knocked her legs out from under her. The appellant’s shoes were placed in evidence. They were of a type commonly known as “flats,” made of a very soft imitation leather with a low heel of hard plastic. Appellee’s store sells an almost identical shoe. Appellant complains of the sufficiency of the evidence to sustain the submission of an instruction to the jury by the lower court on contributory negligence. We have said the test of negligence is whether in the light of existing dangers one is exercising ordinary care for his own safety, Bryant v. Thunderbird Academy, 103 Ariz. 247, 439 P.2d 818. We have also said that if the evidence was such that reasonable men might differ as to whether an act was performed while exercising ordinary care the decision was for the trier of facts, Campbell v. English, 56 Ariz. 549, 110 P.2d 219. The question here is whether the facts of this case reasonably present a question of whether the appellant was exercising ordinary care for her own safety at the time of the accident. As to this question, three witnesses testified to certain statements made by the appellant immediately after her fall. One witness testified: “Q Did you overhear Mrs. Prophet making any statements at that time, did she say anything ? A Yes. While we were trying to make her comfortable for the arrival of the ambulance, I asked her if she wanted a drink of water and she said yes. I got her a drink of water. And she said, ‘Oh, honey, don’t worry, I will be all right. I have fallen in these shoes before.’ And she told her companion to take these shoes and throw them just as far as she can throw them.” Another testified “Q Can you tell me what, if anything, she said about her shoes? “A She said that she had fallen with those shoes. She showed me a bruise or a scratch on the other leg, knee or leg, where she had fallen before. It was scabbed over. “Q What did she say specifically, if you can recall, about her shoes? “A She just said these shoes, T have fallen with these shoes before; I should have thrown them away, and I should have got some new ones.’ And she said that is why she had come to the store, to get new shoes. “Q Who was she talking to then ? “A To everyone around. We were all standing there close, not directly, I don’t think her answers were to anyone in particular.” A third testified: “Q. Okay. Can you tell us what was said by Mrs. Prophet ? A Some — they started to pick her up and put her on the stretcher. And there was some woman who I don’t know it was started to pull her shoes off. And she said, ‘Throw those darn things away, this is the second time they have made me fall.’ ” The general rule is that statements either oral or written made by or attributable to a party to an action which tend to establish or disprove any material fact in the case constitute admission against interest and are competent evidence in the action. Deike v. Great Atlantic and Pacific Tea Co., 3 Ariz.App. 430, 415 P.2d 145; Pope v. Pope, 102 Cal.App.2d 353, 227 P.2d 867; Casey v. Burns, 7 Ill.App.2d 316, 129 N.E.2d 440; Hallett v. Rimer, 329 Mass. 61, 106 N.E.2d 427; Lowen v. Pates, 219 Minn. 566, 18 N.W.2d 455; Dorn v. Sturges, 157 Neb. 491, 59 N.W.2d 751; Harrison v. State, 19 Misc.2d 578, 197 N.Y.S.2d 662. When shortly after the accident the appellant said that she had fallen before with these shoes and should have thrown them away and should have got some new ones, she made statements against interest. Her admissions could have been taken by the jury as establishing why she fell. They, together with the type of shoes she was wearing, were sufficient to present the issue of contributory negligence. Vollstedt v. Vista-St. Clair, Inc., 227 Or. 199, 361 P.2d 657. Appellant further complains that it was error to fail to strike certain testi mony which compared the slipperiness of the tile in front of appellee’s store with tile in front of another store. The testimony was to the effect that the comparison showed that the results of rubbing the appellant’s shoes upon the tile in front of both stores was about the same. A comparison of the tile in front of appellee’s store with the tile in front of another store showing that they were about the same in slipperiness does not appear to have any material significance to any issue in the case. But we do not think the failure to strike the testimony was prejudicial error; rather, we believe it was inconsequential. Judgment affirmed. LOCKWOOD, C. J., and UDALL, McFARLAND and HAYS, JJ., concur.

LOCKWOOD, Chief Justice: Defendant was charged with murder. He pleaded not guilty and not guilty by reason of insanity, and was given a bifurcated trial under A.R.S. § 13-1621.01. A jury found him guilty of second degree murder and found that he was sane at the time of the crime. He was sentenced to not less than twenty-five and not more than thirty years in prison. On appeal his attorney stated in his brief that he was unable to find any reversible error and that the brief was being filed in accordance with the rule of Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396. The issues raised in his brief were whether the verdict is supported by sufficient evidence and whether certain testimony was erroneously excluded. After his brief was filed in the Court, we decided State v. Shaw, 106 Ariz. 103, 471 P.2d 715 in which we invalidated the bifurcated trial provided for in A.R.S. § 13-1621.01. Defendant then filed a supplemental brief requesting reversal on the grounds set out in Shaw, supra. Since Shaw, however, we held in State ex rel. Berger v. Superior Court, 106 Ariz. 365, 476 P.2d 666 (1970), that: “Shaw is not retroactive and applies only to cases commenced after the date of the decision.” It is clear, therefore, that Shaw does not apply to the instant case in which the trial was held more than a year before the Shaw decision. Defendant contends that the trial court erred in refusing to allow an optometrist to show to the jury, by means of a projector, just how blurred defendant’s vision was at the time of the crime (because he had lost his glasses before the shooting). The projector was demonstrated before the judge in the absence of the jury, and threw upon a screen a picture, the light for which was first passed through a lens exactly the opposite from that in defendant’s glasses. The judge ruled that the inability of the projector to show how the scene would have looked with both eyes at the same time, and the inability to adjust the lighting conditions in the courtroom to approximate those at the scene of the crime, would make the experiment confusing to the jury. He therefore refused to permit the use of the projector before the jury. Defendant cites Moon v. State, 22 Ariz. 418, 198 P. 288 and State v. Polan, 78 Ariz. 253, 278 P.2d 432 for the proposition that in-court experiments are permissible. Both of those cases, however, hold (1) that the conditions under which such an experiment is performed must be somewhat comparable to those of the time and place of the crime, and (2) that the permitting of such experiments in court rests largely in the discretion of the trial judge whose ruling will not be disturbed except when such discretion is “manifestly abused.” We cannot say the court abused its discretion here. Nothing appears in the record as to how much defendant’s vision was blurred, except that testimony showed that defendant’s vision without glasses was 20/30. Although the judge ruled that the optometrist might testify to such facts, defense counsel chose not to use any such expert testimony. Defense counsel argues that “he could not see who was in the line of fire and therefore could not have deliberately pointed his gun or fired at Irl William Smith.” The evidence indicated that defendant fired through a closed door, so we are at a loss to understand how evidence of poor vision would help his case. The crime could still be murder even though he were blindfolded. Lastly, defendant argues that the evidence does not support the verdict. After a guilty verdict, on appeal this Court wiil view the evidence in a light most favorable to the state. State v. Davis, 104 Ariz. 142, 449 P.2d 607. The facts are as follows: Defendant drinks considerably and has an uncontrollable temper. As a result he has been in many fights. On the night in question he was drinking and playing pool at the Birdcage Tavern in Casa Grande. He got into a fight with three men who beat and kicked him and broke his glasses. The fight was broken up by other patrons, and the female bartender ordered him out. He left. The men with whom he had been fighting, followed him outside were the fight was resumed. When it was learned by the combatants that the police were on the way the fight again broke up. Irl William Smith, one of the combatants re-entered the bar. Defendant followed him to the door and said that he would kill Smith. To the lady bartender, he said: “I’ll get you too.” Another patron tried to return his broken glasses and was rewarded for his efforts by defendant’s biting the patron’s fingers. Defendant told that patron that he “was going to get everyone one at a time.” Defendant then left the tavern, returned to his lodgings, and strapped on a belt and holster containing a -44 revolver. After about forty-five minutes he returned to the tavern, and kicked open the front door, and said to Smith: “Are you looking for me, you little son of a bitch?” Smith and another customer managed to push the door shut. Defendant then fired three shots through the door, one of which killed Smith. The door then opened, and defendant said “I got you, you little S.O.B.” He then ran away from the tavern and was not apprehended until the next morning. The sole defense was that defendant did not remember much about what happened. He took the stand in his own defense in the insanity part of his trial only, at which time he admitted having been convicted of several felonies. He also admitted remembering “standing there shooting the gun through the door.” Affirmed. STRUCKMEYER, V. C. J., and UDALL, McFARLAND and HAYS, JJ., concur.

HAYS, Justice. The appellant was sentenced to not less than 20 nor more than 30 years on a charge of robbery. This sentence was to run concurrently with another sentence which he was serving. Originally appellant was charged with “robbery while armed with a gun,” and after the information was amended to “robbery” he entered a plea of guilty to the amended information. The only issue raised by the appellant in this appeal is a contention that the sentence is excessive. With this position we do not agree. Appellant directs our attention to A.R.S. § 13-1717, subsec. B which empowers us to reduce a sentence if “the punishment imposed is greater than under the circumstances of the case ought to be inflicted.” He also points out the fact that the defendant is only twenty-two years of age. Other facts must also be noted however. The appellant was on parole from the Arizona State Prison when the robbery was committed. Although the information was amended the trial court could appropriately give consideration to the fact that the appellant was armed with a gun when he committed the robbery. It was for the trial court to evaluate the degree of appellant’s repentance when he confessed to eight other robberies. The record reflects that the sentence was not imposed in haste, for the date of sentencing was continued six days at the request of the Probation Department. Our statement in State v. Caron, 105 Ariz. 122, 460 P.2d 176, 177 (1969) is dis-positive of the issue here: “Where a sentence is within the permissible statutory limits, it will not be modified or reduced on appeal unless it clearly appears excessive under the circumstances. State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969) ; State v. Bible, 104 Ariz. 346, 452 P.2d 700 (1969); State v. Fierro, 101 Ariz. 118, 416 P.2d 551 (1966).” Judgment of conviction and sentence affirmed. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and McFARLAND, JJ., concur.

STRUCKMEYER, Vice Chief Justice. This is an original petition by W. W. Jarvis and others, requesting that respondents, the City of Tucson and the State Land Department, show cause why an injunction heretofore issued under the original jurisdiction of this Court, Constitution of Arizona, Article VI, § 5, A.R.S., should not be strictly enforced. The petition is a continuation of the dispute Jarvis v. State Land Department, City of Tucson, 104 Ariz. 527, 456 P.2d 385, wherein petitioners, who cultivate 33,000 acres of land in the AvraAltar Valleys within the Maraña Critical Ground Water Area by means of irrigation wells, invoked the original jurisdiction of this Court to obtain an injunction against the City and the State Land Department. Prior to 1969, Tucson drilled six wells in the Avra Valley for the purpose of pumping and transporting water to its customers both within and without the City, a distance in excess of fifteen miles. Our injunction directed the State Land Commissioner to cancel rights of way across State lands for transportation of the waters from the AvraAltar Valleys to Tucson or elsewhere. In our written decision we said that upon application to this Court accompanied by such circumstances as would permit the legal pumping and transportation of ground water, our injunction would be modified or dissolved as the facts warranted. Petitioners in the present action now assert that the City of Tucson, although not transporting water to Tucson proper, has continued to pump water from its wells and has conducted water to areas both within and without the Maraña Critical Ground Water Area in violation of the Court’s injunction. Tucson acknowledges that it is pumping water from its wells and is delivering water to an installation known as Ryan Field within the Maraña Critical Ground Water Area and to certain residences outside the Maraña Critical Ground Water Area but within the Avra-Altar Valleys’ drainage area. Several questions which it is believed pertinent have been propounded by petitioners in order that there be a final disposition of the dispute between the parties. In this Court’s second decision in Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173 (1953), the doctrine of prior appropriation of ground waters was rejected and the doctrine of reasonable use was adopted. In our first decision in this case we pointed out that in Bristor it was alleged that the plaintiffs had been the owners since 1916 of certain wells from which they had supplied themselves with water for domestic purposes. In 1949 the defendant sank a number of large irrigation wells which by their operation sucked the ground water from under the plaintiffs’ lands, thereby destroying plaintiffs’ supply for their wells. Defendant transported the water a distance of three miles where he developed agricultural lands not theretofore irrigated. We held in Bristor, which holding was repeated in our first decision here, that this was not a reasonable use of ground waters. In our first decision here, we also held that the American rule of reasonable use permitted percolating water to be extracted for the beneficial use of the land from which it was drawn. We emphasized this aspect of the doctrine of reasonable use by requoting from Bristor that part of the decision in Rothrauff v. Sinking Spring Water Co., 339 Pa. 129, 14 A.2d 87, to the effect that the modem decisions are nearly harmonious in holding that a property owner may not convey waters off the lands from which they are pumped if the wells of another are thereby damaged or impaired. This limitation on the use of ground waters has the overwhelming support of American precedent. Percolating waters may not be used off the lands from which they are pumped if thereby others whose lands overlie the common supply are injured. See Midway Irrigation Co. v. Snake Creek Mining & Tunnel Co., 271 F. 157 (CCA 8th, 1921), aff’d, 260 U.S. 596, 43 S.Ct. 215, 67 L.Ed. 423 (1922); Katz v. Walkinshaw, 141 Cal. 116, 70 P. 663 (1902), on rehearing, 74 P. 766 (1903); Cohen v. La Canada Land & Water Co., 151 Cal. 680, 91 P. 584 (1907); Burr v. Maclay Rancho Water Co., 154 Cal. 428, 98 P. 260 (1908); City of San Bernardino v. City of Riverside, 186 Cal. 7, 198 P. 784 (1921); Koch v. Wick, 87 So.2d 47 (Fla.1956); cf. Willis v. City of Perry, 92 Iowa 297, 60 N.W. 727 (1894); cf. Barclay v. Abraham, 121 Iowa 619, 96 N.W. 1080 (1903); Schenk v. City of Ann Arbor, 196 Mich. 75, 163 N.W. 109 (1917); Bernard v. City of St. Louis, 220 Mich. 159, 189 N.W. 891 (1922); cf. Stillwater Water Co. v. Farmer, 89 Minn. 58, 93 N.W. 907 (1903), and 99 Minn. 119, 108 N.W. 824 (1906); Erickson v. Crookston Waterworks, Power & Light Co., 100 Minn. 481, 111 N.W. 391 (1907); Meeker v. City of East Orange, 77 N.J.L. 623, 74 A. 379 (1909); Crane v. Borough of Essex Fells, 67 N.J.Super. 83, 169 A.2d 845 (1961), aff’d, 36 N.J. 544, 178 A.2d 196 (1962); Smith v. City of Brooklyn, 18 App.Div. 340, 46 N.Y.S. 141; 54 N.E. 787 (1897); Westphal v. City of New York, 34 Misc. 684, 70 N.Y.S. 1021 (1901), aff’d, 75 App.Div. 252, 78 N.Y.S. 56, aff’d, 177 N.Y. 140, 69 N.E. 369 (1901), rearg. den. 177 N.Y. 570, 69 N.E. 1133; Forbell v. City of New York, 164 N.Y. 522, 58 N.E. 644 (1900); Dinger v. City of New York, 101 App.Div. 202, 92 N.Y.S. 1120, aff’g. 42 Misc. 319, 86 N.Y.S. 577 (1903), aff’d 182 N.Y. 542, 75 N.E. 1129 (1905); Hathorn v. Natural Carbonic Gas Co., 194 N.Y. 326, 87 N.E. 504 (1909); Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482 (1924); Volkmann v. City of Crosby, 120 N.W.2d 18 (N.D.1963); Canada v. City of Shawnee, 179 Okl. 53, 64 P.2d 694 (1937); City of Enid v. Crow, 316 P.2d 834 (Okl.1957); cf. Ross Common Water Co. v. Blue Mountain Consol. W. Co., 228 Pa. 235, 77 A. 446 (1910); Horne v. Utah Oil Refining Co., 59 Utah 279, 202 P. 815 (1921); Glover v. Utah Oil Refining Co., 62 Utah 174, 218 P. 955 (1923). Such waters can only be used in connection with the land from which they are taken. See Sloss-Sheffield Steel & Iron Co. v. Wilkes, 231 Ala. 511, 165 So. 764 (1936), reaff’d on sub. app., 236 Ala. 173, 181 So. 276 (1938); Sycamore Coal Co. v. Stanley, 292 Ky. 168, 166 S.W.2d 293 (1942); Finley v. Teeter Stone, Inc., 251 Md. 428, 248 A.2d 106 (1968); Smith v. City of Brooklyn, 18 App.Div. 340, 46 N.Y.S. 141, 54 N.E. 787 (1897); State ex rel. Ericksen v. McLean, 62 N.M. 264, 308 P.2d 983 (1957); Bayer v. Nello L. Teer Co., 256 N.C. 509, 124 S.E.2d 552 (1962); Volkmann v. City of Crosby, 120 N.W.2d 18 (N.D.1963); Canada v. City of Shawnee, 179 Okl. 53, 64 P.2d 694 (1937); Rothrauff v. Sinking Spring Water Co., 339 Pa. 129, 14 A.2d 87 (1940); Silver King Consol. Mining Co. v. Sutton, 85 Utah 297, 39 P.2d 682 (1934) ; Evans v. City of Seattle, 182 Wash. 450, 47 P.2d 984 (1935). Tucson questions whether it may pump water from its wells and transport the water so pumped through its pipelines to lands which lie within the watershed but outside the Maraña Critical Ground Water Area. From what has been said concerning the American rule of reasonable use, the answer to Tucson’s question is, of course, that it may not. “There is no apparent reason for saying that, because defendant is a municipal corporation, seeking water for the inhabitants of the city, it may therefore do what a private owner of the land may not do. The city is a private owner of this land, and the furnishing of water to its inhabitants is its private business. It is imperative that the people of the city have water; it is not imperative that they secure it at the expense of those owning lands adjoining lands owned by the city.” Schenk v. City of Ann Arbor, 196 Mich. 75, 163 N.W. 109, at 114 (1917). We also pointed out in our first decision in this case that the Avra-Altar Valleys are a part of a critical water area, being included within the Maraña Critical Ground Water Area. For the reason that a critical ground water area is a ground water basin or subdivision “not having sufficient ground water to provide a reasonably safe supply for irrigation of the cultivated lands in the basin at the then current rates of withdrawal,” we held that additional users would necessarily deplete the supply of the existing users. Consequently, the conveyance of ground waters off the lands on which wells in the Avra Valley are located impairs the supply of the other land owners within the critical area. Tucson argues that since by statute A.R.S. § 45-301 et seq. only new irrigation or drainage wells in critical areas having a capacity of more than 100 gallons per minute are prohibited, the Legislature must have intended to permit pumping for municipal purposes without restriction. But the illegality of the use of ground water is not dependent upon whether the Legislature has not forbidden the sinking of wells as a source of supply to be used for municipalities. The right to exhaust the common supply by transporting water for use off the lands from which they are pumped is a rule of law controlled by the doctrine of reasonable use and protected by the constitution of the state as a right in property. Tucson questions whether on equitable principles it should be prohibited from delivering water to Ryan Field. Ryan Field is an airfield which we understand has existed at least as long as petitioners have engaged in agriculture. Its lands overlie the Avra-Altar water basin and geographically it lies within the Maraña Critical Ground Water Area so as to entitle it to withdraw water from the common supply for all purposes except agriculture. Tucson should not be prohibited from delivering water to Ryan Field for lawful purposes since the Ryan Field supply is from the common basin over which it lies and from which it could legally withdraw water by sinking its own wells for domestic purposes. Tucson’s delivery of water to purchasers within the Avra-Altar drainage area but outside the Maraña Critical Ground Water Area is, however, without equitable sanction. There is no indication in the record that these customers of Tucson overlie the water basin so as to come within the principle applicable to Ryan Field. Until Tucson can establish that its customers outside the Maraña Critical Ground Water Area but within the Avra-Altar Valleys’ drainage areas overlie the water basin so as to be entitled to withdraw water from it, there are no equities which will relieve it of the injunction heretofore issued. Finally, petitioners request this Court to determine whether Tucson by acquiring lands in cultivation in the Avra-Altar Valleys may remove the ground water used upon those lands to other areas contrary to the doctrine of reasonable use. The State Land Department joins petitioners in requesting that the first Jarvis decision be augmented by clarifying the rights of the parties in this respect. Tucson also asks the Court to pass upon a like question although in somewhat a different form. Amici Curiae, however, oppose the request of the parties that the Court expand on the legal rights in question. We think, however, that the problem is critical to municipalities in Arizona and so justifies our consideration even though not strictly embraced within the limits of the issues of the original lawsuit. As indicated, Jarvis’ action invoked this Court’s equitable jurisdiction. We issued the injunction but stated that we reserved the right to modify or dissolve upon application accompanied by a showing of circumstances as would permit the legal pumping and transportation of ground water by the City. Our decree was consistent with the almost universal rule that a court of equity when requested will determine all the equities connected with the main subject of the suit and grant all the relief necessary to a complete adjustment of the litigation: “It is a principle of equity that it does justice completely and not by halves. When a bill had been brought in good faith to obtain relief within the jurisdiction of the court, the bill may be retained to do complete justice with reference to the subject matter, even though upon the facts the specific relief prayed for cannot be given, and a bill would not lie for the sole purpose of obtaining the specific relief that is given. Reynolds v. Grow, 265 Mass. 578, 580, 164 N.E. 650; Booras v. Logan, 266 Mass. 172, 175, 164 N.E. 921; Degnan v. Maryland Casualty Co., 271 Mass. 427, 430, 431, 171 N.E. 482; Peerless Unit Ventilation Co., Inc, v. D’Amore Construction Co., 283 Mass. 121, 125, 126, 186 N.E. 280; Geguzis v. Brockton Standard Shoe Co., 291 Mass. 368, 371, 197 N.E. 51; Somerville National Bank v. Hornblower, 293 Mass. 363, 368, 199 N.E. 918, 104 A.L.R. 1107.” Fields v. Othon, 313 Mass. 115, 46 N.E.2d 546, at 547 (1943). It is also frequently stated as a maxim of equity that equity follows the law. By this is meant that equity obeys and conforms to the law’s general rules and policies whether the common law or statute law. See, e. g. Provident Building & Loan Ass’n. v. Pekarek, 52 Ohio App. 492, 3 N.E.2d 983 (1936). By A.R.S. § 45-147 the relative value of uses in appropriable waters has been fixed by the Legislature as first, domestic and municipal uses, and second, irrigation and stock watering. The creation of such a priority clearly evidences a legislative policy that the needs of agriculture give way to the needs of municipalities. Hence, we hold that the decree in this case will be modified if Tucson purchases or acquires the title to lands within the AvraAltar Valleys which are now cultivated and uses the water which would have been used in cultivating such lands as a source of supply for its municipal customers. Tucson may withdraw an amount equal to the annual historical maximum use upon the lands so acquired. The record in this case compels the conclusion that underlying the Avra-Altar Valley floor is a basin of gently percolating waters. It is our decision, therefore, that if Tucson acquires lands within the AvraAltar Valleys overlying the Maraña Critical Ground Water Area it may withdraw water from the basin for municipal uses to the same extent as water previously withdrawn for use on those lands. The water withdrawn may be either from wells on the lands so acquired or from Tucson’s presently existing wells, but in no event may water be withdrawn both for use on the lands and transported off the lands for municipal purposes. Any withdrawals- shall be through water metering devices available for inspection by all parties to this litigation or their agents, and the devices will indicate the current rates of withdrawal together with the quantity of water withdrawn monthly. Tucson will furnish quarterly records of its water withdrawals to the Office of the State Land Commissioner where they will be held available for examination by the public. The injunction heretofore issued will be continued in effect except insofar as it has application to the installation known as Ryan Field. LOCKWOOD, C. J., McFARLAND and HAYS, J., and WILLIAM W. NABOURS, Judge Superior Court, concur. NOTE: The Honorable JESSE A. UDALL, J., having disqualified himself, the Honorable WILLIAM W. NABOURS, Judge of the Superior Court of Yuma County, was called to participate in his stead.

PER CURIAM. This matter comes to us on a petition for special action. The petitioner, plaintiff in a lawsuit in Yuma County, sought to take the deposition of Sam Steiger, member of Congress from the Third Arizona District. A subpoena duces tecum was served on Congressman Steiger, who appeared but refused to answer questions. Thereafter the petitioner, proceeding under Rule 37(a) of the Rules of Civil Procedure, 16 A.R.S., sought an order from Judge Charles L. Hardy of the Maricopa County Superior Court, respondent herein, directing Congressman Steiger to answer the questions propounded to him. On May 8, 1970, Judge Hardy ordered Congressman Steiger to appear on May 26, 1970, and show cause why the requested, order should not be granted. On May 26, 1970, after hearing argument of counsel, the court entered an order which contains the following language: “IT IS ORDERED denying the motion as amended for the reason that the Court is of the opinion that the witness, Sam Steiger, cannot be compelled to appear and testify at the taking of his deposition when he has claimed that he must respect the privilege asserted by the House of Representatives that its members cannot be subpoenaed to appear and testify as a witness while Congress is in session without the permission of the House of Representatives.” Thereafter the petition for special action was presented to this Court. At the conclusion of the hearing before this Court, an order was entered taking jurisdiction of the matter, and directing the respondent judge to enter a Rule 37(a) order compelling the witness to answer the questions propounded. The real party in interest, Congressman Steiger, contends that members of Congress are immune from orders such as a Rule 37 (a) order by reason of the following provision in Art. I, § 6 of the Constitution of the United States: “* * * They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; * * *.” He further asserts that this immunity is rooted in custom, practice and precedent of the House of Representatives which has been recognized by writers on the Constitution and House Rule makers. We do not consider it necessary at this juncture to examine the validity of the claimed immunity, however. Suffice it to say, that if ultimately the petitioner finds occasion to proceed under Rule 37(b) to invoke the contempt powers of the Superior Court the question may well have to be answered. We find no cases which bear directly .on the issue in this matter but we are persuaded by the following language of Long v. Ansell, 293 U.S. 76, 55 S.Ct. 21, 79 L.Ed. 208 (1934), that a Rule 37(a) order is not barred by the alleged congressional immunity : “History confirms the conclusion that the immunity is limited to arrest. See opinion of Mr. Justice Wylie in Merrick v. Giddings [11 D.C. 55]. The cases cited in support of the contrary view rest largely upon doubtful notions as to the historic privileges of members of Parliament before the enactment in 1770 of the statute of 10 George III, c. 50. That act declared that members of Parliament should be subject to civil process, provided that they were not ‘arrested or imprisoned.’ When the Constitution was adopted, arrests in civil suits were still common in America. It is only to such arrests that the provision applies. Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278.” 55 S.Ct. at p. 22. Writ of Mandamus is made peremptory.

CAMERON, Justice. The appellant, Eugene Jessie Davis, by delayed appeal, seeks to have his guilty plea set aside on the ground that the trial court should have, on its own motion, ordered a hearing pursuant to Rule 250 Rules of Criminal Procedure, 17 A.R.S. In the alternative, the appellant seeks a Rule 250 hearing at this time. The facts disclose that the appellant pleaded guilty to armed robbery on 8 May 1969. Nothing in the record at that time indicated that the appellant was under any mental disability. The trial court questioned the defendant extensively concerning the voluntariness of the plea concluding: “THE COURT: Is there anything about the proceedings here you feel you don’t understand, or any questions you wish to ask your attorney? “A. No. "‘THE COURT: Very well. Let the record show the Court will grant the motion of the Public Defender to withdraw the former plea of not guilty and enter a plea of guilty. The Court finds the defendant’s plea of guilty is being made knowingly, voluntarily and intelligently with an understanding of the consequences, and no promise of immunity or threats of any kind have been made to make him change his plea. It is ordered that the Court will accept the plea of guilty and enter it on the record.” Count II, assault with a deadly weapon, was dismissed upon the entry of the guilty plea to Count I. Defendant was on probation for a previous offense, burglary, second degree. Sentencing was set for six days later, on 14 May 1969. On that date, the trial court had before it a presentence report that stated that the appellant was mentally-retarded, but indicated that he was not mentally insane. The presentence report, inter alia, gave the following information. The appellant was then 25 years old, he had completed the eighth grade, he had an I.Q. of about sixty or seventy, he had attended two schools for mentally retarded children for a total period of 2t/z years, and he had previously been a patient at the Arizona State Hospital on three different occasions. The presentence report advised that Dr. Whitney of the Arizona State Hospital was of the opinion that the appellant would not respond to further treatment as a resident patient, and that Dr. Whitney felt that the appellant could be treated as effectively as an outpatient. However, the report added that the appellant’s mother had stated that the appellant would not take any medications as an outpatient. The presentence report expressly stated in several passages that the appellant was mentally retarded, but the report also mentioned that the appellant “does know right from wrong.” The presentence report while recommending that the appellant be denied probation, stated: “It is the opinion of the probation officer that the defendant does not belong in the Arizona State Prison due to his mental deficiencies.” The record does not indicate whether appellant’s attorney had seen the probation report, but the attorney did know something of appellant’s mental background. The appellant’s attorney did not ask the trial court under Rule 333, Rules of Criminal Procedure, 17 A.R.S., to postpone pronouncement of sentence until a sanity hearing was held. Rather, he did ask that the trial court take the appellant’s background and mental condition into consideration. The trial court then sentenced the appellant to the Arizona State Prison for a term of not less than five nor more than 10 years. However, the trial court added the following provision, which gave rise to this appeal: “It is further recommended to the Warden of the Arizona State Penitentiary that- he make every possible effort to incarcerate you in the Arizona State Hospital for treatment.” To date, the appellant is incarcerated in the Arizona State Prison and presumably no attempt has been made to transfer the appellant to the Arizona State Hospital. § 13-1621 A.R.S. reads as follows: "§ 13-1621. Trial, conviction or punishment of persons suffering from mental illness or defect “A person shall not be tried, convicted or punished for a public offense while, as a result of a mental illness or defect, he is unable to understand the proceedings against him or to assist in his own defense.” Appellant’s mental condition could have been asserted or inquired into at three different times in the proceedings herein. First, under Rule 250 of the Rules of Criminal Procedure, 17 A.R.S., if the court has “reasonable ground” to believe the defendant insane or mentally deficient, it shall set a hearing to determine the defendant’s competency. Second, at the time set for sentencing the defendant may allege, under Rules 332 and 333, Rules of Criminal Procedure, 17 A.R.S., that he has become insane since the verdict or judgment and if the court finds there is “reasonable cause to believe that the defendant is insane” the sentencing shall be postponed while two experts appointed by the court make an examination. If found to be insane the defendant shall be committed. The third avenue open to defendant is after he reaches prison. § 31-224 A.R.S. mandates the State to provide facilities when a prisoner manifests symptoms of mental illness. The prison has not acted under § 31-224 A.R.S. and the matter was not raised under Rule 333 of the Rules of Criminal Procedure, 17 A.R.S. The thrust of appellant’s argument is that because of information received at or before the time of sentencing, Rule 250 would apply even though the rule appears to be limited to “before or during trial”. Rule 250, Rules of Criminal Procedure, 17 A.R.S., reads as follows: “Rule 250. Examination of defendant’s mental condition prior to or during trial; proceeding with trial or commitment of defendant to institution “A. If before or during the trial the court has reasonable ground to believe that the defendant, against whom an indictment has been found or information filed, is insane or mentally defective, to the extent that he is unable to understand the proceedings against him or to assist in his defense, the court shall immediately set a time for a hearing to determine the defendant’s mental condition. * * * ” [Emphasis added] We are of the view that Rule 250 does apply to this case. We feel that Rule 250’s reference to “before or during a trial” logically encompasses the sentencing proceeding that occurred six days later and this is true even though there may be some overlapping of the time in which Rule 250 and Rule 333 apply. This Court has previously held that Rule 250 does not preclude a trial court from ordering a hearing on its own motion : “We are convinced that whether a hearing should be held on the issue of defendant’s competency to stand trial should not turn on whether a timely request is made. Our own rule does not preclude the judge from invoking the procedure sua sponte if he has reasonable ground to question defendant’s competency to stand trial. This is true whether it is in reference to an initial sanity hearing or a subsequent hearing after it has been reported that the defendant is competent to stand trial.” State v. Bradley, 102 Ariz. 482, 487, 433 P.2d 273, 278 (1967). This cannot be waived by the defendant: “The State insists that Robinson deliberately waived the defense of his competence to stand trial by failing to demand a sanity hearing as provided by Illinois law. But it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial. See Taylor v. United States, 282 F.2d 16, 23 (C.A.8th Cir. 1960).” Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 841, 15 L.Ed.2d 815, 821 (1966). A reading of the probation report and the action of the court in recommending “to the Warden of the Arizona State Penitentiary that he make every possible effort to incarcerate” appellant “in the Arizona State Hospital for treatment” indicates to us that the court not only had reasonable ground to but did, in fact, question appellant’s competence. The New Mexico Court of Appeals has stated: “At the time defendant entered his plea, his attorney suggested that defendant be given psychiatric and medical care. The trial court, in its judgment, recommended that defendant be given such care. In Praylow v. United States, 298 F.2d 792 (5th Cir. 1962), a similar recommendation by the trial court, accompanied by meager factual allegations, was held sufficient to require a hearing.” State v. Guy, 79 N.M. 128, 131, 440 P.2d 803, 806 (1968). It is possible that the trial court felt that while the appellant was mentally retarded, he was not retarded to such a degree that he was unable to either understand the proceedings against him or to assist in his own defense. We would have no quarrel with this conclusion had it been reached after a proper hearing: “A person may be mentally competent to stand trial although upon other subjects his mind may be unsound. There are many prisoners who, although competent to stand trial, are mentally disturbed or defective and require psychiatric treatment, (citations omitted) “Mental illnesses are of many sorts and have many characteristics. They may differ widely in their effects on a person’s mental processes, his abilities and his behavior. To make a reasonable inference concerning the relationship between an alleged mental condition and the accused’s competence to stand trial, the trier of the facts must be informed with some particularity. Labeling one’s condition as that of insanity without any description of the particular actual manifestations of the alleged disease is insufficient pleading of mental incompetence to stand trial. Insanity in its popular sense signifies an unsoundness of mind, a derangement of the intellect; it may be complete or partial. It can vary from time to time. As such it does not necessarily connote incompetence to stand trial.” Thursby v. State, Me., 223 A.2d 61, 68 (1966). We are unable to conclude from the record that appellant was competent to enter a plea of guilty even though after a proper hearing the trial court may well find that defendant was competent to so plead. It is therefore ordered that this cause be remanded to the Superior Court for a Rule 250 hearing to determine whether the appellant was, at the time he entered his plea of guilty, insane or mentally defective to the extent that he was unable to understand the proceedings against him or to assist in his defense. STRUCKMEYER, C. J., and HAYS, V. C. J., concur.

McFarland, Justice: Vincente C. Mendoza, hereinafter referred to as defendant, was charged and convicted of violation of the narcotics act as set forth in § 36-1002.02, A.R.S., with prior conviction, and sentenced to serve a term of not less than ten years nor more than eleven years in the Arizona State Prison. From his conviction and sentence he appeals. The information charged that the defendant did “ * * * furnish, administer and give a narcotic drug, to-wit: Opium Derivative, to RAY MENDOZA at the Central Hotel, Clifton, County of Greenlee, Arizona, between the hours of 9:00 and 10:00 A.M. on said date.” The defendant went to Clifton, Arizona, from California, in May 1969. His wife, two sons, and a daughter were then living in Greenlee County. Defendant and one of his sons, Ray Mendoza, made a trip to El Paso, Texas, allegedly to Juarez, Mexico, to celebrate the Cinco de Mayo. They returned to Clifton on May 6th. Ray Mendoza lived in an apartment — together with his wife and daughter — in the Central Hotel in Clifton. On the morning of the 8th of May, the defendant went to a drugstore and purchased a needle and an eyedropper, and thereafter went to the apartment of his son, Ray Mendoza. Ray testified that he had gone to bed about one o’clock the night before and that on the morning of the 8th he saw the needle and the eyedropper and the heroin on the sink, when he went to the kitchen, and that he gave himself an injection of heroin. After that he remembered nothing until he woke up in the hospital. Ray was a reluctant witness, and at first denied seeing the defendant that morning, but after the state was permitted to cross-examine him he admitted that he saw his father at the apartment on the morning of May 8th. He admitted that neither he nor his wife brought the heroin to the apartment. He further testified that they did not have any narcotics in their home. Ray also testified that there was no one •else at home during that morning besides him and his wife; that he gave himself an ■overdose of heroin. Vincente C. Mendoza, Jr., went to the apartment that morning, and found Ray unconscious on the floor. Vincente gave Ray mouth-to-mouth resuscitation, but was unable to revive him, so took him to the hospital. Vincente, Jr., testified that the defendant was there at the time he arrived — approximately 10:30 in the morning — that he saw the defendant when he arrived and tried to help. Ray— that he saw the defendant on the floor when he arrived. After he started to help Ray, the defendant assisted him. The defendant contends the evidence was not sufficient to support the verdict of conviction. The question is whether the defendant’s leaving the heroin on the sink was sufficient evidence to prove that defendant furnished, administered, and gave the narcotic drug to Ray Mendoza, as charged in the information. The only evidence that the defendant furnished, administered, or gave the narcotic to his son Ray was circumstantial evidence. In order to sustain a conviction based solely on circumstantial evidence, the evidence must not only be consistent with guilt but inconsistent with every reasonable hypothesis of innocence. State v. Hughes, 102 Ariz. 118, 426 P.2d 386; State v. Alkhowarizmi, 101 Ariz. 514, 421 P.2d 871; State v. Tigue, 95 Ariz. 45, 386 P.2d 402. There is no direct evidence that defend.ant took the narcotics to Ray’s apartment. The only evidence is the inference from the defendant’s purchase of the needle and eyedropper and Ray’s testimony that neither he nor his wife had any narcotics in their home. Ray admitted he had used narcotics. One could also infer that he would know how to get narcotics. Even if ■the defendant took the narcotics to the .apartment it could have been for his own personal use. There is no evidence that defendant called Ray’s attention to the narcotics on the sink, or that he had any conversation with him in regard to the. same. On the contrary, Ray’s testimony was to the effect that he had no conversation with the defendant in regard to the narcotics— that he merely saw it there and used it. We have held that the mere presence of a defendant at the scene of a crime is insufficient to establish guilt. Carroll v. State, 90 Ariz. 411, 368 P.2d 649. While the evidence was reasonably consistent with guilt, we are unable to hold that it was inconsistent with every reasonable hypothesis of innocence. Judgment reversed. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and HAYS, JJ., concur.

McFarland, Justice. This is a petition for review of a decision of the State Court of Appeals, 12 Ariz.App. 348, 470 P.2d 496 which affirmed the judgment of the Maricopa County Superior Court in favor of the Appellee, Four Corners Pipe Line Co., (hereinafter referred to as the Company) and adverse to the appellants and the defendants in the court below (Navajo County, Mohave County, Apache County, Coconino County and Yavapai County, hcrc-naftcr referred to as the State). The Company is the owner of certain property involved in this case which consists of a 16-inch diameter pipe-line originating in the Four Corners area of Arizona and thence crossing the counties involved into the Los Angeles area and which is used primarily for the gathering and transportation of crude oil. The pipe-line was constructed in 1958 at the approximate cost of $45,000,000.00. In 1967 it was valued by the Interstate Commerce Commission for rate making purposes at $35,000,000.00. It has been stipulated by the parties here that the portion of the pipe-line which is in Arizona represents 45.4% of the total system. The sole question involved in this matter is the valuation of the pipe-line by the State Department of Property Evaluation for the purposes of ad valorem taxes. It is contended by the Company that the proper valuation should be $8,141,128.00. On the other hand the State takes the position that ihe valuation made by the Department was properly assessed at $19,799,-985.00. The Company, in accordance with the statutes paid the taxes that were levied against it by the State on behalf of the various counties and then appealed the taxation to the Superior Court. After a lengthy trial, having heard witnesses from both sides, it decided in favor of the Company that the proper assessed valuation was, as claimed by the Company, $8,141,-128.00. From this judgment the State appealed. The Court of Appeals sustained the lower court and it is now before this Court. In the lower court the Company raised the question of the constitutionality of the taxing system, claiming that they were deprived of due process of law in that a valuation, or method of evaluation, was placed upon their property differing from that used for other similar businesses. This has not been an issue in the appellate courts and apparently has been abandoned by the Company on appeal. However, the question of due process as far as taxation of companies, such as railroads and pipe-lines, has recently been answered by this Court in the case of Apache County et al. v. Atchison, Topeka and Santa Fe Railway Company and Southern Pacific Company, decided by this Court on November 13, 1970, 106 Ariz. 356, 476 P.2d 657. Therefore the sole question before this Court is the method of evaluating the pipe-line system, for the purposes of levying taxes by the Department. Under § 42-124.01, A.R.S. the director of the Department is obliged to make an annual assessment of pipe-lines within the state. He is bound to determine in this assessment the full cash value of the pipe-line systems. Section 42-201, subsec. 7, A.R.S. defines full cash value as follows: “Full cash value for property tax purposes is synonymous with market value which means that estimate of value that is derived annually by the use of standard appraisal methods and techniques”. Section 42-147, subsec. B, A.R.S. states that the evaluation approved by the State Board is presumed to be correct and lawful. In the trial court the Company introduced a series of witnesses who testified to a method that the State refers to as “the wasting asset method” which we will develop more fully. On the other hand the State relied upon the Board’s evaluation which was based upon the capitalization of income, using the income of the five years prior to the year of evaluation here in question (1968). Primarily the difference between the two systems is that the State relies on past income to capitalize it and project it into the future; whereas, the Company has used the system of projecting the income based upon the through-put of the number of barrels of oil that will be pumped each day to the Los Angeles market up to the year 1980, and then capitalizing and discounting it to bring it back to the year of taxation. The Company’s contention is that the income will be measurably reduced in the future because of several factors which their experts have taken into consideration; that is the claimed declination in production in the Four Corners area and also because the potential of the market in the Los Angeles area is forecast for a reduction because of off-shore oil production and because of the new discoveries of oil off the coast of Alaska, which it is claimed will now find its way down to the Los Angeles market. They also claim that the Texas-New Mexico pipeline, which originates in the same area (Four Corners) but services the midwest will take more and more of the oil production in that area; and that “local usage”, which they are obliged to serve first in the Arizona area will continue to increase. Based upon this the Company claims that from the pertinent 1968 date, when the evaluation was fixed for the pipe-line system, that the through-put of the Arizona section of the Four Corners pipe-line will decline from 47,000 barrels per day to 5,000 per day in 1980. On these facts the trial court made a specific finding that the reasonable future expectations for throughput of oil, potential gross revenue, operating expenses, income taxes, and the discount factor set forth by the Company were appropriate and properly set forth the method of computing the present value of the pipe-line. It is this formula which the State refers to as the “wasting asset” valuation claiming that at the very least it is speculative in that it uses unknown future income, unknown future tariffs, unknown future production; whereas, on the other hand, the State bases its valuation on known factors of what the pipe-line has produced in the prior five years. Basically, the argument comes down to the argument between experts on whether a proper present valuation is more accurately portrayed by using the past five years or by capitalizing the future possible income over a period of twelve years. Rightly, the State points out that the method being used by the Company has been employed for quite some years by mining companies, whether it be for solid minerals or, for what is known as “fugitive” type of minerals such as oil. But this method when used for the calculation of the valuation of a field, whether it be a mine or an oil field, can be boxed in and a determination made with some accuracy by experts as to the total projected production be it in barrels or tons of whatever mineral will come out of the field. The State claims that this cannot be used for the transportation industry, which in the case of a pipe-line is no different from a railroad or trucking company, in predicting future income. Granted the through-put of a pipe-line depends in a great measure upon the oil reserves which are found in the area from which it originates; but the method used here by the Company does not rely as much upon the reserves as upon the potential usage by the markets at the termination point of the line. At the trial over a thousand pages of testimony was recorded based upon the evidence given by the expert geologists and engineers. For example, there was a great deal of testimony by the experts as to the possibility of the Los Angeles Market being utilized by imports from foreign countries; by the production of the Santa Barbara offshore oil wells; testimony as to the losses because of cracks and splits which resulted in the unfortunate ecological problems caused thereby; a good deal of testimony about the potential production of the north and south slope of Alaska, and the new oil finds there; testimony that at the time consumption of oil was approximately 50 barrels per every person in the United States per year. Willard Pye, on behalf of the State, testified that considering our population increase that by 1980 consumption will go up to about 62 barrels of energy per person. He stated that as of 1968, oil and gas produced about 75% of the energy used per person, but by 1980 it will drop to about 70%. The drop will be picked up by atomic or other forms of energy but, although the percentage will drop, consumption of oil itself will increase from 1968’s 4.5 billion barrels of oil to about 6.7 billion barrels of oil per year in 1980. All of this points up the problem facing a court in hearing in a trial de novo in a case of this type. It is true, as pointed out by the Company and agreed to by the State, that the case of State Tax Commission v. Phelps Dodge Corp., 62 Ariz. 320, 157 P.2d 693 gives to the Superior Court full and exclusive right to hear the case from beginning to end; to consider all the evidence and make the same decision as if it were sitting as an expert board of property evaluators. The State has referred to this as a “presumption” that the decision made by the Board, shall be presumed to be correct and lawful, § 42-147 A.R.S., but giving to the court authority to make its own private independent decision. It is on this ground that the State has based its entire case, arguing that the Company came forth in the trial court with a method of evaluation which was not a standard approved method of appraisal and that by presenting evidence of the “wasting asset” method was not a rebuttal of the presumption at all but merely an attempt to substitute an alternate method. Citing § 42-201, subsec. 7 A.R.S. wherein the legislature defined full cash value for property tax purposes as “synonymous with market value, which means that estimate of value that is derived annually by the use of standard appraisal methods and techniques,” the State contends that the “wasting asset” method does not fit into a standard appraisal method or technique, and therefore the presumption of validity of the “income capitalization” method used by the Board has not been rebutted. The Company, as part of its case in the trial court, presented as an expert one Larry Burke who described the appraisal procedures that are, in his opinion, standard appraisal methods and techniques to arrive at a “logical conclusion as to value.” In his estimation the quoted portion of the statute — that “market value” is to be estimated by the use of standard appraisal methods and techniques — means to him the same thing as the value that would be arrived at between a willing seller and a willing buyer of the pipe-line. During the course of his testimony he described three approaches in making such an estimate of “market value.” Simply, they are a “cost value” which is described as the reproduction cost of the property, which in this case would he the pipe-line. (None of the 700 miles of real estate through which the pipeline runs in the State of Arizona is owned by the Company, but is the subject of easements.) Reproduction cost includes the physical deterioration, functional obsolescence, and economic obsolescence. In describing this, Burke pointed out the difference in the two. Functional obsolescence is inherent in the mechanism itself — the pipe-line— such as the breakdown in the pipe-line or in the machinery used to run it, whereas economic obsolescence is the decrease in value of the pipe-line in servicing those areas for which it was intended to be used. As to the latter we again presumably get back to the question of how much oil would be available between 1968 and the lifetime of the pipe-line, and how much market demand there would he, during this time, at the termination point. His second approach for evaluation is what can he described as “income” — that is, the value of the present expectation that the property would receive — projected into the future, and he says this is a system or approach that would be best used when appraising property, which is purchased for its potential economic benefit or profit. This approach can be stated as whether a willing buyer would be interested in the economic benefits that he would obtain in the future, not only getting back his original investment, hut how much he could expect to make in cash income. The third approach is “market data” which is a comparable sale of similar property in the same area. Burke makes the point, and rightly so, that such a procedure is useful only where there have been other recent and similar sales in the area. It was pointed out that it is not every day that someone buys or sells a pipe-line of such immense value; that the comparable sale method may be useful in the purchase of a home or business where you could expect that it would change hands over a period of years more than once, so that a seller could expect to sell it in five or ten years and would find a ready buyer; but for pipe-lines this is just not a feasible approach to evaluation. In support of the testimony of Burke, the Company put on another expert — a Sidney Blaxill — who testified that he agreed with Burke that the three approaches, “cost,” “income,” and “market data,” were the proper ones to use in the appraisal of property. He also supported Burke in the statement that the “cost” approach could not be used properly in the situation as obtained here because a pipe-line which was built in 1958 already has some physical or functional deterioration and economic obsolescence. It was his opinion that in such an instance the obsolescence, whether it be functional or economic, would make the “cost” approach, which includes the replacement or reproduction cost of a similar pipe-line, as not being appropriate. Fie pointed out that in such situations the economic obsolescence must include consideration of the through-put capacity, and that an appraiser must also take into account the degree of excess capacity; that is, the capacity which a 16-inch pipe-line could produce in the course of one day as compared to what the through-put actually is. In this case, alleging that the through-put capacity of Four Corners is 80,000 barrels per day and steadily declining — averaging in 1968 only 47,000 barrels a day, with the projected prospect that it would produce even less in the future — he rejects this approach to appraisal. He also rejects the market data which is also known as “comparable sales,” as testified to by Burke, for the same reasons; that there is a complete absence of market data on the purchase and sale of crude oil pipe-lines in the area. He agrees with Burke that the “income” approach is proper for appraisal. The “income” approach of course is that referred to as the “wasting assets” method of appraisal by the State. As previously stated, this method turns on the prospective income, plus other speculative elements, which will be set forth hereafter, and then discounting the projected income from the expected time of the expiration of the usefulness of the pipe-line, year by year, at an arbitrarily-selected discount rate, here twelve per cent. In other words, a dollar receivable one year from now would be worth five per cent (assuming this rate) less had it been received and invested today; but this perhaps can be best explained by the summarization of Blaxill’s testimony as set forth in the brief of the Company as follows: “Mr. Blaxill explained that after the estimate of future income was made, the valuation of the property was arrived at by determining the present worth of each item of income to be received in the future and the present worth of the salvage value remaining when the property ceased to generate income, and adding these amounts together to determine the present worth of all of the economic benefits expected to be received from the property in the future (Tr. 974, line 22, to Tr. 979, line 19). He pointed out that the present worth of the prospect of receiving a dollar five years hence is less than the worth of a dollar in hand today, because if one had the dollar today he could invest it, so that at the end of the five-year period he would have not only the dollar but the return on the investment of that dollar in the meantime; and that therefore the present value of the prospect of receiving the dollar five years hence is determined (1) by the return which could have been realized had the dollar been received presently and (2) the degree of certainty that the dollar will in fact be received (Tr. 974, line 26, to Tr. 975, line 15; Tr. 976, line 9, to Tr. 976, line 10). Mr. Blaxill took care to emphasize that this technique of applying the income approach was the appropriate one in the case of a property expected to produce an income stream with a finite life (such as the income stream to be expected from the Four Corners pipeline, which diminishes to zero in 1980, as shown by Exhibit 42 and by Exhibit 138, lines 4, 5 and (6), as distinguished from what he referred to as an on-going enterprise, i. e., a property which could be expected to produce income indefinitely, with the original capital investment being recoverable at any time in the future by a sale of the property. He reiterated that in the case of a finite income stream such as that being valued in this case the purchaser had not only to realize enough income from the property to give him a fair rate of return on his investment, but also to return his capital to him during the limited revenue-producing life of the property, since there would be no value left in the property after that limited revenue-producing life was over (except for the salvage value) (Tr. 976, lines-9-21, Tr. 985, lines 1-5). “Mr. Blaxill’s application of this discounting - of - future - income - to - present - worth technique precisely reflected Mr. Burke’s description of this technique (Tr. 29, lines 9-23).” The Company proceded to support the testimony of Burke and Blaxill by several other witnesses, primarily petroleum experts, who testified as to the future production of the area of Four Corners Pipe Line. We will use the summarization set forth in the brief of the Company, since space makes full quotation from the transcript unfeasible. This summarization is as follows: “The evidence reviewed (in addition to that of Mr. Blaxill, who explained the necessity of relying on experts in such matters as production estimates, marketing matters, and expense projections) is the testimony of the following witnesses: “MR. WALTER MOODY, a consulting petroleum engineer whose office is in Denver, Colorado, and who is president of Planet Engineers, Inc. Mr. Moody and his organization have prepared for the taxpayer during the past ten years successive estimates of future oil production in the Four Corners area, for taxpayer’s use in its business planning. Exhibits 33 and 34 set forth Mr. Moody’s conclusions. “MR. H. j. GRUY, a consulting petroleum and geological engineer whose office is in Dallas, Texas, and who is president oí H. J. Gruy and Associates, Incorporated. Mr. Gruy and his organization prepared, and Mr. Gruy gave testimony concerning, an estimate of future oil production in the Four Corners area (Exhibits 43, 44, 128,129 and 130). “MR. C. K. MONROE, Senior Tariff and Valuation Representative, Shell Pipe Line Corporation (the contract operator of the Four Corners pipeline), who testified as to the sources of revenue ; local refinery demand and market conditions affecting the amount of business available to the pipeline; tariff rates; and salvage value. “MR. SAMUEL R. EVANS, at the time of trial Senior Staff Adviser, and formerly Manager of Development Economics, Shell Pipe Line Corporation, who testified as to the absence of alternative uses for the pipeline to replace crude oil transportation as a source of revenue. “MR. ROBERT A. HEVELKA, Financial Analyst Shell'Pipe Line Corporation, who testified as to future revenues on the basis of estimated future through-put at the applicable tariff rate, and as to future operating expenses.” Appended to this opinion is a copy of Exhibit No. 138 introduced by the Company in the trial court in which, it alleges, is set forth in one document the complete breakdown on how the entire system of the “wasting asset” method is calculated. As can be noted from this by its calculations the through-put or average barrels per day going through the pipe-line from 1968 is 47,000 per day; by 1970 9,000 barrels a day; and by 1980 a blank which presumably is the expected time of the demise of the pipeline system; for a total of 130,900,000 barrels over that period of time of throughput. The Company breaks this down to obtain the gross transportation revenue through 1979. Also projected are the cash operating expenses beginning in 1968 at $1,901,000 a year, and declining, in 1979, to $1,020,000 a year for a total over the period of years of $17,786,000. Eventually this is worked down by using the discount factor, which we previously noted was selected as twelve per cent, to the present worth of the future flow between the years 1968-80 in the amount of $17,932,000 which was rounded off to $18,000,000. This figure is for the entire pipe-line system, of which 45.4 per cent consists of the 700 miles through the State of Arizona. The proportionate amount then comes out to the figure $8,141,128 for the Arizona section. This was the figure eventually accepted as proper by the trial court. The foregoing excerpts of testimony are not intended to be a re-evaluation by this Court of the testimony given in the court below, but is primarily intended to point out the complexities and difficulties involved when a court attempts to sit, de novo, in place of an expert Board in a trial involving such matters as tax assessments. Not only is a pipe-line involved here, but a method of appraisal (which possibly could be applied to other modes of transportation companies) would obtain approval by judicial fiat in place of the appraisal method sanctioned and utilized by the Board. The legislature established such administrative agencies as part of the legislative scheme of government to make these evaluations based upon their expert opinion. When courts begin sitting de novo on such matters they are then putting themselves in the position of experts in almost every conceivable field of endeavor of government regulation. It is hardly appropriate to expect any single judge to have such expertise. It is pointed to by the Company, however, and agreed to by the State, that an early decision by this Court in State Tax Comm. v. Phelps Dodge Corp., 62 Ariz. 320, 157 P.2d 693, and § 42-147, A.R.S. 'gives to the trial court the full authority to sit on a tax matter such as this as if it were the original assessing body; that is, the State Department of Property Evaluation. This Court there stated: “ * * * this section [§ 42-147 subsec. C, A.R.S.] requires an independent and original inquiry into the matters of effecting evaluation in that it expressly authorizes the trial court to consider ‘evidence of any matters that relate to the full cash value of the property’ and directs that ‘should the court find that the assessment is excessive, then the court shall find the full cash value of the property, and render judgment for appellant and against the county; * * * ’ State Tax Commission [of Arizona] v. United Verde Extension Mining Co., 39 Ariz. 136, 4 P.2d 395; State Tax Commission [of Arizona] v. Magma Copper Co., 41 Ariz. 97, 15 P.2d 961.” Unfortunately, the parties to this action misunderstood the function of the Superior Court when it reviews the assessment procedures of the Department, by ascribing to the Phelps Dodge case a holding that the Superior Court has a full measure of jurisdiction of a de novo trial in any and all cases. But that is not what that case said, nor is it what the statute says, and it is not in accord with the general rule as set forth in the leading cases. See 84 C.J.S. Taxation §§ 561-562. Phelps Dodge stated only that the court has the authority to independently find the full evaluation of the property if it determines that the assessment placed upon it by the proper quasi-judicial board is excessive. That is also the wording of the statute. This pre-condition of authority is not an innovation in the law. There are several states which give no jurisdiction whatsoever to the court to correct the determinations of boards of assessment or to substitute its own evaluation, although even in those states, by case law, it is accepted that a court, in the exercise of its equitable jurisdiction, can find that an assessment is inequitable because it is excessive, arbitrary, fraudulent, or illegal. 84 C.J.S., supra. For example, in Perez v. Velasquez, 80 N.M. 319, 455 P.2d 185, the New Mexico court adopted the theory from Cooley on Taxation, § 1144, pp. 2299-2300, that values are a matter of opinion: “ * * * and when the law has provided officers upon whom the duty is imposed to make the valuation, it is the opinion of those officers to which the interests of the parties are referred. The court cannot sit in judgment upon their errors, or substitute its own opinion for the conclusions the officers of the law have reached * * * * * * * Hi * “It is apparent that the trial court substituted its judgment for that of the taxing authorities and attempted to reassess the property in lieu of the assessment made by the taxing authorities. This it cannot do. In re Blatt, 41 N.M. 269, 67 P.2d 293 (1937); Hardin v. State Tax Commission, 78 N.M. 477, 432 P.2d 833 (1967).” And in State v. Houser, 138 Tex. 28, 156 S.W.2d 968, the Texas court stated its position as follows: “Our courts have repeatedly held that the decision of taxing boards in the matter of evaluations are quasi-judicial in nature; and, therefore, in the absence of fraud or other obvious violation of the law, such decisions are not subject to collateral attack. It has also been held that such evaluations will not he set aside merely upon a showing that the same are in fact excessive. If a board fairly and honestly endeavors to fix a just evaluation for taxing purposes, a mistake on its part under such circumstances is not subject to review by the courts. [Citations omitted.]” Because of the Arizona Statute, as interpreted in the Phelps Dodge case, our trial courts do have more jurisdiction than the courts in those cases referred to above, since our courts are empowered to sit as a reviewing body of the decisions of the executive boards which make the assessments for ad valorem taxes — but not to the extent urged upon this Court by the Company. As we stated the Phelps Dodge case indicates that the trial court can make its own evaluation where it finds that the assessment made by the Department is excessive. This of course requires a preliminary finding that such is the case as a condition precedent to the court’s assumption of jurisdiction to make its own evaluation. In the instant case the entire trial was directed toward a determination of which system — that used by the State, or that urged by the Company — -was a better system, and the bulk of the evidence revolved around the sole question of the effectiveness of methodology. It is the opinion of this Court that the focus of the evidence in the court below should have been directed to the question of whether the method of assessment used by the Department of Property Evaluation was fundamentally unfair, arbitrary, fraudulent, or equitably excessive. In the instant case such a finding is jurisdictional to any consideration of a different system. In Sheppard v. Atlantic Pipe Line Co. (Tex.Civ.App.), 165 S.W.2d 138, the Court stated: “The formula attacked as being wrongful was known as the capitalization-of-net-income method. [The same method used by the Department in the instant case]. Under the Elkins Act, as amended, 34 Stat. 587-589, 49 U.S.C.A. § 41, appellee was subject to the jurisdiction of the Interstate Commerce Commission, and a federal court consent decree prohibited appellee from paying after January 1, 1942, to the holding corporation, which owned 99.995% of appellee’s stock and which was practically its only customer, more than 7% on the valuation of its property as fixed by the Interstate Commerce Commission”. This is similar to the situation here since a consent decree was imposed by the Interstate Commerce Commission limiting the amount to 7% that Four Corners Pipeline can pay to its owners, who are the sole users. The substance of appellee’s contention in the Sheppard case was that the formula used was fundamentally wrong because it took into consideration the four years past earnings. The Court concluded: “ * * * These undisputed facts bring , the instant case not only within the rule of the Druesdow case, [Baker v. Druesdow, 263 U.S. 137, 44 S.Ct. 40, 68 L.Ed. 212] but it is similar on principle and facts to the case of Illinois Central R. Co. v. Greene, 242 U.S. 555, 37 S.Ct. 697, 700, 61 L.Ed. 1309, 1316, wherein the court in construing a statute similar to ours held as regards the use of a funda- ' mentally wrong principle or method. of calculating value, that: ‘the district court properly held that the action of the Board must be sustained unless it was made to appear that they had adopted a fundamentally wrong principle, or had been guilty of fraud. It held further, that no fundamentally wrong principle was involved in determining whether such a railroad system should be valued on the capitalization-of-income or on the stock-and-bond plan; or, if the former, what rate of interest should be used in capitalizing, or how many years earnings should be considered, or what was in fact the amount of net income for a given year: or, if the stock-and-bond plan was adopted, what was the value of the stock and bonds; and that on these and similar matters the action of the Board, in the absence of fraud, was binding upon the court. In this we concur.’ ” In the case of Yellowstone Pipe Line Co. v. State Bd. of Equalization, 138 Mont. 603, 358 P.2d 55, cert. den., 366 U.S 917, 81 S.Ct. 1095, 6 L.Ed.2d 241, the court was confronted with the same problem of evaluat ing a pipe-line system and was concerned with one of the methods of assessment, rejected by the Company experts in the instant case, known as the stock-and-bond income cost method of evaluation. Pointing out the problems that confront a trial court when it attempts to inject itself into a case of this type involving a field of expertise normally reserved for a special board of evaluation the court stated : “This case concerns itself with one of the most complicated and easily misunderstood aspects of taxation in Montana, that is, the assessment of property. Not only this court, but the courts of many other states have been confronted with the problem of judging the legality of assessment procedures.” Then in commenting upon the aspects of the method of assessment used by the Montana state board the court had this to say: “Turning then to the first issue as heretofore set forth, there exists well-defined principles which serve to guide the review of a decision of the Board of Equalization. It must be borne in mind, that in this discussion we are speaking of the propriety of the method of assessment by the Board, as that term has been heretofore defined. “In the recent case of Treasure State Pipe-Line Co. v. County of Toole, Mont. 1959 [136 Mont. 108], 345 P.2d 162, 164, we said: ‘In dealing with plaintiff’s contention it may be well to preface our discussion with certain rules and principles with respect to assessment valuations which are well-established in this state. In the early case of Danforth v. Livingston, 23 Mont. 558, 562, 59 P. 916, 917, this court said: “* * * under the great weight of authority, courts will ordinarily not interfere with the action of these officers [assessing officers] to correct mere errors of judgment. It is only where they act fraudulently or maliciously, or the error or mistake is so gross as to be inconsistent with any exercise of honest judgment, that courts will grant relief. * * * Under the authorities cited, this fact [overvaluation], standing, alone, is not sufficient to warrant the relief sought. There is not such an excess in the valuation as to justify a conclusive presumption of fraud or malice on the part of the assessing officer. The value of property is a matter of opinion, and there must necessarily be left a wide room for the exercise of this opinion. Absolute accuracy cannot always be attained. Courts cannot be called upon, in every instance, to settle differences of opinion in this regard between the assessing officer and the property owner. Otherwise, courts would be converted into assessing boards, and, in assuming to act as such, would usurp the powers lodged elsewhere by the law-making branch of the government. * * *” ’ ” Id. at 358 P.2d 69. The posture of the record in this case is similar to the Yellowstone Pipeline case, supra, in that there is no substantial evidence which would support a finding — nor in fact did the trial court make such finding — that the appraisal method employed by the Department resulted in an excessive assessment or was fundamentally wrong. The State attacked the “wasting asset” method as being speculative but the Company did not counter with evidence that the Department’s method was fraudulent, illegal, arbitrary, capricious or inherently unfair — and this is the crux of the matter. It may very well be that the “wasting asset” method is superior to other recognized appraisal methods in certain situations, but it is not the province of the courts to promulgate and implement tax assessment procedures. This is the domain of those Executive Departments which have been created by the legislature for the specific purpose of carrying out this function. The difficulties in assessing market value even on the simplified version of “willing seller— willing buyer” basis has been well illustrated in an article by E. G. DeGolyer, 1 Institute on Oil and Gas Law 577 (M. Bender & Co. .1949) : “After the technical analysis of the properties resulting in a determination of the volume and rate of production of oil and gas has been made and these data have been reduced to future net revenue, it becomes necessary to establish the market value. The first step is a calculation of the present worth of the future net revenue. This requires the discounting of such future net revenue at prevailing interest rates. “The market value of a property is not equal to the future net revenue. “After this computation, which in theory considers the cost of money factor, a willing buyer might well believe that an additional profit should accrue to him for making the investment. This factor may vary widely, because of possible risks involved in the operation of the property and the desires and respective trading abilities of the parties to the transaction. For example, the property may be located in a town lot area and fire hazard may be great. Perhaps the buyer feels that the reserves as represented by the seller are not sufficiently conservative. Perhaps the buyer feels, and remember this is the party to the transaction who is endeavoring to obtain the properties at the lowest possible price, that there will be future declines in price paid for crude oil. He may well have other reasons. In any event, a prospective buyer will want an additional return as a profit margin above the cost of his money. A calculation must therefore he made by the buyer to determine what price he can pay in order to obtain his deserved profit. * * * * * * “Present worth is often defined as the future net revenue to be derived from a producing property discounted at some arbitrary discount rate. In this connection it is interesting to note the relatively small importance of future net income which is to be derived in the distant future. For example, the future net revenue of a property netting $1,000 per month for 20 years is $240,000. The present worth of this amount discounted, at 101/2 percent per year compounded monthly is $102,000. If a similar property produced 25 years at the same rate instead of 20 years, then future net revenue would be increased by 25 percent or to $300,000 but the present worth would be only $105,000 which is representative of an increase of only 3 percent. “I would like to point out that in spite of all the precise calculations that can be made, the results in reality are only a yardstick in the final negotiations and trading between the two parties. For example, relative income tax rates may play an important part. The relative financial position and relative income tax brackets of the parties to a transaction may be entirely different. The purchaser may have substantial funds or substantial line of easy credit, in which case he may not be interested only in the calculated amount of future income tax liability but also in the relative tax liability of one venture as compared to some other venture. “More often than not, when two individuals are interested in the purchase or sale of a property, the engineer’s appraisal is only a start of trading discussions.” Id. at 591-92. In an early federal case, Union Sulphur Co. v. Reid, 271 F. 978 (D.C.W.D.La.) the company urged upon the court the “Hoover method”, which is similar to the “wasting asset” method, as the proper way to assess mining property. But that court said: “It is urged that, as during the year 1918 there was taken from the mine 918,-700 tons of sulphur, it was thereafter worth considerably less, and hence that the assessment for 1919 was wholly arbitrary. The valuation of the mine, it is claimed, should not have been based on the past production and profits, but on its expected future production and ability to make profits. Mr. Ingalls, heretofore referred to, placed on the stand by plaintiff, and asked if there were any generally recognized fundamentals or principles of mine valuation, thus succinctly described what is known as the Hoover method, so called because advocated by Mr. Herbert Hoover in a treatise on the subject: * * * * * * * * Ht “Mr. Ingalls’ plan and principles for valuation are sound in theory, and are probably the best that could be devised as a basis for a sale. One purchasing or selling mining property must look far ahead, and anticipate future events and conditions, and this he must do at his peril, as the price, once fixed and paid, is final. But in the assessment for taxation of such properties the situation is different. The assessor is guided by conditions as they exist at the time of the assessment, and is not required to hazard an opinion on future prices and cost of production which might increase or decrease the value of the property. Assessments are made annually, so from year to year they may be raised or lowered as néw conditions may warrant.” Id. at 981, 984. In this case the trial was predicated on a comparison of assessment measures which “placed the cart before the horse” since there was no preliminary finding that the Department’s valuation was improper. In the Phelps Dodge case, supra, the taxpayer was able to sustain this burden but the statement of this Court there is significant here: “The burden was upon the plaintiff company to establish affirmatively its contention that the assessment was excessive. State Tax Commission of Arizona v. Magma Copper Company, supra, [41 Ariz. 97, 15 P.2d 961]. * * *” [Emphasis supplied] To repeat, it is not the function of the judiciary to promulgate tax assessment regulations in the form of judicial opinions. The court’s function in this area of taxation is the same as in the other traditional areas of administrative law; that is to review the actions of such administrative bodies and to super-impose its opinion only in the event that the agency abused its legislatively-delegated duty. This principle was succinctly summarized by an Indiana Court as follows: “It is generally recognized that a taxpayer is not entitled to relief in this type of litigation simply because the value of his property would be fixed substantially lower if computed by a different method even if the court thought such method to be preferable to the one adopted by the taxing authority, Edison California Stores v. McColgan, Cal.Sup., 1947, 176 P.2d 697; Id., 30 Cal.2d 472, 183 P.2d 16, 22; Southern Ry. Co. v. Watts, 1923, 260 U.S. 519, 527, 43 S.Ct. 192, 67 L.Ed. 375, nor is such taxing authority obliged to use any particular method of valuation or base its valuation on any particular facts if its ultimate action is not fraudulent, capricious or arbitrary. Southern Ry. Co. v. Watts, supra.” State Board of T. Com’rs v. Chicago M., St. P. & Pac. R. Co., 121 Ind.App. 302, 96 N.E.2d 279, 283. Since there was no finding by the trial court, nor sufficient evidence introduced to support a finding, that the Department employed an inherently unjust or inequitable method of evaluation, it is the opinion of this Court that the Superior Court exceeded its jurisdiction in substituting its method of evaluation for that of the Department. One other question was raised upon appeal, that of costs to the Company, which in view of the foregoing opinion need not be answered. In view of the foregoing the decision of the Court of Appeals is vacated and the judgment of the Superior Court is reversed and set aside. The matter is remanded and it is ordered that judgment be entered for Appellants. LOCKWOOD, C. J., and UDALL and HAYS, JJ., concur. NOTE: Justice STRUCKMEYER did not participate in the determination of this matter.

UDALL, Justice: The Arizona legislature in 1967 amended the Arizona taxing statutes to impose the transaction privilege tax, commonly referred to as the “sales tax” A.R.S. § 42-1301 et seq., upon businesses engaged in the renting or leasing of personal property. The sole issue in this case is whether the legislature intended to tax the proceeds of coin-operated laundromats and car-washing machines as rental of personal property under A.R.S. § 42-1314 as amended. Since 1968 the Commission has required plaintiffs to pay license fees and taxes under the transaction privilege tax. Plaintiffs paid under protest and brought this action to recover the sums paid and for declaratory relief. The Superior Court granted plaintiffs’ motion for summary judgment and the Court of Appeals, 12 Ariz.App. 176, 468 P.2d 941 (1970), affirmed. We granted the State’s petition for review, and after careful consideration of all the arguments advanced by the parties, we hold that the plaintiffs are required to pay the transaction privilege tax. The decision of the Superior Court is reversed and the opinion of the Court of Appeals is vacated. Plaintiff-appellee Peck is the owner of a laundromat in which are installed coin-operated washing machines and dryers. Members of the public come to the laundromat with their articles to be cleaned. After depositing a fixed sum of money in the machines the customers obtain exclusive use of the machines for a certain period of time. There is no question that the customers themselves perform all the manual activities necessary for the use of the machine. Plaintiff-appellee Sollberger is the owner of a business in which is installed automatic car-washing equipment. This equipment, like the laundromat equipment, is operated by the customers. Both plaintiffs provide the utilities, including heat and water, for the operation of the equipment. For the purpose of this litigation the two plaintiffs have agreed that they are to be considered alike. No material facts are disputed. A.R.S. 42-1314 now provides in pertinent part as follows: § 42-1314. Operating amusement places; exception; leasing or renting of property; exemption A. The tax imposed by subsection A of § 42-1309 shall be levied and collected at an amount equal to two per cent of the gross proceeds of sales or gross income from the business upon every person engaging or continuing within this state in the following businesses: 1. Operating or conducting theaters, movies, operas, shows of any type or nature, exhibitions, concerts, carnivals, circuses, amusement parks, manageries, fairs, races, contests, games, billiard and pool parlors and bowling alleys, public dances, dance halls, boxing and wrestling matches and any business charging admission fees for exhibition, amusement or instruction, other than projects of bona fide religious or educational institutions. 2. Leasing or renting tangible personal property for a consideration. Sales of tangible personal property to be leased or rented to a person engaged in the business of leasing or renting such tangible personal property for a consideration shall be deemed to be resale sales. * * 3. Leasing or renting for a consideration the use or occupancy of real property, including any improvements, rights or interest in such property. (Emphasis supplied.) Pursuant to the 1967 amendment, the State Tax Commision in 1968 promulgated Regulation 2.13.15 which enumerated certain articles of personal property subjecl to taxation under A.R.S. § 42-1314, subsec.A, par. 2. Among the items included were “washing machines” and “dryers”. This regulation was promulgated under the statutory authority granted the Commission by A.R.S. § 42-1305. The major dispute between the parties here concerns the meaning of the terms “leasing” or “renting” as used in § 42-1314, subsec. A, par. 2. The legislature has not defined these terms as they are used in this section, and it does not appear from the context that a special meaning was intended. We must therefore be guided by the ordinary meaning of the words. State Board of Dispensing Opticians v. Schwab, 93 Ariz. 328, 380 P.2d 784 (1963); Arizona State Tax Commission v. First Bank Building Corp., 5 Ariz.App. 594, 429 P.2d 481 (1967). Webster’s Third International Dictionary defines the verb “to rent” as “(1) to take and hold under an agreement to pay rent,” or “(2) to obtain the possession and use of a place or article for rent.” There is no question that when customers use the equipment on the premises of the plaintiffs herein, such customers have an exclusive use of the equipment for a fixed period of. time and for payment of a fixed amount of money. It is also true that the customers themselves exclusively control all manual operations necessary to run the machines. In our view such exclusive use and control comes within the meaning of the term “renting” as used in the statute. It is plaintiff’s principal contention here that because the equipment is at all times located upon the premises of the plaintiffs, and because the plaintiffs as owners supply the utilities necessary to operate the machines, that the customers do not obtain a requisite degree of control or “possession” of the equipment. We do not believe that the terms “leasing” or “renting” as used in the statute require that the property so leased or rented be physically capable of being transported from one place to another by the customer. Nor do we believe that the mere attachment of a label such as “license”, borrowed from other areas of law, can be dispositive of the tax question before us. We note also that transactions are not removed from operation of the sales tax merely because they involve use of a coin-operated machine. This court has held that the operation of a coin-operated phonograph is taxable as a “sale of tangible personal property.” State v. Jones, 60 Ariz. 412, 137 P.2d 970 (1943). In support of their argument that customers do not rent the equipment involved in this case, plaintiffs rely on two Opinions of the Attorney General. Opinions of the Attorney General No. 3S-18, January 24, 1938, and No. 51-22, January 19, 1951. These opinions conclude that “laundries” and “dry cleaning establishments” are not taxable because they perform personal services. The provisions of A.R.S. § 42-1312, subsec. A, par. 2 exempt “professional or personal service operations” from the sales tax. The opinions of the Attorney General thus do not relate to the 1967 amendment here at issue. More importantly they quite clearly refer not to coin-operated laundromats but to establishments which perform all of the actual cleaning processes themselves. Indeed the operation of plaintiffs’ businesses is characterized by the lack of personal services provided by the owner. Plaintiffs also argue that because they paid sales tax on the equipment they purchased prior to 1967, the imposition of this tax on their operations since 1967 has resulted to some extent in double taxation. We cannot accept this position since plaintiffs at no time have been subjected to both taxes. We must also reject plaintiffs’ contention that the mechanics of the coin-operated machines make it difficult to “pass the tax on to the consumer.” Plaintiffs’ argument appears to be directed at the practical application of a tax on the proceeds of a machine. We see no reason to exempt plaintiffs on this account since a similar tax has been levied upon vending machine sales for many years. See Moore v. Arthur Realty Corp., 95 Ariz. 70, 386 P.2d 795 (1963). See also State v. Jones, 60 Ariz. 412, 137 P.2d 970 (1943). The businesses in question do reasonably fall within the statutory categories taxed. Furthermore they do not even arguably fall within categories exempted from the tax. We accordingly hold that the plaintiffs are subject to the transaction privilege tax under A.R.S. § 42-1301 et seq. The judgment of the trial court is reversed, and the opinion of the Court of Appeals is vacated. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and HAYS and McFARLAND, JJ., concur. . The regulation provides in pertinent part as follows: “Equipment or Other Tangible Personal Property. Effective March 22, 1968, income received from the renting or leasing of all equipment or tangible personal property is subject to the tax under this classification. Gross income or gross receipts derived from rental of tangible personal property includes, but is not limited to, the following: office equipment, construction equipment, restaurant equipment, data processing equipment, hospital equipment, athletic equipment such as shoes, carts, clubs, balls, gardening equipment, washing machines, dryers, televisions, radios, floor polishers, tuxedos and clolhing, linen and towel supplies, rental of film for use of theaters, etc. Effective March 22, 19GS, sales of tangible personal property to be leased or rented to a person engaged in the business of leasing or renting such tangible personal property for a consideration shall be deemed to be resale . sales.” [Emphasis supplied]

McFarland, Justice: This case is before us on a request for review of the decision of the Court of Appeals, Division One. 11 Ariz.App. 390, 464 P.2d 977. The decision of the Court of Appeals is vacated. Management Clearing, Inc., an Arizona corporation — hereinafter referred to as broker — sued James R. Vance and Frances L. Vance, his wife — hereinafter referred to as defendants — for a brokerage commission on an exclusive listing of their property with the broker for a period of three months. The listing was on a 15-unit apartment complex on East Colter in Phoenix, which was the community property of the defendants. The broker submitted a purchase contract under the terms of the listing agreement with the exception of an additional clause which was typewritten on the printed form which stated: “This offer is subject to an inspection and approval of the interiors.” If a real estate broker procures a purchaser ready, willing and able to pur chase according to the terms of the listing agreement between the broker and the seller, and the latter refuses to enter into a contract of sale with the purchaser the broker is entitled to his commission. Diamond Realty v. Haydis, 88 Ariz. 326, 356 P.2d 643. The first question is whether an offer to buy “subject to an inspection and approval of the interiors” complies with the requirements of a ready, able and willing buyer which would entitle the broker to commission. In Diamond Realty v. Haydis, supra, the terms of the purchase contract and receipt were conditioned upon two events: “ ‘This acceptance is conditioned upon and subject to an agreement to be executed by the seller and Sam Gallant & Co. whereby Sam Gallant & Co. agree to purchase from the seller the [$18,000.00] promissory note secured by the chattel mortgage and the restrictions on the license for the sum of $15,000.00, which said note, chattel mortgage and restrictions in favor of the seller said seller agrees to transfer, sell, assign and convey to said Sam Gallant & Co. for the amount indicated above.’ (Emphasis ours.)” In deciding whether the broker was entitled to his commission under these conditions, we said: “In determining the rights of a real estate broker to his commission, the established rule of law in this jurisdiction is that : “ ‘ * * * in the absence of a specific contract to the contrary, when a real estate broker has brought together the parties to a sale or exchange of real estate, and they have agreed fully on the terms and entered into a binding contract for such sale or exchange, his duties are at an end and his commission is fully earned, and it is immaterial that the parties to the contract rescind mutually or that one or the other thereof defaults and the sale or exchange is not fully effected.’ Lockett v. Drake, 43 Ariz. 357, 31 P.2d 499, 500; Sligh v. Watson, 69 Ariz. 373, 214 P.2d 123. “It is also the law that if a real estate broker procures a purchaser ready, able and willing to purchase according to the terms of the listing agreement between the broker and the seller and the latter refuses to enter into a contract of sale with such purchaser, the broker is entitled to his commission. In such case the broker has fully performed that for which he was employed and cannot be frustrated by the breach of the listing agreement by the seller. However such is not the case here. ****** “The principal question raised which is determinative of this case becomes: Is a broker entitled to a commission for the sale or exchange of real property if he procures a conditional purchaser ready, able and willing to buy only in the event of the happening of a condition which never occurs? ****** “When an agreement is made subject to the consent or approval of a third party it must be viewed as a conditional agreement dependent upon such consent or approval being given. If such consent or approval is not given then such agreement is not binding upon the parties. * * * ff In Blaine v. Stinger, 79 Ariz. 376, 290 P.2d 732, the purchaser’s contract provided in part that: * * * Seller has 2 weeks to investigate Buyer’s Financial Integrity. If dissatisfied, other financial arrangements are to be made. Buyer to pay investigation fee, not to exceed $25.00.’ This contract was signed by all the parties defendant and accepted by Kenneth G. Haydis.” In passing upon this situation, we said: “ * * * It was a conditional contract to become binding only in the event that a new financial arrangement could be agreed upon should Haydis’ financial in tegrily prove unsatisfactory to defendants. * * * * 5* * * * * “Counsel for plaintiff argues that if defendants had approved the financial integrity of Haydis, they could have enforced specific performance of the contract by Haydis, thereby assuming that it was defendants’ duty to have done so. This assumption has no basis upon which to rest. The condition, that if Haydis was unsafe as a financial risk, new financial arrangements would have to be agreed upon, was of the very essence of the contract. * * * * * * “It will be observed that plaintiff’s cause of action as pleaded is based upon the contract between Haydis and the defendants Stingers and Polk, and the contract between Alvin M. Clark and the Stingers, hereinabove mentioned, and the refusal of the Stingers, without legal cause or just reason, to proceed with the sale to Haydis, whom the plaintiff had procured as a prospective purchaser thereof. “Nowhere in the pleadings before the trial court did plaintiff seek to recover commission upon the sale made to the Sanguinettis based upon the ground that such sale was made during the existence of an exclusive contract between plaintiff and defendants for the sale of said property. “The only ground upon which plaintiff could possibly have recovered is upon the theory that the sale was made to the Sanguinettis during the period when his exclusive contract to sell the property was still in existence. The pleadings with or without the proposed amendment could not justify a judgment on that theory.” In Trimmer v. Ludtke, 105 Ariz. 260, 462 P.2d 809, the defendants executed “an open listing agreement” with the plaintiff broker for the sale of their property. The broker produced a prospective buyer, and a “purchase contract and receipt” was ■ executed by the prospective buyer. This contract and receipt provided that the property was to be “subject to new mortgage to buyers satisfaction.” In-passing, upon the question as to whether the broker was entitled to his commission, we said: “This question was answered in the negative by this court in Diamond [Realty] v. Haydis, 88 Ariz. 326, 356 P.2d 643 (1960). We stated in essence that where a broker negotiates a contract of conditional sale, he then is bound to show that • the condition has occurred which converts the conditional sale into an actual sale, a binding contract between the parties. Unless and until the conditions are met there can be no binding contract and the broker cannot recover his commission. We cited Blaine v. Stinger, 79 Ariz. 376, 290 P.2d 732 (1955) as authority for this proposition. In the Blaine case the purchase contract provided that ‘Seller has 2 weeks to investigate Buyer’s Financial Integrity. If dissatisfied, other financial arrangements are to be made. * * * ’ The buyer’s financial integrity was unsatisfactory and the parties were never able to agree upon new financial arrangements. We held that it was a conditional contract and since it was never finally consummated the plaintiff broker was not entitled to recover his commission. “The case before us is an even more appropriate situation in which to apply the rule. Here the buyer, rather than the seller, conditioned the contract upon his ability to obtain a ‘satisfactory’ mortgage. We cannot conceive of a more subjective condition; one more open to the whim of a prospective purchaser than the apparently common condition to which many realty contracts are made subject, making the sale contingent upon the buyer obtaining a satisfactory mortgage or satisfactory financing. The buyer could be offered a mortgage interest rate considerably below the prime rate and still not be ‘satisfied.’ He thus would be empowered to bind the seller and yet remain free to shop for other property and then buy from the seller or not as he might choose for practically any reason. We hold that a broker has in no way earned his commission by the presentation of such a buyer.” The circumstances in the instant case fall within the principles of an offer presented by a broker and a prospective buyer being conditional in that it is made subject to the buyer’s inspection and approval of the interiors of the apartments. The buyer, in his deposition, stated: “Q You did want to see the interior of the apartments before the deal was final, however, didn’t you? “A Yes. "Q That was the reason for this notation on the purchase contract and receipt, ‘This offer is subject to inspection and approval of interiors,’ is that correct? “A That is correct.” Vance stated, in his deposition, regarding the prospective buyer’s offer, as follows: “Q Now, when you got this Xerox copy of this Defendants’ Deposition Exhibit A in the mail from our office, at the time that you got that was still within the 90-day period, was it not, sir ? “A Now, when you looked at that — and I assume you looked at it when you got it from our office, didn’t you ? “A Yes, I did. “Q I’m asking you now whether or not the terms of that purchase contract that you got in the mail from our office were, in essence, the same terms as were contained on the listing that you had given back in August to Management Clearing ? “A I would say so, with the exception that it looked to me like I’m stuck but the buyer isn’t. “Q And what makes you say that, sir? “A Four A. ‘This offer is subject to inspection and approval of interiors.’ “And when I sign, I sign unconditionally that I’m going to part with it. This fellow could walk in a month later and say, well, I don’t like the color of the kitchen and it’s not approved.” The acceptance of the buyer which contained the wording “this offer is subject to inspection and approval of interiors” was a conditional acceptance, and since it was not binding upon the buyer, it did not meet the requirements necessary for a broker to recover a commission. Diamond Realty v. Haydis, supra; Blaine v. Stinger, supra; Trimmer v. Ludtke, supra. The broker contends that the defendants waived the inspection and approval, and therefore the broker was entitled to recover the commission. The questions were submitted to the court upon the pleadings and the depositions of James R. Vance and the prospective buyer, John Walck. Vance testified that the representatives of the broker had called him in regard to a couple of offers sometime about the week of the 20th of October, neither of which was suitable as it was for too long a term and too tough on the buyer, in his opinion — that he told them at the time in looking it over it looked to be too harsh and that he wanted to refinance the building and make a little better deal for both a prospective buyer and himself — that it was after this that he got a call, after the 20th of October, in regard to a potential buyer. He testified as follows: “Q And did you discuss the terms on these two or three times, or did you refuse to discuss it with them at all? “A No. I said, the first time, “Well, I told you the last phone call you made’— Miske was on the phone that time — I said, T told Miss Barrett that I was going to refinance this thing and get the first mortgage back up and then we would go ahead and do something with it, but I don’t want to do anything until we get the thing refinanced.’ “And Beau said, ‘If that’s the way you feel about it, okay.’ “Q Did you ever confirm this cancellation by letter? “A No, I didn’t. ****** “Q Did you believe, sir, that if you canceled this within the three-month period, you would have incurred any responsibility to the broker for whatever work they may have done on your property ? “A No, not when they indicated it was okay with them. “Q And who was it who indicated that to you? “A Both Miss Barrett and Mr. Miske. "Q And what was the nature of this indication? What did they say to you? “A Oh, as I recall, about the last sentence was about the same from both of them: ‘If that’s the way you want to do it, okay.’ ” He further testified that he did not see the proposed escrow instructions or a copy thereof until it was mailed by the broker’s attorney. In this regard he stated: “A I received a Xerox copy from Mr. Katz’ office, of escrow instructions and purchase contract and agreement, but it was not originals; it was Xerox copies, which it had the — I immediately sent it to my attorney. And it had the wrong legal property discription [sic] on it, and a conditional deal on inspection by the prospective buyer, whom I had never met, but I’ve never seen any originals.” Vance testified in regard to the last proposal : "We never got into the details of it. * * * ” However, he testified that the Xerox copy was mailed by defendant’s counsel prior to the expiration of the ninety days, and upon question by the broker’s counsel he stated: “A Four A. ‘This offer is subject to inspection and approval of interiors.’ “And when I sign, I sign unconditionally that I’m going to part with it. This fellow could walk in a month later and say, well. I don’t like the color of the kitchen and it’s not approved.” Also, he further testified that he had never refused inspection to any one — that the broker never asked him for permission for the buyer to inspect the building; that during the time of the listing: “A Well, every once in awhile I get a little letter from them, saying that they had shown the property to a certain party, not stating, and ‘Please advise us if there has been any changes in your property.’ ” There is no conflict in the evidence or the record that no request was made by the buyer or the broker for permission for the buyer to inspect the premises; that the buyer drove by the premises several times but did not ask the defendants for permission to inspect the interiors; that at no time did the defendants refuse the broker or the prospective buyer such permission. It would have been necessary for the defendants to have refused to permit the inspection in order to create a waiver of the defense that the buyer’s offer was conditional and he was not, therefore, ready, willing, and able. There was no refusal to permit an inspection. It was for the broker to find a prospective buyer ready, willing, and able to purchase the property as set forth in the listing agreement without conditions. If the broker expected to bind the defendants it would have to comply fully. It was part of its job to see that the buyer inspected the premises, or at least request permission from the defendants to inspect the premises before it can say that it has fully complied with the listing agreement. The defendants, according to the record, did not know what the conditions were until they received the proposed contract sent to them by the broker’s attorneys on November 12, 1968, just before suit was brought on November 15, 1968. While the sending of the written contract which contained the condition gave the defendants notice as to what was in the contract, it cannot be said that it constituted a waiver during the 3-day period before the suit was brought. The broker, in his Memorandum in Opposition to the Motion for Summary Judgment, contended that: “Seller, by his conduct has waived the condition concerning inspection and is estopped from claiming a variance in the terms.” However, there was no question of fact for the trial court because the clause was a condition of the buyer which was inserted by the broker on behalf of the buyer. This condition the seller could not waive, which distinguishes this case from those cited in the broker’s brief in regard to conditions the seller could waive and thereby make a binding contract. The defendants could not make a binding contract which they could enforce by accepting the buyer’s conditional offer. Furthermore, in the instant case, there was no request to make an inspection nor did the seller refuse to permit an inspection. In view of our holding that the instant case must be reversed on these grounds, it is' unnecessary for this Court to pass on the question of the authority of the husband to bind the community, by his signature alone, under the facts of this case. The decision of the Court of Appeals is vacated, and the Order of the Superior Court granting defendant’s Motion for Summary Judgment is affirmed. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and HAYS, JJ., concur.

SUPPLEMENTAL OPINION ON REHEARING O’CONNOR, Judge. Appellees’ motion for rehearing of the unpublished Memorandum Decision filed in this case on June 3, 1980, has been granted. Because of the confusion which exists in the judicial opinions in this state and elsewhere on the question of application of the parol evidence rule to allegations of promissory fraud when it contradicts or varies the terms of the written agreement of the parties, we have decided to expand and modify in part our previous decision. This appeal is from a partial summary judgment quieting title to a 131 acre parcel of real property in appellees, and awarding attorneys’ fees to appellees. The trial court determined that appellant’s option to purchase the land had expired. Appellant alleges there was evidence before the trial court that the appellees prevented appellant from complying with the terms of the option, and that appellees fraudulently induced appellant’s delay in performance, thereby excusing a delay in appellant’s performance. In January, 1976, one of the appellees, Pinnacle Peak Developers, sold forty acres of land to appellant for a residential subdivision development. At the same time, appellee, Pinnacle Peak Developers, entered into a written option agreement with appellant, TRW Investment Corporation, in which appellant was granted an option to purchase approximately 131 additional acres of land in three stages and on certain express terms and conditions. The first stage of the option was to expire June 15, 1977, and could be exercised by appellant “if, and only if, [appellant] has installed the off-site improvements required by Section XXXIII of [the] Trust Agreement ... on not less than fifty percent [of the forty acre parcel].” Failure to exercise the first stage of the option was to terminate the balance of appellant’s option rights. The off-site improvements to be provided by appellant included electrical and telephone lines, marking of boundaries of the lots, grading, roads, and a water distribution system. Appellant did not complete the required off-site improvements until July 15, 1977, some thirty days after the deadline in the option agreement. Appellant attempted to exercise the first stage of the option. Appellees refused to allow it on the grounds that the option had expired without completion of the required improvements. After the refusal, appellant recorded the option agreement in the office of the Maricopa County recorder. Appellees then filed suit against appellant, alleging in Count I of the complaint a cause of action for slander of title and interference with business relations, and in Count II a cause of action to quiet title to the property covered by the option. Appellant answered and counterclaimed for specific performance of the option and for damages for fraud in the inducement. After various motions made in the trial court, the court granted partial summary judgment to appellees by quieting title to the property covered by the option in Pinnacle Peak Developers and awarding attorneys’ fees of $19,595.25 for the quiet title claim. A motion for summary judgment should be granted only where the pleadings, depositions, admissions on file, and affidavits, if any, show that there is no genuine issue as to any material fact. Northen v. Elledge, 72 Ariz. 166, 232 P.2d 111 (1951). As stated in Dutch Inns of America, Inc. v. Horizon Corp., 18 Ariz.App. 116, 118-19, 500 P.2d 901, 903-04 (1972): [T]here are two prerequisites that must be met before entry of summary judgment is appropriate: (1) The record before the court must show that there is no genuine dispute as to any material fact and that only one inference can be drawn from those undisputed material facts; and (2) that based on the undisputed material facts the moving party is entitled to judgment as a matter of law. [Citation omitted] In reviewing the granting of a motion for summary judgment, we must view the evidence in the light most favorable to the party opposing the motion, and the motion should be denied if there are any material issues of fact to be litigated. Appellant contends that summary judgment was not proper because there was an issue of material fact as to its affirmative defense of fraudulent inducement. Specifically, appellant alleged that appellees falsely and fraudulently stated to appellant in December, 1975, prior to execution of the option agreement, that the deadline of June 15, 1977, for completion of the off-site improvements “would not present a problem as long as TRW made reasonable progress.” Appellant alleged that the representation was false when it was made, and that in reliance upon the representation, it decided to enter into the purchase of the forty acres and the option agreement, and that the agreements would not have been made but for the representation. Arizona courts require strict compliance by the holder of an option with the terms of the option. Oberan v. Western Machinery Co., 65 Ariz. 103, 174 P.2d 745 (1946); University Realty & Development Co. v. Omid-Gaf, Inc., 19 Ariz.App. 488, 508 P.2d 747 (1973). The requirements of completion of the off-site improvements and exercise of the option by June 15, 1977, are clear and unambiguous. The express terms and conditions precedent of a contract will be enforced by the courts regardless of the harshness or severity of the result. Arizona Land Title & Trust Co. v. Safeway Stores, Inc., 6 Ariz.App. 52, 429 P.2d 686 (1967); 5 Williston on Contracts § 669, at 154 (3d ed. 1961 & Supp. 1979). Appellees argue that evidence of the alleged oral representation made prior to execution of the option agreement would be barred by the parol evidence rule, citing Standage Ventures, Inc. v. State, 114 Ariz. 480, 562 P.2d 360 (1977); Sun Lodge, Inc. v. Ramada Development Co., 124 Ariz. 540, 606 P.2d 30 (App. 1979); 7-G Ranching Co. v. Stites, 4 Ariz.App. 228, 419 P.2d 358 (1966); and Apolito v. Johnson, 3 Ariz.App. 358, 414 P.2d 442 (1966). Appellant cites authorities for the proposition that parol evidence is admissible to show fraud in the inducement even though it has the effect of varying the terms of the written agreement of the parties. See Lusk Corp. v. Burgess, 85 Ariz. 90, 332 P.2d 493 (1958); Lutfy v. R.D. Roper & Sons Motor Co., 57 Ariz. 495, 115 P.2d 161 (1941); Dowdle v. Young, 1 Ariz.App. 255, 401 P.2d 740 (1965). The appellant urges the admissibility of evidence of an oral promissory representation by appellee, which was made prior to the execution of the written option agreement and which is contrary to an express provision of the written agreement. Appellant offers the evidence and alleges that appellee’s promissory representation was false when made, was made with an intention not to honor it, and that appellant relied upon it. Appellant seeks to use the allegation of fraud in the inducement as a defense to appellee’s quiet title claim. Appellant does not seek to void the option agreement; it seeks to enforce it, and to excuse appellant’s failure to fulfill an express condition of the written option agreement. A promise, when made with a present intention not to perform it, is a misrepresentation which can give rise to an action of fraud. Restatement of Contraéis § 473 (1932); Restatement of Torts § 530 (1938). As stated in Waddell v. White, 56 Ariz. 420, 428, 108 P.2d 565, 569 (1940): Representations which give rise to an action of fraud must, of course, be of matters of fact which exist in the present, and not merely an agreement or promise to do something in the future, or an expression of opinion or judgment as to something which has happened or is expected to happen. To this there is one exception, that when a promise to perform a future act is made with the present intention on the part of the promisor that he will not perform it, it is such a representation as will give rise to an action of fraud. Law v. Sidney, 47 Ariz. 1, 53 P.2d 64. See also Jamison v. Southern States Life Insurance Co., 3 Ariz.App. 131, 412 P.2d 306 (1966); James and Gray, Misrepresentation (pt. II), 37 Md.Law Rev. 488 (1978). A good statement of the parol evidence rule is found in Childres and Spitz, Status in the Law of Contract, 47 N.Y.U.L. Rev. 1, at 6-7 (1972): The parol evidence rule, as traditionally stated, renders inadmissible any evidence of prior or contemporaneous oral understandings and of prior written understandings, which would contradict, vary or add to a written contract which was intended as the final and complete statement or integration of the parties’ agreement. There are three situations in which it is said that the above rule does not apply and parol evidence is admissible: (1) to show that no contract was in fact made (e.g., because of non-delivery or conditional delivery), or that the contract is voidable for fraud, mistake, duress, undue influence, incapacity or illegality; (2) to demonstrate that the parties intended the writing to be only a partial integration of their agreement, thereby permitting the existence of non-contradictory collateral agreements to be proved; and (3) to assist in the interpretation of the contract, or to prove the usages and customs in relation to which the parties contracted, thus allowing the addition of consistent terms of performance or the definition of words used in the contract. A summary of the problem raised in a case such as this one is succinctly stated in James and Gray, Misrepresentation (pt. II), 37 Md.Law Rev. 488, at 507-08 (1978): Although the notion of promissory fraud is well recognized, it may seriously collide with the policies underlying certain prophylactic legal rules like the Statute of Frauds and the parol evidence rule. Both these rules are designed to prevent fraudulent claims (or defenses) through excluding a type of evidence (viz., evidence of oral agreement) which is too easy to fabricate and too hard to meet. It could go without saying that these rules are not meant to shield fraud, but they may well have just that effect if they prevent a party from showing that he has been deceived by an oral promise, made to induce reliance and action but without the slightest intention of keeping it. Many courts allow oral proof of fraud in such a case and this seems sound because the affirmative burden of proving fraud (i.e., present intent not to keep the promise when it was made, or even the absence of an intent to keep it) would seem to be a substantial safeguard against trumped-up contracts. Moreover, the safeguard is enhanced by the prevailing procedural rules requiring clear and convincing evidence of fraud and holding that the mere nonperformance of a contract does not warrant an inference of the requisite fraudulent intent, [footnotes omitted]. The cases from other states are split widely on whether to permit parol evidence which contradicts a writing when fraud in the inducement is alleged. A number of courts appear to follow the Restatement of Contracts § 238 (1932), and allow evidence of promissory fraud, notwithstanding the parol evidence rule. See, e.g., Ott v. Midland-Ross Corp., 600 F.2d 24, 28 n.4 (6th Cir. 1979); United States v. 1,557.28 Acres of Land in Osage County, Kansas, 486 F.2d 445 (10th Cir. 1973); Pena v. Tampa Federal Savings and Loan Ass’n, 363 So.2d 815 (Fla.App. 1978); Shanahan v. Schindler, 63 Ill.App.3d 82, 20 Ill.Dec. 239, 379 N.E.2d 1307 (1978); NAG Enterprises, Inc. v. All State Industries, Inc., 407 Mich. 407, 285 N.W.2d 770 (1979); Watkins v. Lorenz, 264 Minn. 471, 119 N.W.2d 482 (1963); Dodds v. Gibson Products Co. of W. Montana, 593 P.2d 1022 (Mont. 1979); Warshaw v. Hassid, 41 A.D.2d 652, 340 N.Y.S.2d 666 (1973); Marshall v. Keaveny, 38 N.C.App. 644, 248 S.E.2d 750 (1978); National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 381 A.2d 963 (1977); Empire & Associates, Inc. v. Texas Contractors Rentals, Sales & Supplies, Inc., 567 S.W.2d 578, ref. n.r.e. (Tex. Civ.App. 1978); Negyessy v. Strong, 136 Vt. 193, 388 A.2d 383 (1978); and George Robberecht Seafood, Inc. v. Maitland Bros. Co., 220 Va. 109, 255 S.E.2d 682 (Va. 1979). Other courts exclude evidence of promissory fraud which contradicts the terms of the written agreement on the basis of the parol evidence rule. See, e.g., Bank of America National Trust & Savings Ass’n v. Pendergrass, 4 Cal.2d 258, 48 P.2d 659 (1935); Regus v. Gladstone Holmes, Inc., 207 Cal.App.2d 872, 25 Cal.Rptr. 25 (1962); Greenwald v. Food Fair Stores Corp., 100 So.2d 200 (Fla., 1958); Simmons v. Wooten, 241 Ga. 518, 246 S.E.2d 639 (1978); Jack Richards Aircraft Sales, Inc. v. Vaughn, 203 Kan. 967, 457 P.2d 691 (1969); Loughery v. Central Trust Co., 258 Mass. 172, 154 N.E. 583 (1927); Dahmes v. Industrial Credit Co., 261 Minn. 26, 110 N.W.2d 484 (1961); Hoff v. Peninsula Drainage Dist. # 2, 172 Or. 630,143 P.2d 471 (1943); Kilgore v. Hix, 205 Tenn. 564, 327 S.W.2d 474 (1959); and Beers v. Atlas Assur. Co., 215 Wis. 165, 253 N.W. 584 (1934). The debate involves the question: is the public better served by giving effect to the parties’ entire agreement written and oral, even at the risk of injustice caused by the possibility of perjury . . ., or does the security of transactions require that, despite occasional injustices, persons adopting a formal writing be required, on the penalty of voidness of their oral and written side agreements, to put their entire agreement in the formal writing? Calamari and Perillo, A Plea For a Uniform Parol Evidence Rule and Principles of Contract Interpretation, 42 Indiana L.J. 333, 341 (1967). See also 3 Corbin on Contracts § 575 (1960); 4 Williston on Contracts § 633 (3d ed. 1961); C. McCormick, Handbook of the Law of Evidence, §§ 210-16 (1954). The reported decisions in Arizona involving the admission of evidence which contradicts or varies a subsequent written agreement illustrate the confusion which exists elsewhere in dealing with this question. Four cases have allowed evidence of prior or contemporaneous oral representations which were at variance with a written agreement in support of a claim for damages for fraud in the inducement. In Lusk Corp. v. Burgess, 85 Ariz. 90, 332 P.2d 493 (1958), the plaintiff entered a written agreement with defendant to buy a house and lot. The agreement contained a provision that it covered all the agreements, expressed or implied, between the parties. Prior to execution of the agreement, the defendant had orally promised plaintiffs that the adjacent lot would be used for a certain specified use and type of construction and design. The trial court found that the promise was false when made and had been reasonably relied upon by plaintiffs to their injury. The plaintiffs recovered damages for fraud in the inducement. The Arizona Supreme Court held: [T]he law has long been settled that whereas evidence of prior or contemporaneous oral agreements and negotiations is inadmissible, to vary terms of a written contract, nevertheless parol evidence is admissible to show fraud in the inducement of said contract. Id. at 93, 332 P.2d at 495. In Lutfy v. R.D. Roper & Sons Motor Co., 57 Ariz. 495, 115 P.2d 161 (1941), the plaintiff sought damages from the defendant for fraudulent misrepresentation that the automobile purchased by plaintiff was a 1937 model, when in fact it was a 1936 model. The written contract negated any representations or warranties other than those in the written contract. The Arizona Supreme Court approved the action of the trial court in allowing plaintiff to testify as to the oral representations made by defendant concerning the year and model of the automobile “because parol evidence is always admissible to show fraud, and this is true, even though it has the effect of varying the terms of a writing between the parties”, citing Arnett v. Sanderson, 25 Ariz. 433, 218 P. 986 (1923); L.C. James Motor Co. v. Wetmore, 36 Ariz. 382, 286 P. 180 (1930); and Mooney v. Cyriacks, 185 Cal. 70, 195 P. 922 (1921). Id. at 506-07, 115 P.2d at 166. In Pioneer Constructors v. Symes, 77 Ariz. 107, 267 P.2d 740 (1954), defendants successfully counterclaimed for fraud. Defendants entered into a written agreement with plaintiff to build low-cost houses. The written agreement stated that the total cost of all materials and labor would not exceed $3,100.00 per unit. At trial, evidence was admitted that the $3,100.00 maximum was placed in the contract at the insistence of a bonding company but was not intended by the parties to limit the amount to be paid to defendants for the construction. The court allowed the parol evidence “to show fraud,” and cited Lutfy. Id. at 113, 267 P.2d at 745. See also Bomfalk v. Vaughan, 89 Ariz. 33, 357 P.2d 617 (1960). Two Court of Appeals cases have admitted evidence of prior oral representations to show that the written agreement was procured by fraud. Dowdle v. Young, 1 Ariz. App. 255, 401 P.2d 740 (1965), allowed evidence of oral representations of the dimensions of a silage pit in a suit for breach of warranty and fraud despite a written agreement which contained a warranty as to the quantity of silage being sold in the pit. The opinion states: The alleged oral representations were not warranties but were alleged statements which could have induced plaintiff to believe that there was 2300 tons of silage in the pit. We approve the view asserted in many decisions and implied in other that parol evidence is admissible to prove fraud. This is not in conflict with the well-known parol evidence rule which renders parol or extrinsic evidence inadmissible to contradict or vary the terms of a written contract. The latter rule does not apply where the issue is whether the contract was procured by fraud. The fact that a contract is in writing does not preclude the introduction of evidence to show that a material stipulation therein was founded on the misrepresentations and fraud of one of the parties .... Id. at 258, 401 P.2d at 743. The Court of Appeals in Jamison v. Southern States Life Insurance Co., 3 Ariz. App. 131, 412 P.2d 306 (1966) set aside a summary judgment for the plaintiff who had sued to collect on a promissory note, holding that the parol evidence rule “does not preclude the showing that a written contract was entered into in reliance upon fraudulent representations”, citing Dowdle and the Restatement of Contracts § 238. 3 Ariz.App. at 134, 412 P.2d at 309. The opinion held that the defendant was entitled under the pleadings to offer evidence in defense of the .suit on the note that plaintiff had orally misrepresented that if defendant would execute the promissory note, plaintiff would make a mortgage loan to defendant. On the other hand, there are two Court of Appeals cases from Division 2 which hold that evidence of prior oral representations is inadmissible when it would directly contradict a provision of a written agreement. Sun Lodge, Inc. v. Ramada Development Co., 124 Ariz. 540, 606 P.2d 30 (App. 1979); and Apolito v. Johnson, 3 Ariz.App. 232, 413 P.2d 291 (1966), supplemental opinion, 3 Ariz.App. 358, 414 P.2d 442 (1966). In Sun Lodge the court held that evidence of promises by appellee-seller to deliver certain furniture by November 1 was properly excluded where the written sales contract provided that a minimum of 90 days must be allowed for delivery. The opinion stated: Evidence of statements which are squarely against the terms of the written agreement are inadmissible under the parol evidence rule. Apolito v. Johnson, 3 Ariz. App. 358, 414 P.2d 442 (1966). 124 Ariz. at 542, 606 P.2d at 32. Apolito held that evidence of oral misrepresentations by the seller of land that the buyers would only be liable for half of the purchase price stated in the separate written agreements with each buyer was not admissible in support of the buyers’ claim for rescission. The supplemental opinion states: [T]he alleged misrepresentations were contradictory to the provisions of the written contract. In order to form a basis for rescission, the misrepresentations must be as to some collateral matter and not mere contradictions of the provisions of the contract expressed in clear, unambiguous language. Newmark v. H. & H. Products Mfg. Co., 128 Cal.App.2d 35, 274 P.2d 702, 703 (1954). Mrs. Johnson’s purported representations that appellants would not have to make any more payments and/or that the total purchase price was not as stated in the escrow instructions were contrary to and inconsistent with the express terms of the written contract executed by the parties. Evidence of such statements which are squarely against the terms of the writing cannot be received or counted upon to support a finding of fraud, for to allow otherwise would do violence to the parol evidence rule. Shyvers v. Mitchell, 133 Cal.App.2d 569, 284 P.2d 826, 830 (1955). 3 Ariz.App. at 359-60, 414 P.2d at 443 — 44. Division 2 of the Court of Appeals in Apolito and Sun Lodge appears to have adopted the California view, and the view of a number of other jurisdictions, that limits the admissibility of promissory fraud when it conflicts with the written agreement. The California doctrine and cases cited by the court in Apolito are discussed and criticized in Sweet, Promissory Fraud and the Parol Evidence Rule, 49 Cal.L.Rev. 877 (1961). The determination of when an oral promise is inconsistent with the written agreement can be difficult. See General Corp. v. General Motors Corp., 184 F.Supp. 231 (U.S. D.C. Minn., 3d Div., 1960); Dillon v. Sumner, 153 Cal.App.2d 639, 315 P.2d 84 (1957); and Simmons v. California Institute of Technology, 34 Cal.2d 264, 209 P.2d 581 (1949). Indeed, it is difficult to conclude that the oral promises made in Lusk Corp. were not inconsistent with the written agreement which negated the existence of any such promise. A case by case study of a large number of cases nationwide dealing with the application of the parol evidence rule has been reported in Childres and Spitz, Status in the Law of Contract, 47 N.Y.U.L.Rev. 1 (1972). The results indicate that, in practice, courts generally apply the parol evidence rule to exclude allegations of prior or contemporaneous oral promises which contradict the written agreement in cases involving “formal contracts” which were the result of negotiation between parties with some expertise and business sophistication. Id. at 8, 9. ' There is a much greater tendency in the reported cases to allow such evidence in “informal contracts” between people who lack sophistication in business. Id. at 17-24. In cases involving abuse of the bargaining process, such as unconscionable contracts or contracts involving duress, the courts almost always disregard the parol evidence rule and allow evidence of the oral promises or representations. The pleadings and affidavits in this case reflect that the parties each had experience in business transactions and that the written option agreement was prepared as the result of negotiations between the parties, who were represented by counsel. It involved a relatively substantial and sophis ticated real estate transaction. The written option agreement was a “formal contract.” The contradiction of the written agreement and the oral representation is clear. Appellant is asking the court to substitute the prior statement by appellee’s agent to the effect that completion of the offsite improvements by the June 15 deadline would not be necessary if reasonable progress had been made for the express provision in the written agreement requiring completion of the improvements by June 15. The facts are such that courts in most jurisdictions would exclude the evidence of the prior oral statement on the basis of a strict application of the parol evidence rule. It is our opinion on rehearing that the trial court correctly granted summary judgment to appellee on Count II quieting title to the property covered by the option agreement in appellee. The application of the parol evidence rule moves along a continuum based on the extent of the contradiction and the relative strength and sophistication of the parties and their negotiations. We disagree with the broad and simple statement of the application of the rule as set forth by Division 2 of this court in Sun Lodge and Apolito. There are circumstances under which evidence of a prior or contemporaneous contradictory oral representation or promise would be admissible notwithstanding the subsequent integrated written agreement of the parties, as is illustrated by Lusk Corp. The memorandum decision filed in this case on June 3, 1980, is modified to the extent set forth above. In all other respects it remains unchanged. The judgment is affirmed. EUBANK, P. J., and HAIRE, J., concur. . The tentative draft of the Restatement (Second) of Contracts also appears to allow parol evidence of contradictory prior representations to establish fraud, or as grounds for granting or denying reformation, specific performance or other remedies: Agreements and negotiations prior to or contemporaneous with the adoption of a writing are admissible in evidence to establish (a) that the writing is or is not an integrated agreement; (b) that the integrated agreement, if any, is completely or partially integrated; (c) the meaning of the writing, whether or not integrated; (d) illegality, fraud, duress, mistake, lack of consideration, or other invalidating cause; (e) ground for granting or denying rescission, reformation, specific performance, or other remedy. Restatement (Second) of Contracts § 240 (Tent. Draft Nos. 1-7, 1973). Except as stated in the preceding section, where there is a binding agreement, either completely or partially integrated, evidence of prior or contemporaneous agreement or negotiations is not admissible in evidence to contradict a term of the writing. Restatement (Second) of Contracts § 241 (Tent. Draft Nos. 1-7, 1973).

McFarland, Justice: Formal charges were filed by the Board of Governors against W. Francis Wilson— hereinafter referred to as Respondent— alleging that he had violated the Canons of Professional Ethics of an attorney at law, including Canons 11 and 22; also that he had violated Sec. 32-267, A.R.S. Consideration of the questions involved by both the Bar and this Court are complicated by the unique situation which developed during and after the hearings on this matter by the Board of Governors and before final presentation to this Court. The charges grew out of the handling of the cases of two of Respondent’s clients, Elizabeth Bates Counter and Gladys Porter; but both retracted their original expressions of dissatisfaction with the manner their respective cases were handled by Respondent. However, the original complaints against Respondent, as set forth in the record furnished this Court by the Bar Association, involved ten complaints by Joe Weber, a former business associate of Respondent, eight of which related to the handling of business transactions between himself and Respondent and statements made by Respondent in regard to their business transactions and lawsuits and in regard to Respondent’s own divorce case. The other two involved Weber’s part in the handling of the Counter and Porter matters. The Bar Association recommendations were confined to Respondent’s handling of the Counter and Porter matters. Weber’s testimony was accordingly confined to the handling of these matters. Both clients not only retracted their expressions of dissatisfaction, stating that their previous representations had grown out of a misunderstanding, but also expressed satisfaction with the manner in which the Respondent had handled their respective cases. Since the other clients, Counter and Porter, have in effect withdrawn their previous expressions of dissatisfaction with the Respondent’s handling of their cases, Weber remains the only complainant who contends that the cases were improperly handled. This will be discussed more in detail under the respective counts. The Bar Association did not have the benefit of the letter and affidavit by Mrs. Counter expressing satisfaction with Respondent’s handling of her case, and requesting that the Bar Association’s recommendation be withdrawn. These were received after its recommendation had been submitted. We have held that this Court is a trier of the ultimate facts. In re Rogers, 100 Ariz. 214, 412 P.2d 710; In re Tribble, 94 Ariz. 129, 382 P.2d 237. We have also recognized that the recommendations of the Board of Governors of the State Bar Association are entitled to serious consideration. In re Rogers, supra; In re Tribble, supra; In re MacDonald, 56 Ariz. 120, 105 P.2d 1114. This Court, in determining whether the facts justify disbarment, has also held that while disbarment proceedings are not, strictly speaking, criminal in nature they are quasi so. While the allegations that a number of the Bar is guilty of unprofessional practice does not have to be proven beyond a reasonable doubt, the evidence must be clear and convincing to justify the imposition of such a penalty. In re Lewkowitz, 70 Ariz. 325, 220 P.2d 229; In re Sweeney, 51 Ariz. 9, 73 P.2d 1349; In re Myrland, 43 Ariz. 126, 29 P.2d 483. The question then is whether under this test it is proven by clear and convincing evidence that the Respondent is guilty of unprofessional conduct. In the instant case, the Board of Governors of the State Bar Association based its recommendations on allegations set forth in two counts. COUNT ONE The Respondent was employed as an attorney prior to 1959 by Elizabeth Bates Counter for the purpose of representing her in the claim against Greyhound Bus Lines. The Respondent and Dick Wilson, not a party to these proceedings, secured a settlement of Mrs. Counter’s claim against Greyhound Bus Lines in the sum of $32,-500. The Board of Governors contends that the money was paid to Wilson in trust for Mrs. Counter and was thereafter comingled with the Respondent’s own assets and funds. It also contends: “That respondent, without authorization, loaned or contributed the sum of $6,500.-00, a portion of the aforesaid funds, to one Joe Weber who was a business associate of the respondent and engaged with respondent in the development of property in the Harquahala Valley and elsewhere. That said sum of $6,500.00 was invested and used in the development of the aforesaid property and business venture in which respondent had a financial interest.” The Respondent’s story in regard to these allegations is that he made the settlement on the personal-injury case against Greyhound in the sum of $32,500, and that after he deducted attorney’s fees and costs there was left a balance of $21,564.97 belonging to Mrs. Counter — that Mrs. Counter and his family were life-long friends. He and Richard Wilson both advised her she was liable to lose the money because of a personal problem. Her husband had died shortly after the accident, and she was keeping company with another man whom she later married, and because of the situation that existed she agreed that the Respondent would keep the money and pay it out to her at the rate of $250 per month — that there were no strings attached to the manner in which he was to handle the money, and that he would have unrestricted use of the funds and the right to invest them. Thereafter he did lend $6,-500 of the money to Joe Weber with whom he had business dealings. The evidence shows that Joe Weber testified that the Respondent, upon giving him the $6,500 in response to Weber’s request for money, said: “I don’t have any at this moment, but I have some in a client’s fund that I can’t take, but I can loan it to you and you use it in the business and I will pay it back.” The investigator for the Bar Association recommended that: “The determination of the dispute between Wilson and Weber as to the circumstances and purposes for the loan from Counter’s funds might appropriately be deferred until termination of the current litigation concerning this question.” The court in that litigation found against the accuracy of Weber’s version of this transaction, and rendered judgment against Weber. This, in line with the recommendation, eliminates the charge of Joe Weber in regard to the loan. The question of whether the Respondent violated the code of ethics in handling the money in the Counter matter depends largly upon whether he was handling the money under a debtor-creditor relationship, or as a trustee for Mrs. Counter. This must be determined by the facts as presented. The testimony of both the Respondent and Richard Wilson was that the relationship was that of debtor and creditor. Respondent testified: “Q Then is it fair to say that what you are describing is not a trustee-beneficiary relationship, but a debtor-creditor relationship between Mrs. Bates and yourself? “A Yes. “Q And you then simply were indebted to her for that portion of her share of the settlement which had not previously been expended to her from her account at any moment in time. “A Yes. “Q Together with any earnings which might be derived from those funds if they had been placed at interest? “A True. That’s right. ****** “And Richard and I talked to her on several occasions saying, ‘You are going to lose your money.’ And she said she was aware of it. And within a few days, why, we ended up with an agreement that I would take care of the money as I saw fit. Specifically, I think that we discussed loaning it to Weber and somebody else that I can’t think of and we did not loan it to. And that I was supposed to do with the money as— as I saw fit and make it go as long as possible. “We especially were stressing it with her that she did not have enough money to last her but a few years.” Richard Wilson testified: “It finally was settled that the money would be retained, that she would receive so much a month out of this money, and I think it was $250. I am not sure. He (Respondent) would keep the rest of it and take care of it for her as he saw fit. There weren’t strings on it, but if it could be invested, it would be invested. If it couldn’t be, why, he would keep it. He would do the best with it that he could see to do with it for her benefit. * * * ” The money was lent to Joe Weber, which required a lawsuit to collect. There was collected from Weber $9,663.83, which included interest and attorney’s fees. The testimony of the Respondent was that Mrs. Counter had left the State, and that he did not have her address until a letter came to liim from Hawaii. He also states there was a complete settlement between himself and Mrs. Counter at the time that he received the sum of $32,500. After deducting the attorney’s fees and costs it left a balance of $21,564.97 belonging to Mrs. Counter, and had she wanted the money she could have had it. He would have been guilty of a violation of Canon 11 and § 32-267, A.R.S., had he refused to deliver the money, but, instead, the agreement was worked out which changed the relationship to that of debtor and creditor. There was a complete accounting to Mrs. Counter after the collection of the money from Joe Weber. The accounting filed by Respondent shows: Paid out to or for the account of Elizabeth Counter $25,648.35 Recovery — Bates v. Greyhound $32,500.00 Attorney fees and costs 10,955.97 Recovery — Bates v. Weber 9,663.83 Attorney fees to H. Mallamo 1,500.00 Costs 58.30 $42,163.83 $38,142.62 Balance 4,021,21 $42,163.83 The accounting discloses that at the time Mrs. Counter complained to the State Bar of Arizona there had already been paid to and for her account $25,648.35. The Weber judgment was paid in 1966. The Respondent reimbursed himself for the amount which he had expended out of his personal account in excess of the $21,564.-97, and retained the balance of $4,021.21 for transmittal to her when her whereabouts could be ascertained. He testified that shortly after he learned of Mrs. Counter’s whereabouts and on September 17, 1969, his attorney sent to Mrs. Bates [Counter] the sum of $4,373.02. Elizabeth Bates [Counter] made an affidavit which was filed with the Court as follows: “ELIZABETH M. BATES, also known as BETTY BATES, being first duly sworn,on oath, deposes and says: “1) I reside at 918 Hikina Lane (Apt. 3), Honolulu, Hawaii 96817, and I left Phoenix, Arizona, in approximately 1962. “2) In 1959 or 1960 when my case against Greyhound was settled, I voluntarily left my settlement money with W. Francis Wilson, Esq., with instructions to do with it as he saw fit for my own protection; he was to.-send me the sum of $125.00 on the first and $125.00 on the fifteenth of each- month, and to pay additional amounts if in his discretion he thought it advisable. “3) I left the Blaisdell Hotel in Honolulu in approximately 1964 and did not contact Mr. Wilson thereafter to give him my address or. to keep in contact with him; I had earlier been contacted by Mr. Weber to make a complaint against Mr. Wilson but I wanted no part of such a thing. “4) I have written letters to the Supreme Court of Arizona and to the President of the Bar Association of Arizona which state the complete background of this matter, and those letters and this Affidavit are voluntary on my part. “5) I have no quarrel with Mr. Wilson and desire that any proceedings against him be dismissed. (signed) Elizabeth M. Bates “Subscribed and sworn to before me • this 29th day of December, 1969. (Signed Nancy Y. Okazaki Notary Public, First Judicial Circuit, State of Hawaii My commission expires: 9-9-71” . She evidently thought that the letter she wrote to the State Bar Association would assist her in getting money — not result in a complaint against the Respondent. She said in her letter to this Court that Joe Weber contacted her urging her to make charges against Francis Wilson, but that she would have no part of it. The affidavit and letter were both filed with the Court after the recommendations were made by the Bar Association. The affidavit and the letter corroborate the testimony of the Wilsons. Again we note that the Bar Association did not have the benefit of this affidavit and letter at the time it made the recommendations. We would not be justified in finding that the evidence was “clear and convincing” in Count I that the Respondent violated the Code of Ethics and § 32-267, A.R.S. COUNT TWO Count II arose out of the handling of a divorce proceeding in which the Respondent represented Mrs. Gladys Porter. The recommendations of the Board of Governors under Count II are based on the following statement set forth in its brief: “Respondent was employed, prior to 1959, as an attorney by Mrs. Gladys Porter to represent her in connection with separate maintenance and divorce litigation against her husband in Arizona and Idaho. During the involved course of litigation in May 1960, respondent prevailed upon Mrs. Porter to convey to respondent a one-half interest in certain real property and a building known as the Arizona Hotel located in Phoenix, Arizona. That Mrs. Porter understood that such conveyance was to be in trust for the protection of her rights when in fact the conveyance was by quit claim deed to respondent. “That between November, 1962, and May, 1964, the aforesaid Arizona Hotel was operated under a receivership under the jurisdiction of the Superior Court of the State of Arizona in and for the County of Maricopa. That during said period respondent was attorney both for Mrs. Porter and the receiver and during said period applied for and received fees as attorney for the said receiver. “That during the said period respondent, acting as attorney for Mrs. Porter, petitioned the said Court to have the receiver pay to Mrs. Porter the sum of $1,000.00 each month for her' support and maintenance and for child support. He intentionally and deliberately deceived and misled the court in representing that these funds were in fact necessary for the support and maintenance of Mrs. Porter and for child support when in truth and in fact it was his intention to appropriate a portion of said funds for his own use. That pursuant to said petition and during the aforesaid period the sum of approximately $22,000.00 was paid by the receiver to respondent on behalf of Mrs. Porter. That respondent diverted approximately one-half of said sum to his own use. That respondent intentionally and deliberately misled and deceived the court in filing periodic accountings for the said funds in that the said accountings represented to the court that the said sums were received and expended for the support and maintenance of Mrs. Porter and for child support. That at various times Mrs. Porter requested an accounting of said funds and respondent failed and refused to provide such an accounting. “That respondent commingled part of said funds with his own assets and funds.” (Findings of Fact and Recommendation, Board of Governors of the State Bar of Arizona, January 4, 1969) The first part of the allegations of Count II pertain to a quit-claim deed for an undivided one-half interest to W. Francis Wilson and Richard A. Wilson. Mrs. Porter testified that she signed a deed with the intent that it was in trust. The litigation on the Porter matter was long and involved, the history of which may be found in Porter v. Porter, 1 Ariz.App. 363, 403 P.2d 298, vacated, 101 Ariz. 131, 416 P.2d 564; Kemble v. Stanford, 86 Ariz. 392, 347 P.2d 28; Porter v. Stanford, 86 Ariz. 402, 347 P.2d 35, cert. den. 371 U.S. 829, 83 S.Ct. 23, 9 L.Ed.2d 66; and Kemble v. Porter, 88 Ariz. 417, 357 P.2d 155. Gladys Porter had been referred to W. Francis Wilson by an attorney in Los Angeles, Gerry Giesler, with whom he had done legal work in the State of Arizona and she had come from California to Arizona for the reason that her attorney thought there was tangible property in Arizona from which a separate maintenance award could be collected. Suit was brought, and judgment entered, awarding Gladys Porter a lien on the Arizona Hotel. On July 25, 1959, the trial court entered a judgment determining that the arrearage due under the separate maintenance judgment to be $31,500, and a levy was made to satisfy the judgment. A sheriff’s sale was held on August 20, and all of Mr. Porter’s interest in the hotel was sold to Gladys who received a sheriff’s deed April 7, 1960. The judgment of $31,500, for which the Arizona Hotel was sold at sheriff’s sale, included $15,000 attorneys’ fees to Respondent and his associate, Richard Wilson. Eleven days after the Arizona separate maintenance judgment was ordered Arnold Porter, husband of Gladys, sued her for divorce in Idaho. She answered, seeking full faith and credit for the Arizona judgment, and participated in the Idaho proceedings. On December 28, 1960 — nearly seventeen months after Gladys bought Arnold’s interest in the Arizona Hotel at the sheriff’s sale and ten months after she obtained the deed thereto — the Idaho court refused to give the Arizona judgment full faith and credit. Furthermore, the court found that the Arizona Hotel was owned by a partnership in which Gladys and Arnold had a community property interest. Arnold Porter was awarded all the community property interest in the hotel, and Gladys was given ten days in which to execute and deliver unto Arnold a transfer and conveyance of all right, title, interest and equity that she had in those properties known as the Arizona Hotel. Pursuant to this order she executed a quit-claim deed conveying her interest in the hotel to Arnold. However, prior to that date, and about a month after Mrs. Porter received the sheriff’s deed, she executed and delivered to Respondent and Richard Wilson a quit-claim deed conveying to them an undivided one-half interest in and to the hotel property. It was this deed that she contended was issued in trust, and so testified at the hearing. Both W. Francis Wilson and Richard Wilson testified to the contrary — namely, that it was in payment for attorneys’ fees which was approximately half the judgment. In this there was a direct conflict in the evidence. The deed did not state that it was issued in trust, but was a quitclaim deed for an undivided one-half interest in the property. According to the testimony of Gladys Porter, while in Idaho in May 1960, at a hearing on the divorce case, she was called to the Wilsons’ motel room; that there were present David Doane, the Idaho counsel, Francis and Richard Wilson; and she said that they told her: “ * * * that the way the picture was at the present time, the way the difficulties had come up and how Mr. Porter had transferred his assets and was crying poor mouth and had nothing, and the way his influence was there in Idaho, and even to the extent where they had permitted him to go into my personal safe deposit box and remove the children’s bonds and everything, that it would be best for me to transfer my interest in the hotel, and for Mr. Wilson, Francis Wilson to hold in trust, and that for me in the morning to go over with Mr. Doane and have it recorded as a trust deed.” Gladys Porter wrote a letter to Francis and Richard in explanation of a statement she had made in regard to the deed as follows: “Dear Francis and Richard, “Mailing the recent news item that may interest you. No need to tell you of the . reaction of my public so in reply to a few close friends who called me I told them that I did not sign a deed of Arizona Hotel to you, but made you a third party to protect my interest from George Kemble and the Porter sisters’ actions to obtain the property. Also called David Doane for a better statement when pressed and find out the progress he had made in enforcing that granted to me by Idaho court.” Summing up the evidence, both Francis and Richard Wilson testified that the deed was given in payment of their attorneys’ fees. The $32,500 judgment was almost fifty per cent attorneys’ fees and fifty per cent for the support of Mrs. Porter and children. It was a quit-claim deed for an undivided one-half interest in the property. Mrs. Porter admitted: “ * * * it appeared to be a quitclaim deed to an undivided half interest in the hotel.” The deed was given during the trial in Idaho with the probability that the court there would not give full faith and credit to the judgment of the Arizona court, under which the property was sold. This evidence would indicate, at the most, a misunderstanding by Mrs. Porter rather than a misrepresentation by the Respondent. She had been, according to her testimony, under tremendous strain. The attorneys were working under a contingent fee and could hardly be blamed for trying to protect themselves in this long litigation. This Court is therefore unable to find that the evidence was “clear and convincing” that the deed was given in trust rather than for the purpose of conveying an undivided one-half interest in the property to the Respondent and Richard Wilson. The next question presented under Count II was whether the Respondent “intentionally and deliberately deceived and misled the court in representing that these funds were in fact necessary for the support and maintenance of Mrs. Porter and for child support. * * * ”; also whether the Respondent mishandled the funds that were paid, and failed to make proper accounting. The order of the court to which the Board of Governors refers reads as follows: “UPON READING plaintiff’s verified petition, “IT IS ORDERED that the receiver pay to W. FRANCIS WILSON, as attorney for plaintiff, GLADYS E. PORTER, the sum of Three thousand dollars ($3,000.00) forthwith to apply upon judgment for support and alimony, and “That the receiver pay to W. FRANCIS WILSON, as attorney for GLADYS . E. PORTER, the sum of One thousand dollars ($1,000.00) on the first day of March, 1962, and the sum of One thousand dollars on the first day of each month thereafter until the further order of this Court.” The order was based upon the affidavit of W. Francis Wilson which reads as follows: “STATE OF ARIZONA ss County of Maricopa W. FRANCIS WILSON, being first duly sworn upon oath deposes and says: “That he is one of the attorneys for the plaintiff. That heretofore and in the above entitled matter on the 14th day of May, 1959, there was awarded to plaintiff a decree of separate maintenance with a provision for the support of the plaintiff and the minor children of the parties hereto. That notwithstanding the execution? sale upon the Arizona Hotel there remains unpaid upon said decree a sum in excess of Nineteen thousand dollars ($19,000.00). “That heretofore and on or about the 28th day of December, 1960, in the District Court of the Eighth Judicial District of the State of Idaho, in and for the County of Kootenai in Cause No. 18556-A there was awarded to the plaintiff for her support the sum of Twelve hundred dollars ($1200.00 per month and the sum of Two hundred dollars ($200.00) per month for the support of the minor child, TOM CLARK PORTER, together with the sum of Twelve thousand dollars ($12,-000.00) for GLADYS PORTER’S attorneys fees and that there has accumulated under said judgment in excess of Thirty two thousand dollars ($32,000.00), not one cent of which has been paid. “That defendant, WILLIAM ARNOLD PORTER is within the jurisdiction of this Court and has failed, neglected and refused to pay anything for the support of the plaintiff or the minor child of the parties hereto, notwithstanding the judgements above referred to. “That the receiver in cause #55179 has heretofore been odered to pay to GLADYS PORTER for her support the sum of One thousand dollars ($1,000.00) per month. That no amount of money has been paid since on or about th,e 22nd day of November, 1961. “That GLADYS PORTER is without funds or other means of support for herself and her minor child. “Further, affiant saith not. “ s/ W. Francis Wilson W. FRANCIS WILSON Attorney for GLADYS PORTER” Gladys Porter employed independent counsel, Robert Allen, who went over the whole transaction, including the accounting, and compared the items with the cancelled checks, the signatures on the checks, after which, she testified, she discussed the matters contained in the account. After discussing these things she wrote a letter of explanation dated October 6, 1967. The letter was addressed to the State Bar as follows: “In July 1965 I filed a complaint with the State Bar of Arizona against W. Francis Wilson alleging in substance that he had been dishonest in accounting to me for my money and that he had been guilty of overreaching in securing from me a deed to himself and his nephew for a one-half interest in the Arizona Hotel. “In July 1965 it was still doubtful whether the courts would rule that I or my husband owned the Arizona Hotel and it has only recently been resolved, after the United States Supreme Court denied certiorari, that I owned the hotel. “Thereafter Mr. Wilson made a detailed accounting to me and to Robert H. Allen (my attorney in this matter since 1965) of the financial affairs between the two of us and further made available to me and to Mr. Allen the cancelled checks and records which were the basis for the accounting. "As a result of the accounting made hy Mr. Wilson and investigation by myself and Mr. Allen, I have come to the conclusion that Mr. Wilson was not dishonest concerning the financial transactions. His acquisition, with his nephew Richard, of a one-half interest in the Arizona Hotel, when it is considered as a fee which was totally contingent at the time of the acquisition, is not, in the opinion of Mr. Allen, unreasonable. Although the charges I made against Mr. Wilson zoere made in good faith, I believe nozv that he zoas mainly guilty in failing to keep me better informed and advised of our relationship. At the same time, I believe Mr. Wilson is to be commended for the stubborn tenacity he displayed through nine years of litigation zvhich zvill nozv, apparently result in the recovery of something for me. “Under the circumstances I believe you would be justified in dismissing the charges against Mr. Wilson. I thank you for your trouble and I apologize for the time I have cost you.” (emphasis supplied) While the record shows that Gladys Porter testified that she was under the impression she did not get all of the payments, the record also shows that she went over the accounting very carefully with her attorne)- — before writing the letter stating that “ * * * As a result of the accounting made by Mr. Wilson and investigation by myself and Mr. Allen I have come to the conclusion that Mr. Wilson was not dishonest concerning the financial transactions; also that his acquisition with his nephew, Richard, of a one-half interest in the Arizona Hotel when it was considered as a fee which was totally contingent at the time of the acquisition is not, in the opinion of Mr. Allen, unreasonable.” She summed the situation up in her statement in the testimony as follows: “A It is so much easier now since I have been to Mr. Allen and have discussed everything and he gave me detailed accounting and explained things and now that the courts have finally ruled on all these different — it’s so easy to look back, and I admire Mr. Wilson very much for what he has done in some things, and has been willing to answer all of Porter’s actions. “In fact, Mr. Porter has an action against me now for fraud for $800,000, for giving that deed to Mr. Wilson. “Q In other words, you agree that it took some courage upon Mr. Wilson’s part to fight Mr. Porter over the years? “A Yes, it did. “Q He [Porter] was a violent 'man? “A That is very true.” Gladys was unable to point out any particular item in the account that she had not received. She admitted in her testimony that payments were made to her — for example, in 1960, she admitted that she did get $1,000 checks from the receiver while she was in Spokane. There were other times she admitted getting checks. She was unable to point to any particular item that she did not receive. She testified she was just under the impression she did not get that much money. She said: " * * * those were rough years and that’s wh3r I feel I didn’t get those amounts — ” It is understandable that Gladys was unable to remember specific items. There was a long series of lawsuits. Her troubles first started in California. She had a lawyer there who was evidently unable to secure the proper support for her and sent her to Arizona. The Respondent represent ed her throughout these years. She had friends suggest to her, as stated in her testimony, that she should be getting regular payments. There was pressure upon her over a protracted long litigation which eventually ended by the denial of certiorari in the United States Supreme Court. She was afraid of her husband, and she testified she leaned heavily upon Francis Wilson in this litigation. The record shows that she had the utmost confidence in him, and in his ability to fight her husband in these lawsuits. The record shows also she was without funds, except as the Respondent was able to secure funds for her from rentals of the hotel. The record shows that part of the time the hotel was running in the red. This strain upon her continued until the time that the lawsuit was eventually settled by the Supreme Court of the United States. She secured her own additional counsel, Mr. Robert Allen, who counselled with her in regard to the situation, and, after going over all of the records, she was satisfied she had made a mistake in making the charges she did against Mr. Wilson’s honesty. In regard to the accountancy as to whether the Respondent made proper accounting to her, the record indicates he accounted to her at the different times he received checks. After the final account checked by her and her attorney she said: “I have come to the conclusion Mr. Wilson was not dishonest concerning the financial transaction.” For this Court to find that the Respondent was guility of unethical conduct, it would have to ignore the letter that was written and signed by Gladys Porter, which was written with the advice of her own counsel. Under this state of the record we are unable to say the allegations are proven by “clear and convincing” testimony. The complaint and the testimony of Joe Weber as to the handling of the Porter matter was an allegation that Wilson sold to Weber one-third of Mrs. Porter’s interest in a Dallas hotel to finance a lawsuit. However, the recommendation was made by the investigator that “ * * * Since in Mr. Wilson’s view he owned one-half of the proceeds of the Porter litigation, it does not appear out of line for him to arrange an agreement to sell a fractional interest in the property to one who would finance litigation necessary to preserve it. “RECOMMENDATION. The incident does not appear serious enough to merit action by the Bar Committee.” In view of the fact that the Bar Association did not base any recommendations on this transaction, it is not necessary for us to discuss further Weber’s testimony in this regard. Mrs. Porter testified as to many suggestions made to her during the course of the handling of this transaction. These may have added to the pressures she endured in regard to her many lawsuits, but added nothing to the facts supporting the charges. As we pointed out, the question of the propriety of the Respondent’s method of handling the funds in the Counter case turns on the existence of the debtor-creditor relationship. The matter of handling the money thereafter is immaterial to the charge. The record shows that the Respondent did deposit drafts which included money for his own fees in his trustee'account, and that he later drew his share out by writing checks both to himself and others. These are not a part of the charges before us, and hence are not material to our holding. We do feel that we must state that the use of a trustee account for personal funds is not proper, and this decision should not be construed as condoning such conduct. The charges against the Respondent are hereby ordered dismissed. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and HAYS, JJ., concur. . Dec. 26 ’69 Honolulu, Hawaii Supreme Court, State of Arizona, Capitol Bldg., Plioenix, Ariz. Dear Sirs: I have just found out that the State Bar lias recommended to the Supreme Court that Francis Wilson be disbarred for what he did to me. I had no idea that my letter written at the suggestion of the legal aid here in Honolulu would cause any such amount of trouble. The Wilsons are an old respected family and my friends, and they don’t deserve to be treated like this for anything that Francis did to me. We agreed that he would keep the money from the Greyhound settlement and handle it as lie saw fit, and send me $250 a month — $125 on the 1st and 15th. He was only to send additional money when he believed it to be in my best interest. We quarreled over the phono as to just which was in my best interests. He thought he was protecting mo in making my money last longer and ho probably was. I never asked for an accounting until the legal aid suggested it. In 196-1 I ran out of money, and was told the suit against Weber was in Supreme Court. I moved from the Hotel where I was living and went to work for one year, then drew unemployment for a year, and when I became 60 years old in May 25, 1967, I was able to start drawing Soc. Sec. disability thru my deceased husband, Clifford Bates. In tile meantime I liad been contacted by Joe Weber, to make charges against Francis, but I would have no part of any of it. When Francis found out my address from my son he paid me more money than I liad given him. I want you to withdraw your recommendation to the Court, and leave those people alone. Drop the matter entirely. The newspaper lias already gotten everyone talking ns though he liad done something bad. Sincerely, /s/ Elizabeth (Betty) Bates 918 Hickman Lane, Apt. 3 Honolulu, Hawaii 90817

OPINION O’CONNOR, Presiding Judge. The issue presented in this Industrial Commission special action is whether the administrative law judge was correct in determining that petitioner had no residual permanent impairment, physical or mental, attributable to a second industrial injury to his right wrist. We conclude that the findings and award are reasonably supported by the record and affirm the award. The pertinent facts are not in dispute. On December 23, 1974, petitioner suffered an industrial injury to his right wrist which was fractured when caught in the rollers of a printing press while petitioner was working as a lithographic pressman for a previous employer. After a lengthy healing process, interrupted by additional injuries to the wrist which were not related to petitioner’s employment, a notice of claim status was issued by employer’s insurance carrier on August 15,1977, finding petitioner’s condition to be stationary. The notice, which was based upon a report by Robert Wilson, M.D., terminated temporary benefits and found that petitioner had sustained a 40% permanent impairment of the right major arm, a scheduled injury. Petitioner was released for work. He found employment with the respondent employer, Graphic Dimensions, as a lithographic pressman in September, 1977. On September 14, his first day at work for the respondent employer, petitioner lifted a packet of paper weighing ten to twenty-five pounds and felt a snap in his wrist. He was unable to continue work and reported the injury to his employer, respondent Graphic Dimensions. The attending physician determined that his right wrist had been refractured along the original fracture line of the prior December 23, 1974 injury. On October 18, 1977, respondent insurance carrier, State Farm Fire and Casualty Company, issued its notice of claim status denying petitioner’s claim for benefits as to his second employer, taking the position that at the time of the second injury, his condition in relation to the first injury had not become stationary. A timely request for hearing was filed protesting the October 18, 1977, notice of claim status. In the interim, on September 15, 1977, petitioner filed a request for hearing as to the first insurance carrier’s August 15,1977 notice of permanent disability alleging that because of a prior industrial injury in 1946, the December 23, 1974 injury should be treated as an unscheduled injury. In addition, on December 15, 1977, petitioner filed a petition to reopen the December 23, 1974 claim, but this petition was not administratively processed because the claim, as a result of the request for hearing, was considered open. Consolidated hearings were then held. On March 17, 1978, the administrative law judge issued a consolidated award determining first, that the notice of permanent disability issued August 15, 1977, as to the December 23, 1974 injury was defective insofar as it awarded petitioner a scheduled disability. It was determined that as a result of the two scheduled industrial injuries occurring in 1946 and 1974 petitioner had sustained a physical functional disability of the whole man, and thereby sustained an unscheduled permanent partial disability. Ronquillo v. Industrial Commission, 107 Ariz. 542, 490 P.2d 423 (1971). The determination of loss of earning capacity was deferred to later proceedings in accordance with A.R.S. § 23-1047. The award further determined that the December 23, 1974 injury had become stationary, and that the September 14, 1977 accident was a new injury and was the responsibility of the second employer and its insurance carrier. The award was affirmed at the administrative level, and a petition for special action was filed in this court by Graphic Dimensions and State Farm Fire and Casualty Company challenging the new injury determination. The award was affirmed by this court’s memorandum decision filed June 26, 1979. (1 CA-IC 2038) As to medical benefits and temporary disability resulting from the September 14, 1977 injury, respondent insurance carrier paid benefits until a group medical consultation report dated July 11, 1979 was filed stating that petitioner’s condition had become stationary, and that there was no permanent impairment exceeding the 40% functional loss of the right major arm as previously rated by Dr. Wilson in his report of August 10, 1977. However, the report went on to state that it was the opinion of the physicians that the petitioner was not able to return to work as a pressman or any other type of occupation that requires hard physical work with the right upper extremity. This position was reiterated by one of the physicians, John H. Ricker, M.D., at the later hearings. Based upon the group consultation report, respondent insurance carrier issued its notice of claim status on July 26, 1979, terminating temporary compensation and medical benefits and finding that petitioner had sustained no permanent disability as a result of the September 14, 1977 accident. Petitioner filed a timely request for hearing. At the hearing, petitioner testified that because of the recent injury, in combination with the previous injuries, he was afraid to return to work as a pressman. This fear of returning to work was described by Dr. Ricker as a natural fear resulting from the physiological condition of his arm. No evidence was presented by either a psychiatrist or psychologist indicating that petitioner suffered any mental condition apart from the fear described as a natural fear related to his bodily condition. On April 22, 1980, the administrative law judge issued his decision upon hearing and findings and award for temporary disability. In pertinent part, the findings were as follows: The medical evidence is uncontroverted that applicant’s condition referrable [s/c] to his industrial injury of September 14, 1977, was stationary as of July 11, 1979. The medical evidence is further uncontroverted that applicant sustained no additional physical functional permanent impairment as a result of his industrial injury of September 17 [s/c], 1977. He had a 40% functional loss of use of right major arm following closing out of a pri- or industrial injury and in 1979 the impairment to his right major arm did not exceed such rating. Although applicant testified that he no longer works as a pressman because of the possibility of reinjury, in the absence of additional permanent physical functional impairment attributable to his 1979 injury, applicant sustained as a consequence no additional permanent disability. Applicant has sustained no permanent physical or mental disability attributable to his industrial injury of September 14, 1977. After petitioner’s request for review at the administrative level was denied, a petition for special action was brought in this court. In his opening brief, petitioner presents the question on appeal as follows: When an employee reinjures himself and has a reasonable fear of returning to work as a result of the original injuries and the subsequent injury, does such fear constitute an additional disability attributable to the subsequent accident? Petitioner cites Arizona case law for the general proposition that disabling mental conditions which are shown to be causally related to an industrial injury are compensable because they fall within the purpose of the Arizona Workmen’s Compensation Act, A.R.S. § 23-901 et seq., which is to compensate for losses of earning capacity resulting from an industrial injury. Next, petitioner points to the fact that because of his fear of using his arm in physical labor, he cannot return to his former occupation as a printer/press operator and therefore has an increased disability or loss of earning capacity. Petitioner concludes that because the fear is partially related to the September 14, 1977 injury, the respondent employer and insurance carrier should be responsible for the enhanced disability. He asserts that his fear of reinjury of the arm if he returns to work is a compensable mental or psychic condition or disability. It is true that an industrially-related disabling mental condition may be compensable. A.R.S. § 23-1043.01; see, e. g., Homack v. Industrial Commission, 18 Ariz.App. 598, 504 P.2d 539 (1972). However, in mental cases as in all other workmen’s compensation claims, the claimant bears the burden of establishing all material elements of the claim. Reynolds Metals Co. v. Industrial Commission, 119 Ariz. 566, 582 P.2d 656 (App.1978). “The test of a compensable mental injury does not require a particular physical manifestation of the psychiatric condition but only that the condition impairs the employee from functioning in the job setting.” State Compensation Fund v. Industrial Commission, 25 Ariz.App. 316, 320, 543 P.2d 154, 158 (1975). All the parties here agree that petitioner’s physical condition prevents his return to his former employment. However, there was no medical testimony or evidence that petitioner’s mental condition in itself impairs his ability to function. Instead, the only medical testimony was that the fear was reasonable and natural, considering the repeated injuries to the arm and the medical advice not to return to work because of the substantial risk of rein-jury. There was no medical testimony or other evidence that petitioner’s fear is an abnormal mental, emotional, psychotic or neurotic injury, illness, or condition. A.R.S. § 23-901(10); see, e. g., Industrial Commission v. Saffeels, 150 Colo. 41, 371 P.2d 438 (1962); 1 B. A. Larson, The Law of Workmen’s Compensation, § 42.22 at 7-597 (1980). Cf. Higgins v. Industrial Commission, 16 Ariz.App. 136, 491 P.2d 1138 (1971) (in which medical testimony failed to establish psychiatric impairment in addition to physical disability). Natural and normal fear which is not disabling in itself is not a compensable condition. By failing to present any evidence that the petitioner’s fear itself was abnormal or disabling, petitioner did not meet his burden of proof. Thus the administrative law judge’s findings and award were correct. We recognize that petitioner’s situation is different now than it was before the September 14,1977 injury, in that he had previously been released to work as a pressman, whereas now the medical experts would advise him not to return to such work. However, his physical condition, including the risk of reinjury, and his reasonable fear of returning to work may be considered in the determination of petitioner’s earning disability in relation to the December 23, 1974 claim. Kucko v. Industrial Commission, 116 Ariz. 530, 570 P.2d 217 (App.1977). We also note that petitioner might have been able to establish that his risk of reinjury was itself an impairment of the whole function of the body justifying a permanent unscheduled physical disability award under the rationale of Langbell v. Industrial Commission, 111 Ariz. 328, 529 P.2d 227 (1974). Langbell was followed in Espey v. Industrial Commission, 121 Ariz. 289, 589 P.2d 1321 (App.1978), which was factually similar to the case at bar. The transcript of the most recent hearing in this case shows that the administrative law judge mentioned Lang-bell, but the petitioner failed to present this argument either at the administrative level or before this court. Therefore we cannot decide the case on this basis. We are aware of the recent amendment of A.R.S. § 23-1044(H) which appears to legislatively overrule Langbell and Espey, at least insofar as those cases converted an otherwise scheduled disability into an unscheduled one. However, the amendment did not become effective until July 31,1980, after the April 22, 1980 award here challenged. The award is affirmed. WREN and FROEB, JJ., concur. . A.R.S. § 23-1044(H) reads as follows: Any single injury or disability listed in subsection B of this section which is not converted into an injury or disability compensated under subsection C of this section by operation of this section shall be treated as scheduled under subsection B of this section regardless of its actual effect on the injured employee’s earning capacity.

CAMERON, Justice. We accepted this petition for special action pursuant to Art. 6, § 5 of the Arizona Constitution and Rule 1, Rules of Procedure for Special Actions, 17A A.R.S. to determine whether Rule 32.5(b) of the Rules of Criminal Procedure, 17 A.R.S., requires the appointment of counsel when requested by an indigent defendant because of the importance of the question in the determination of post-conviction matters and because there is no equally plain, adequate, or speedy remedy by way of appeal. The facts necessary for a determination of this matter are as follows. On 19 January 1981, defendant, a prisoner in the Arizona State Prison, filed a petition in the Pima County Superior Court for post-conviction relief pursuant to Rule 32 of the Rules of Criminal Procedure, 17 A.R.S., alleging various defects including denial of a speedy trial and excessive sentence. Defendant requested appointment of counsel, and in his petition to this court alleges an affidavit of indigency. The State filed an opposition to the petition for post-conviction relief and moved for summary dismissal in the trial court. The State’s motion was based upon the failure of the defendant to “strictly” comply with provisions of Rule 32, supra, and further that the defendant knowingly and voluntarily entered into a plea agreement, that he waived any question in regard to his right to a speedy trial, that the trial court did not abuse its discretion in sentencing, and that defendant could have raised these issues in a timely appeal. In the response to the petition for special action to this court, the State also raises jurisdictional, procedural, and evidentiary objections to the acceptance by this court of the petition for special action. As to the right to counsel in criminal matters generally, Rule 6.1(b) of the Rules of Criminal Procedure, 17 A.R.S., reads as follows: “b. Right to Appointed Counsel. An indigent defendant shall be entitled to have an attorney appointed to represent him in any criminal proceeding which may result in punishment by loss of liberty and in any other criminal proceeding in which the court concludes that the interests of justice so require.” If we assume, for the purposes of argument, that the instant case does not involve proceedings in which punishment by loss of liberty may result, the defendant already being deprived of his liberty, then the discretionary portion of the rule allowing the appointment of counsel only when the “court concludes that the interests of justice so require” would apply, and we would be required to determine only whether “the interests of justice” required the appointment of counsel in this case. Rule 32, supra, however, contains a specific provision for the appointment of counsel in post-conviction matters. Rule 32.5(b) reads as follows: “b. Appointment of Counsel. If the petitioner desires appointed counsel, he shall complete, under oath, the questionnaire required under Rule 6.4(b), whereupon the court, if satisfied that he is indigent, shall appoint counsel who may file an amended petition within 15 days of appointment.” It would appear that the general provision of Rule 6.1(b) regarding appointment of counsel is in conflict with the provisions of Rule 32.5(b) which specifically requires the appointment of counsel in post-conviction proceedings. There being a conflict in the rules, the specific will prevail over the general, State v. Davis, 119 Ariz. 529, 582 P.2d 175 (1978), and Rule 32.5(b) is controlling. Rule 32.5(b) is mandatory. It says that “the court, if satisfied that he is indigent, shall appoint counsel * * (emphasis added) A review of the proceedings here indicates the wisdom of this rule. The opposition to the petition for post-conviction relief and motion for summary dismissal in the trial court, for example, asks that the court deny petitioner’s request that he be granted relief from imposition of an excessive sentence because “Petitioner does not contend that the sentence imposed exceeded the maximum authorized by law.” It may well be that the defendant, in his inartful way, is contending just that. Not knowing the subtleties of the law or the pleadings under the Rule, defendant is at a definite disadvantage in presenting his case. Not only the defendant but the court can be assisted by having counsel present this matter to the court. If the defendant is found to be indigent, as most prisoners are, Rule 32.5(b), supra, requires that counsel be appointed. Relief granted. Remanded for the appointment of counsel and the hearing on the petition for post-conviction relief. HOLOHAN, V. C. J., and HAYS and GORDON, JJ., concur.

LOCKWOOD, Chief Justice: Appellant (hereinafter referred to as defendant) was convicted below of first degree rape, with a prior conviction. He was sentenced to a term of not less than twelve nor more than fifteen years, the minimum sentence with a prior conviction being ten years. He appeals, claiming insufficiency of the evidence, prejudicial remarks by the trial judge and the prosecuting attorney, and erroneous instructions to the jury. The facts adduced at trial, taken in the light most favorable to sustaining the verdict (State v. Bearden, 99 Ariz. 1, 405 P.2d 885 (1965)) are the following. At the time of the incident the prosecuting witness was eighteen years old and had just graduated from high school. The defendant was twenty years old, newly married and the father of a week-old baby. The defendant and prosecuting witness had dated each other prior to his marriage. On the afternoon in question, the defendant was driving his Volkswagen automobile near the home of the prosecuting witness when a girl friend of the latter stopped him. The prosecuting witness asked the defendant to take her girl friend home, and both girls entered the automobile. After delivering the girlfriend to her home, the defendant and the prosecuting witness decided to go to the Village Inn Pizza Parlour for a Coke, where they were refused service because the prosecuting witness was barefoot. They then went to a liquor store where the defendant purchased a six-pack of beer. The two then went to an isolated spot on the desert to drink, driving past the home of the prosecuting witness. The two young people sat in the defendant’s automobile drinking beer and • talking. When the radio mentioned the time the prosecuting witness said that she had to go home. The defendant then told her she was not going home yet and threatened her with a hammer until she was “real scared”. The defendant tore off her clothing and started to rape her in the car. He then dragged her out of the car, placed her upon a cushion and completed the act of sexual intercourse. The prosecuting witness attempted to resist, but was subdued by the defendant’s threats. The defendant is a large man, over six feet tall. The defendant drove the prosecuting witness home, making her promise not to tell. The defendant dropped the prosecuting witness off on the corner near her home, but she went instead to her girl friend’s home. Her mother was called immediately, and went over to find the prosecuting witness “crying and all upset”. When her mother asked her why she was upset, she answered that she had been raped. Her mother and stepfather took her to the hospital, where she was examined by a doctor who testified at trial. He stated that his examination showed that she had had intercourse recently and that she had a few scratches. He testified that his examination led him to believe this was probably her first act of intercourse. The prosecuting witness testified that the incident in question was her first act of intercourse. Defendant tells a different story, claiming the prosecuting witness consented to have sexual intercourse with him. Defendant contends the above evidence is insufficient to support a verdict of guilty. However, we have consistently held as long as there is substantial evidence to support the verdict, this Court will uphold it. We hold there was sufficient evidence to sustain the verdict. Defendant further complains that there is no evidence to corroborate the testimony of the prosecuting witness, asserting that her testimony alone is insufficient to support a verdict of guilty. We disagree, A conviction of rape may be had Upon the testimony of the prosecuting witness alone. State v. Scott, 105 Ariz. 109, 110, 460 P.2d 3 (1969); State v. Pollock, 57 Ariz. 415, 114 P.2d 249 (1941); Curby v. Territory, 4 Ariz. 371, 42 P. 953 (1895). On the last day of trial, one of the defendant’s witnesses, his wife, was late for trial. In the presence of the jury, the trial court ordered her to be present at a contempt hearing that afternoon. (Her excuse, transmitted through a bailiff, was that she could not find a baby-sitter. The jury apparently heard the judge mention this.) The defendant complains that this caused, the jury to believe that the trial court, viewed his witness with disfavor. He bases his argument on the landmark case of State v. Swink, 151 N.C. 726, 66 S.E. 448 (1909). In that case, however, the trial judge, in the presence of the jury, ordered the arrest of defendant’s key witness for perjury. That, in effect constituted a comment on the credibility of the witness, which is a matter strictly within the province of the jury. We are of the opinion the act of the court here does not fall within the same category. Here the trial court only stated that a contempt hearing would be held because the witness was late. He made no reference to her credibility. We cannot say it was prejudicial error. Defendant next contends that the prosecuting attorney’s remarks in closing argument so prejudiced him that he was not afforded a fair trial. The prosecutor argued that the defendant had made his account of the facts fit with testimony given by the other witnesses. The defendant did not object to these comments at trial, which would preclude him from objecting to them on appeal; State v. Hannon, 104 Ariz. 273, 451 P.2d 602 (1969). However he asserts that rape cases are an exception to this rule, and that the remarks constituted an improper comment on his Sixth Amendment rights. We do not agree. These remarks alluded to the presence of the defendant which defense counsel alleges is prohibited in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Griffin is not applicable because in that case, the prosecutor commented on the fact the defendant had not taken the stand, to deny his guilt. Here the defendant did testify, and the prosecutor was not precluded from commenting on defendant’s testimony. Attorneys have wide latitude in their remarks to the jury, provided they are supported by the evidence. State v. Hannon, supra; State v. Neil, 102 Ariz. 299, 428 P.2d 676 (1967). There is no merit in defendant’s contention. Defendant’s last point is that an instruction given by the trial court improperly placed the burden of proving innocence upon him. The defendant did not object to this instruction at trial; in fact he requested it. He cannot object to it now. Affirmed. STRUCKMEYER, V. C. J., and UDALL, McFARLAND, and HAYS, JJ., concur. . “I want you to try to think back over the inconsistencies as Mr. Whitney [defense counsel] has called them, in this girl’s testimony, and tell me where they come from. They come from one place and one place only, the story that Mr. Dutton told you. “If there are any inconsistencies they are there because they are inconsistent with the account which he gives, the account which he gives, of course, is different. And what other account could he give? He had to say something. He did say something. And he made it fit. And he did, just like his attorney, Mr. Whitney, did. when asked about a fact that caused him trouble, he said, ‘Well, I don’t know about that. I don’t remember. Well, maybe I said that at the preliminary heaving, but I was confused. It could be that.’ ” . “Seated there, on the other hand, is a convicted felon, a man who under oath said, on Mr. Whitney's question, ‘Did you have sexual intercourse with her,’ ‘No, I did not;’ who said here before you, ‘Yes, I did.’ ” “He is lying in one place or the other. He has committed perjury. And I tell you and submit to you, is a convicted felon, a perjurer. And he should be, today, a rapist. “MR. WHITNEY: I object to that. He said a convicted felon and a perjuror. “THE COURT: He hasn’t been convicted of perjury and that should not be inferred by the jury from the statement of counsel.”

HATHAWAY, Chief Judge. Following appellant’s quiet title action relating to a parcel of real estate in Cochise County, the trial court entered judgment in favor of appellee, imposing a constructive trust in her favor. On appeal, appellant contends there was no clear and convincing evidence to support the finding of a fiduciary relationship between any of the parties, rendering the imposition of a constructive trust error. Additionally, appellant argues that she is entitled to a judgment quieting title in her to the entire interest in the property on the theory of adverse possession. In order to understand the facts surrounding this matter, it is necessary to trace the title of the property in question back to 1919. In that year, title was conveyed to Samuel F. Maloney. The property had a house and an orchard on it. In 1922, Samuel and his wife, Emma Lee, conveyed an undivided one-half interest in the property to Joe Maloney and Emma Serene Maloney, his wife. Samuel and Joe were brothers. Samuel and Emma Lee lived on the property, while Joe and his wife lived in Texas. Throughout the next several years, each party paid taxes on his undivided one-half interest in the property. Joe died in Texas in 1951. Consequently, the 1952 taxes on his and his wife’s one-half interest were not paid. The Cochise County Treasurer sent notice of the tax delinquency to Joe’s address in Texas. Joe’s widow, Emma Serene Maloney, through her son-in-law, attempted to tender a portion of the due taxes, but this tender was refused by Cochise County. Thereafter, Emma Serene Maloney paid no taxes on the property. In 1953, Emma Serene was given written notice by Cochise County that her undivided one-half interest would be sold to the state for taxes. In October of that year, her one-half interest was struck off to the state in a tax sale. In 1954, Emma Serene received a redemption notice which clearly indicated that although her interest had been sold to the state, it could be redeemed for a minimal amount of back taxes. Despite receiving this notice, she did not redeem the property. In 1956, Emma Lee, who lived on the property in Arizona, paid the back taxes on Emma Serene’s share and received an assignment of the half interest which had belonged to Joe and Emma Serene Maloney. In 1958, Emma Lee assigned her interest in Joe and Emma Serene’s former share to her daughter, appellant Lelia Stoltz. Shortly thereafter, appellant applied for a treasurer’s deed for the interest which had formerly belonged to the Texas Maloneys. On February 5, 1959, the treasurer’s deed was issued to appellant. Later that year, Samuel F. and Emma Lee Maloney conveyed their one-half interest to appellant, ostensibly leaving her with a 100% interest in the property. Since these conveyances, appellant has paid all taxes on the property. She filed this complaint to quiet title in the land in her on June 1, 1976. Appellees Joe and Emma Serene Maloney answered, denying appellant’s allegations, and in a counterclaim asked that a constructive trust be declared for their benefit in the one-half undivided interest originally conveyed to them. As an affirmative defense, appellee alleged that the 1959 treasurer’s deed to appellant was void and did not convey any interest in the property to her. Appellant moved for summary judgment, filing a number of affidavits setting forth the above facts. The depositions of appellant, appellee, and Betty Jo Maloney Martin, appellee’s daughter, were also submitted in support of the motion. After the motion was denied, the parties stipulated that in lieu of a formal trial, the court could determine the issues and render a judgment thereon by considering as testimony and evidence all depositions taken, together with exhibits and affidavits attached to the prior motions. On this basis, the trial court reviewed the record and in a minute entry of May 2, 1980, issued findings of fact and conclusions of law. The court found that Samuel F. and Emma Lee Maloney were tenants in common of the subject real property with Joe and Emma Serene Maloney. It further .found that this relationship approximated a business agency, and because of the family ties involved, the relationship induced Emma Serene to place her trust in the Arizona Maloneys and caused her to relax the care and vigilance she would ordinarily exercise. The court found that at the time of the tax sale in 1953, and thereafter, a fiduciary relationship existed between the Arizona and Texas Maloneys. Also, the court found that because of publication deficiencies the treasurer’s deed issued to appellant was void and of no effect, and that Emma Serene Maloney had no actual knowledge that the certificate of purchase had been acquired by Emma Lee Maloney. Emma Serene was also found to have had no actual knowledge of the repudiation of her rights by her co-tenants, the Arizona Maloneys. Conclusion of law number nine read: “By virtue of the fiduciary relationship, the void Treasurer’s Deed, and the lack of clear disclaimer of the true owners’ title and the claim of adverse possession brought home to said true owners, the defendants Joe Maloney and Emma Serene Maloney are entitled to have a constructive trust imposed upon plaintiff for their benefit.” Following a judgment ordering her to convey an undivided one-half interest in the subject property to Emma Serene Maloney, appellant brought this appeal. On review, we are generally bound to accept the findings of fact of the trial court unless they are demonstrated to be clearly erroneous. Dawe v. Dawe, 17 Ariz.App. 237, 496 P.2d 880 (1972). However, this doctrine does not apply to the lower court’s conclusions of law and we may draw our own legal conclusions from the facts. Dietel v. Day, 16 Ariz.App. 206, 492 P.2d 455 (1972). We first turn to the issue of whether a constructive trust may be imposed under these facts. A constructive trust arises by operation of law, and is generally imposed when property is acquired under inequitable circumstances, resulting in unjust enrichment of one at the expense of another. Brown v. Walls, 10 Ariz.App. 168, 457 P.2d 355 (1969). Arizona cases indicate that a constructive trust arises where there has been fraud, either actual or constructive, Eckert v. Miller, 57 Ariz. 94, 111 P.2d 60 (1941), or where there is a confidential or fiduciary relationship plus an implied promise to reconvey. Murillo v. Hernandez, 79 Ariz. 1, 281 P.2d 786 (1955). The proof of a constructive trust must be by clear and convincing evidence. King v. Uhlmann, 103 Ariz. 136, 437 P.2d 928 (1968). There is no proof in the record, nor is there any argument, that actual or constructive fraud existed in this case. The key to the trial court’s imposition of a constructive trust is its finding that a fiduciary relationship existed between the Arizona Maloneys and Emma Serene Maloney, the surviving spouse of Joe Maloney. Based on the facts before us and the facts as found below, we are unable to agree that a fiduciary relationship existed between these parties. The existence of a family relationship without more is not sufficient to create a constructive trust. Almada v. Ruelas, 96 Ariz. 155, 393 P.2d 254 (1964); Smith v. Connor, 87 Ariz. 6, 347 P.2d 568 (1959). In most cases where a constructive trust has been established, it appears there has been shown in addition to the family relationship such factors as age and infirmity on one hand, actual dominance on the part of one of the parties, an established course of management of the grantor’s affairs by the grantee, or other similar facts making it inequitable to allow the grantee to prevail. Joseph v. Tibsherany, 88 Ariz. 205, 354 P.2d 254 (1960); G. Bogert & G. Bogert, The Law of Trusts and Trustees, See. 482 (rev. 2nd ed. 1978). The facts here show no overreaching on the part of appellant or her parents. In the absence of proof of great intimacy, disclosure of secrets, trusting of power, superiority of position and the like, it was error to impose a constructive trust on the facts of this case. We recognize the general rule that there exists a fiduciary relationship between tenants in common. Crossman v. Meek, 27 Ariz.App. 477, 556 P.2d 325 (1976). The mere existence of a co-tenancy, however, does not ipso facto create a fiduciary relationship between the co-tenants. Howell v. Bach, 580 S.W.2d 711 (Ky.App.1978); Rio Algom Corp. v. Jimco Ltd., 618 P.2d 497 (Utah 1980). It is the general rule that tenants in common cannot buy the common property at a tax sale, except for the benefit of all. The purchasing co-tenant’s right in the land is not enhanced in such a sale except to secure the payment of the amount expended by him for taxes for the other co-tenants. Perkins v. Johnson, 178 Tenn. 498, 160 S.W.2d 400 (1942); Andrews v. Andrews, 155 Fla. 654, 21 So.2d 205 (1945); Albury v. Gordon, 164 So.2d 549 (Fla.App. 1964). An exception to this general rule arises where the land has been assessed upon the tax books in the names of the owners of the undivided interests separately, and when the owner of each undivided interest could have paid his own tax unaffected by the fact of the joint interest. Where taxes are assessed separately, as here, against the interest of each co-tenant rather than against the common property as a whole, any co-tenant may acquire exclusively title to parts of the property based upon tax sales against the other co-tenants as long as he acts in good faith and is under no contractual obligation to pay the taxes for the other co-tenants. Neilson v. Hase, 229 Ark. 231, 314 S.W.2d 219 (1958); Jesberg v. Klinger, 187 Kan. 582, 358 P.2d 770 (1961); Jennings v. Bradfield, 169 Colo. 146, 454 P.2d 81 (1969); Guilbeau v. Jeanerette Lumber & Shingle Co., 219 So.2d 545 (La. App.1969), aff’d 255 La. 527, 232 So.2d 67 (1970). Further, assuming the tax sale to the state was properly accomplished, the . tenancy in common terminated at that point and the former co-tenants no longer owed any duty to each other. 20 Am. Jur.2d, Cotenancy and Joint Ownership, § 31 (1965). Since there was no fiduciary relationship between the co-tenants herein, Emma Lee Maloney had the right to redeem her former co-tenant’s interest in the subject property and convey it to appellant. Despite this conclusion, another facet of this case compels us to affirm the judgment in appellee’s favor. The trial court’s findings of fact included: “16. No recording in the office of the Cochise County Recorder of the affidavits of posting and publication of the list of real property upon which taxes are unpaid and delinquent, and no notice thereof was made by publication, as required by law. * * * * * * 20. The Cochise County Treasurer caused notice of the application for said Treasurer’s Deed to be published once a week for two consecutive weeks, rather than for four weeks as required by law.” Our review of the record indicates that there are sufficient facts to support the conclusion that first, the sale to the state of appellee’s undivided half interest in the subject property for delinquent taxes was improperly done, and second, the issuance of the treasurer’s deed to appellant in 1959 was also void. Our statutes relating to sale of property for delinquent taxes have remained essentially unchanged for many years. As to the initial sale to the state in 1953, the record reveals no evidence that a proper delinquent tax notice was mailed to the Texas Maloneys, or that affidavits of posting notice and publication were recorded with the Cochise County Recorder, pursuant to Arizona Code Annotated, §§ 73-804 and 73-805 (1939) (currently A.R.S. §§ 42-387 through 42-389). Furthermore, publication of application for a treasurer’s deed was not made for four consecutive weeks pursuant to A.R.S. § 42-457, and appellee apparently never received notice of such application by registered mail as required by A.R.S. § 42-456. The provision requiring notice of a tax sale by publication is mandatory. Kincannon v. Irwin, 64 Ariz. 307, 169 P.2d 861 (1946). Such publication is the notice which confers jurisdiction to proceed with the tax sale. Consolidated Motors, Inc. v. Skousen, 56 Ariz. 481, 109 P.2d 41, cert. den. 314 U.S. 631, 62 S.Ct. 64, 86 L.Ed. 507 (1941). Improper, notice of a tax sale as required by statutory provisions is a defect which invalidates all subsequent proceedings. 85 C.J.S. Taxation § 790 (1954). The notice of a tax sale should comply strictly with the requirements of the statute, and the form of notice prescribed by the statute should be followed substantially. 85 C.J.S. Taxation § 793 (1954). Appellant had the burden of establishing her good title, as she was the one claiming under a tax deed. Consolidated Motors, Inc. v. Skousen, supra; 85 C.J.S. Taxation § 968b (1954). Appellee’s evidence established that the statutory prerequisites were not followed, in the tax sale or the issuance of the treasurer’s deed, and this evidence was uncontradicted by appellant. Appellant likewise failed to prove that she or her predecessors in interest gained title to appellee’s undivided one-half interest by ouster or adverse possession. Mere occupancy or possession of the premises by one of the co-tenants does not constitute an ouster, nor does a co-tenant’s acquisition of a tax title. 86 C.J.S. Tenancy in Common §§ 29, 34 (1954). Since there was no ouster of co-tenants, appellant cannot claim adverse possession of the subject property. In any event, she failed to establish all the elements of adverse possession. The portion of the judgment against appellant on her complaint is affirmed. In light of our conclusion that the 1953 tax sale and 1959 treasurer’s deed were void, Emma Serene Maloney has an undivided one-half interest in the subject property. Accordingly, the portion of the judgment ordering appellant to convey such interest to her is void. Appellant and appellee are tenants in common of the subject property. Affirmed as modified. HOWARD and BIRDSALL, JJ., concur. . It appearing from the record that appellee Joe Maloney died on November 23, 1951, he is not a proper party to this action. The caption on appeal has been amended accordingly.

McFarland, Justice. John M. Von Reeden, hereafter referred to as defendant was tried on October 24, 1967, on a charge of murder and on November 1, 1967, found guilty by the jury of murder second degree, and sentenced to a term of not less than 10 years nor more than 15 years in the Arizona State Penitentiary. From a denial of his motion for a new trial he appeals. The defendant was charged with murdering his wife, Rebecca Lynn Von Reeden on July 9, 1967. On that date and at the time of his trial he was free on bond in connection with a pending appeal of a previous conviction of eleven counts of Grand Theft by Embezzlement, Felonies. Defendant during the murder trial did not take the stand and testify. The Court of Appeals, 9 Ariz.App. 190, 450 P.2d 702, on February 25, 1969, reversed for a new trial the embezzlement convictions and such charges were dismissed. Defendant thereafter filed a motion for a new trial under Rules of Criminal Procedure, 310, subd. 3, A.R.S. 17, upon the grounds of newly discovered evidence and set forth: “That at the time of the murder trial held before this Court, the Defendant had convictions for eleven felonies, which said record of conviction was evidence to be used for the impeachment of the Defendant on the witness stand. “That subsequent to that time the felony conviction was reversed and the charges dismissed. “That the reversal of the charges constitutes new evidence and that the Defendant now cannot be impeached by his prior felony conviction as there is no prior felony conviction.” The trial court after hearing denied the motion for a new trial which was made two years after rendition of the verdict. Defendant appealed under provisions of A.R.S. 17, Rules of Criminal Procedure § 348B contending the trial court erred in not granting his motion for a new trial. This court will not disturb a trial court’s denial of a motion for new trial unless it appears there has been an abuse of discretion, State v. George, 100 Ariz. 350, 414 P.2d 730; State v. Sorrell, 95 Ariz. 220, 388 P.2d 429; State v. Quintana, 92 Ariz. 267, 376 P.2d 130; State v. Turner, 92 Ariz. 214, 375 P.2d 567. The law gives broad discretion to a court and permits a motion for new trial on grounds of newly discovered evidence after time for appellate review. In State v. Johnson, 99 Ariz. 52, 406 P.2d 403 in passing on the question of whether it is proper to introduce evidence of a conviction of a felony for impeachment when the conviction is on appeal we said: “The remaining assignment of error questions the propriety of impeaching a defendant’s credibility by testimony of a felony conviction which is on appeal. Appellant claims the Court erred in not granting a mistrial when the County Attorney asked him on cross examination if he had ever been convicted of a felony when such felony was on appeal. Though appellant never answered the question, the assignment of error questions the prosecutor’s good faith in propounding such a question. The Ninth Circuit when faced with a similar issue state in Bloch v. United States, 226 F.2d 185 (9th Cir. 1955), cert. denied, 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed. 826 (1956). ‘ * * * The answer is to be found in a determination of whether the prosecutor was justified in concluding that it was a permissible question sanctioned by law.’ Id. at 188. “While there are some jurisdictions to the contrary, the majority of states and Federal Jurisdictions which have, considered this issue have concluded that a conviction is a verity until set aside, and thus permissible to be considered by the trier of facts as destructive of the witness’ credibility. We believe the majority rule is sound.” A similar argument was presented in State v. Barker, 94 Ariz. 383, 385 P.2d 516 in which the court refused to instruct the county attorney to not ask questions in regard to a conviction had some 16 years before, we said: “It is first urged that the trial court erred in refusing appellant's motion to direct the County Attorney to refrain from cross-examining him on a former conviction for manslaughter which occurred some sixteen (16) years prior. Appellant argues that the denial of his motion prevented him from taking the witness stand and testifying on his own behalf. “In Arizona, a witness may be impeached by the showing of a prior felony conviction, State v. Sorrell, 85 Ariz. 173, 333 P.2d 1081; State v. Harris, 73 Ariz. 138, 238 P.2d 957, except where the prior felony conviction is so remote that it cannot reasonably cast a reflection on the witness’s credibility, State v. Harvill, 89 Ariz. 340, 362 P.2d 663. Sibley v. Jeffreys, 76 Ariz. 340, 264 P.2d 831. * * * * * “The State argues that there is nothing before this Court on which to predicate a reversal of the trial court, that having received this adverse ruling appellant should have proceeded with his case by taking the stand then raising the question if the State attempted to establish the prior conviction. We are in agreement with the position adopted by the State. First, the appellant is assuming that had defendant taken the stand the county attorney would have used the prior man slaughter conviction by attempting to impeach his credibility. Second, appellant is assuming that the trial court would have adhered to its initial ruling after considering the elements of the test for remoteness, stated in Sibley v. Jeffreys, supra.” As we held in Barker, supra, one who invokes his privilege not to take the witness stand for whatever reason he chooses, cannot as a basis for rehearing complain that his case was prejudiced by such act. Defendant attacks the constitutionality of Arizona’s procedure of permitting the introduction into evidence of a prior conviction of a felony for the purpose of impeaching the credibility of the witness. This procedure has survived such attacks because it is founded upon the theory that it assists the triers of fact to weigh the evidence. Udall on Evidence, § 67. Sibley v. Jeffreys, 76 Ariz. 340, 264 P.2d 831; State v. Boodry, 96 Ariz. 259, 394 P.2d 196, cert. den. 379 U. S. 949, 85 S.Ct. 448, 13 L.Ed.2d 546; State v. Daymus, 90 Ariz. 294, 367 P.2d 647. On the other hand we believe it is equally necessary to present to a jury evidence which will assist them in determining the complete story of the crime. State v. Johnson, supra; State v. Villavicencio, 95 Ariz. 199, 388 P.2d 245; State v. Barker, supra; State v. Foggy, 101 Ariz. 459, 420 P.2d 934, cert. den. 386 U.S. 1025, 87 S.Ct. 1386, 18 L.Ed. 2d 468. In the instant case defendant not having taken the stand at his trial he cannot now maintain that a reversal of his prior conviction creates new material evidence. He knew the status of his prior conviction and could have so explained to the jury had he taken the stand in the event the county attorney asked him the impeaching question. State v. Weis, 92 Ariz. 254, 375 P.2d 735, cert. den. 389 U.S. 899, 88 S.Ct. 226, 19 L.Ed.2d 221. He cannot now complain. State v. Barker, supra. Judgment affirmed. LOCKWOOD, C. J., and STRUCKMEYER, V. C. J., concur.

GORDON, Justice: Petitioner brought this special action to challenge an order of the Maricopa County Superior Court suppressing evidence critical to its presentation of a child molestation and sexual exploitation case. We have jurisdiction pursuant to A.R.S.Const. Art. 6, § 5(4). Following oral argument we issued an order, with written opinion to follow, vacating the trial court suppression order so that trial, set for the following Monday, could proceed as scheduled. Respondent Moses Metz was charged with two counts of child molesting and one count of sexual exploitation of a minor. Before trial on these charges, respondent filed a motion to suppress three photographs allegedly taken of one of the victims while she was nude. Respondent urged that the search warrant supporting the seizure of the photographs was defective on two grounds: (1) a minor child is incompetent to furnish reliable information upon which a search warrant may be based, and (2) the affidavit for the search warrant was stale. During oral arguments on the motion to suppress, respondent brought up a third ground to invalidate the search warrant: that the affidavit contained an erroneous date. While Superior Court Judge Derick-son ruled in favor of the petitioner on the first two issues, he ruled in favor of the respondent on the third issue. Because the first two issues are not properly before us on this petition for special action, we confine ourselves to consideration of the third issue: whether the search warrant affidavit is defective due to the inclusion of an obviously erroneous date. The first page of the affidavit supporting the search warrant for the photographs alleges that the crimes of child molesting and sexual exploitation of a minor occurred on July 29, 1980. The third page of the affidavit contains a statement that one of the victims related on 8-14-80 that the alleged criminal activity occurred “on or about 8-29-80.” This third page also contains a statement that the second victim related that other similar events occurred “in a separate incident the same day.” We agree that the date of “8-29-80” is obviously erroneous. The affidavit was signed on August 15, 1980, two weeks before August 29, 1980, and could not report events which had not yet occurred. We feel that the inference that “8-29-80” is a typographical error intended to be “7-29-80” is equally obvious. Only two dates are given in the affidavit as to when the alleged criminal activity occurred: “the 29 day of July, 1980,” and “8-29-80.” No evidence or reason has been advanced to challenge the accuracy of the July date. The form in which it appears is more precise than that of the subsequent date. The figure 8 could easily be typed in error when the figure 7 was intended. Conceding that “8-29-80” is incorrect because it is subsequent to the date on which the affidavit was signed, it seems apparent that the date “the 29 day of July, 1980,” is correct and that “8-29-80” should read “7-29-80.” We have consistently held that affidavits for search warrants should be interpreted in a common sense and realistic fashion. State v. Torrez, 112 Ariz. 525, 544 P.2d 207 (1975), cert. denied, 425 U.S. 916, 96 S.Ct. 1517, 47 L.Ed.2d 767 (1976); In re One 1970 Ford Van, I. D. No. 14GHJ55174, L. No. CB 4030, 111 Ariz. 522, 533 P.2d 1157 (1975); see State v. Castoe, 114 Ariz. 47, 559 P.2d 167 (App.1976). Doubtful or marginal affidavits should be considered in light of the preference to be accorded warrants. Torrez, supra. If a magistrate has probable cause to issue a search warrant, that warrant should not be invalidated by hyper-technical interpretation. In re One 1970 Ford Van, supra. Indeed, a presumption exists in favor, of the validity of search warrants. State v. Endreson, 109 Ariz. 117, 506 P.2d 248 (1973). In United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), the Supreme Court of the United States pronounced: “If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. * * * * * * “* * * [W]hen a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” 380 U.S. at 108-109, 85 S.Ct. at 746, 13 L.Ed.2d at 689. In State v. Kelly, 111 Ariz. 181, 526 P.2d 720 (1974), cert. denied, 420 U.S. 935, 95 S.Ct. 1143, 43 L.Ed.2d 411 (1975), we held that the complete omission of the date of an alleged crime did not render a search warrant defective. In the case before us, the first page of the affidavit includes the correct date of the alleged incident. No claim is made that anyone has been misled or confused by the subsequent typographical error. We feel that the trial court was plainly wrong in finding the search warrant defective due to a typographical error as to the date of the criminal activity in the affidavit before us. Respondent points out that petitioner presented no evidence to explain the date discrepancy at the motion to suppress. As petitioner explained in oral argument before this Court, respondent’s written motion to suppress made no reference to the date discrepancy. That argument was first raised by respondent during oral arguments on the motion in the trial court. Petitioner requested an opportunity to put on an evidentiary hearing to shed some light on how the error was made, but the trial court refused its request. Respondent also argues that this Court should not accept jurisdiction in this matter. A.R.S.Const. Art. 6, § 5(4) grants jurisdiction to the Supreme Court over special actions. While we do not accept jurisdiction over special actions when there is an equally plain, speedy, and adequate remedy by appeal, Rule 1(a), 17A A.R.S., Rules of Procedure for Special Actions, we feel that the particular facts of this case warrant the exercise of our discretion to assume jurisdiction. This petition asks us to correct a plain and obvious error committed by a trial court in reversing a magistrate’s finding of probable cause to issue a warrant, which error would have resulted in substantial delay to a child molestation and sexual exploitation case where the victims and key witnesses were eight and nine years old and therefore more susceptible to the problems of memory failure and psychological damage which protracted or repeated trials can cause. We feel that the trial court’s suppression of evidence based on an apparent typographical error was an abuse of discretion, see Rule 3(c), 17A A.R.S., Rules of Procedure for Special Actions, because it was without precedent or support in the law and could not be justified. Western Waste Serv. Sys. v. Superior Court, 120 Ariz. 90, 584 P.2d 554 (1978). We therefore vacated the trial court’s suppression order with this written opinion to follow. Petition for relief granted. STRUCKMEYER, C. J., HOLOHAN, V. C. J., and HAYS and CAMERON, JJ., concur.

OPINION HATHAWAY, Chief Judge. Appellant (Sears) appeals from a $30,000 judgment entered on a jury verdict against it in this personal injury lawsuit. On August 18,1976, appellee and his son, David, went to Sears to purchase saber saw blades and to obtain a large cardboard box for David to play in. After buying the saw blades, appellee asked a Sears employee if he could get an empty cardboard box. He was directed to the manager of the hardware department who told him to get a box that was to be thrown away off a truck, and how to get to the loading dock. In route to the loading dock, appellee and his son walked through a door with an “Employees Only” sign over it. At the dock, appellee asked an employee if he could take a box, and was told that it would be all right and that he could get it off the truck from the side since the loading dock service door was closed. The truck was a flatbed with sideboards. Appellee climbed up over the wheel well and over the sideboards into the truck. If appellee had been permitted to use the loading dock, it would not have been necessary to climb over the side of the truck. He threw a box out and then climbed back over the sideboards, placing his feet on the top of the tire and stepped down into the inner wheel well. He placed his right hand in the lower part of the sideboard and when he stepped down the ring on his left hand caught on a protruding object and the flesh was stripped from the finger to the bare bone. He had to climb back up and push his hand up to unhook the ring. One day after he was admitted to the hospital, appellee’s left ring finger was amputated. Two questions are presented on appeal: (1) Can a business invitee remain an invitee even after he completes his business purpose and ventures onto a part of the premises not open to the public? (2) Assuming that plaintiff had the status of an invitee, was there evidence of a dangerous condition or negligence on the part of Sears? Counsel for appellee contends that the issue of whether appellee remained a business invitee or became a licensee at the time of the injury is first raised on appeal. The rule is, of course, well settled that the trial court and opposing counsel should be afforded a fair opportunity to overcome any asserted defects before error may be raised on appeal. Builders Supply Corp. v. Shipley, 86 Ariz. 153, 341 P.2d 940 (1959); City of Yuma v. Evans, 85 Ariz. 229, 336 P.2d 135 (1959); Davis v. Kleindienst, 64 Ariz. 251, 169 P.2d 78 (1946). In its reply brief, Sears answers that the question was raised and preserved for review on appeal through its motion for directed verdict. The motion for directed verdict was orally made and not reported. Counsel for appellee disputes Sears’ contention. We cannot presume from the silent record that the motion raised the issue. Under our rules, a motion for directed verdict must “state the specific grounds therefor.” 16 A.R.S., Rules of Civil Procedure, rule 50(a). Because no issue as to appellee’s status appears on the record to have been raised during the motion for directed verdict, we will not review the question on appeal. Williams v. Town of Silver City, 84 N.M. 279, 502 P.2d 304 (App. 1972). Sears’ reference to the issue in a trial memorandum is not enough to preserve the issue for appeal under the circumstances presented here. In its motion for new trial, Sears did not ask the trial court to reconsider and treat appellee as a licensee as a matter of law. This suggests that the issue had not been previously raised. Even had it done so, post-trial objection is too late to preserve on appeal an issue which the trial court has not had an effective opportunity to rule upon at trial. Commercial Credit Corp. v. Wollgast, 11 Wash. App. 117, 521 P.2d 1191 (1974). In addition, instructions were submitted on the issue of appellee’s status, and Sears’ attorney made no objection to those given to the jury. Sears therefore is bound by the theory of those instructions, Town of Williams v. Perrin, 70 Ariz. 157, 217 P.2d 918 (1950), and is deemed to have admitted that there was evidence to support them. Verdugo v. Po Shing Gee, 4 Ariz.App. 113, 417 P.2d 747 (1966). The rule is stated in 5 C.J.S. Appeal and Error, § 1507(8) (1958): “Where a party causes a question to be submitted to the jury as one of fact, he cannot thereafter take the position that the question was one of law and should not have been submitted.” Appellant next contends, assuming invitee status, which we must since the question is foreclosed from our consideration, that there was no evidence of a dangerous condition or negligence. We disagree. The testimony discloses that the appellee had asked one of Sears’ employees if he could enter the cargo area of the truck through the loading dock service door. He was advised that Sears was closing and he could get the box off the truck from the outside. The jury could have concluded that he was deprived, through the conduct of Sears’ employee, of a safe passageway. See Albers v. Gehlert, 409 S.W.2d 682 (Mo. 1966). Assuming he was an invitee, Sears owed a duty of exercising ordinary care to see that he was afforded a reasonably safe passageway. Yuma Furniture Co. v. Rehwinkel, 8 Ariz.App. 576, 448 P.2d 420 (1968). Given the available choices, and the fact that appellee was deprived of the passageway which would appear to have exposed him to no risk, a clear jury question was presented. The judgment is affirmed. HOWARD and BIRDSALL, JJ., concur.

OPINION WEISBERG, Judge. ¶ 1 Ridenour, Swenson, Cleere & Evans, P.C. (“RSCE”) appeals from the judgment awarding William and Elizabeth Fearnow $86,500.00 for William Fearnow’s equity interest in RSCE. The trial court concluded that the “Voluntary Withdrawal” provision in the Shareholder Agreement between Fear-now and RSCE unlawfully restricted Fear-now’s right to practice law. Accordingly, the court found the Shareholder Agreement invalid. The court further held that Fearnow could recoup his equity interest in RSCE under the Arizona Professional Corporations Act (“Act”), as a “disqualified person” who could compel RSCE to acquire his share for its fair-market value. ¶ 2 For the following reasons, we conclude that the Voluntary Withdrawal provision of the Shareholder Agreement constitutes an unlawful restriction upon Fearnow’s right to practice law, but we further conclude that Fearnow has no right to compensation under the Act. FACTUAL AND PROCEDURAL BACKGROUND ¶ 3 In 1987, Fearnow became a partner in the law firm of Ridenour, Swensen, Cleere and Evans (the “Partnership”). Fearnow paid $33,674.42 for his partnership interest. ¶ 4 In 1991, the Partnership dissolved, and the prior partners formed the RSCE professional corporation. Fearnow received one share of stock in RSCE. ¶ 5 On November 27, 1997, RSCE executed the last version of its Shareholder Agreement, which included a section governing the “Withdrawal of Stockholders.” This section included a provision for the “Voluntary Withdrawal” of Stockholders, which stated: Other than retirement, a Stockholder who withdraws from the Corporation shall tender his or her Share to the Corporation for no compensation. ¶ 6 In February 1998, Fearnow voluntarily left RSCE to practice law at the firm of Walker Ellsworth, P.L.C., and took several of RSCE’s clients with him. He then demanded that RSCE pay him $33,674.42 as compensation for his share of stock. When RSCE refused, the Feamows filed this lawsuit seeking to invalidate the Voluntary Withdrawal provision of the Shareholder Agreement. The Feamows also sought compensation from RSCE based on theories of unjust enrichment and conversion. 1Í7 The parties filed cross-motions for summary judgment on the validity of the Voluntary Withdrawal provision of the Shareholder Agreement. The trial court (the Honorable Colin F. Campbell) ruled that the Voluntary Withdrawal provision of the Shareholder Agreement was a restriction on a lawyer’s right to practice law, in violation of Ethical Rule 5.6, Arizona Rules of Supreme Court 42 (“ER 5.6”). The court concluded that the striking of the provision left a “large gap. in the [Shareholder [Ajgreement ... [with] no remaining term cover[ing] what happens in the event of voluntary withdrawal or retirement.” Because the Shareholder Agreement had no severability clause and the court could not rewrite the stricken material terms for the parties, it held the entire agreement to be invalid. The court then ordered the parties to submit additional briefing on the issue of what would be the appropriate remedy. ¶8 The parties filed cross-motions for summary judgment on the remedy issue. RSCE reasoned that the Feamows had no remedy because the Act afforded none. It asserted that the Act provided that a corporation’s obligation to repurchase stock arose only upon the death, dissolution or disqualification of a shareholder. RSCE argued, therefore, that Fearnow was not entitled to the compulsory repurchase of his share because he was not dead, could not be dissolved, and was not a “disqualified person” under the Act. Fearnow conceded he had no remedy under the Act, but sought equitable relief from the court based on restitution. ¶ 9 The trial court held that Fearnow was a “disqualified person” under the Act and ordered the appraisal of his share. RSCE filed a motion for reconsideration on the “disqualified person” issue, which the court denied. ¶ 10 The valuation issue proceeded to a bench trial before the Honorable Anna Baca. The court determined that the fair value of Fearnow’s equity interest was $86,500. The court entered final judgment to that effect, and awarded the Fearnows their attorneys’ fees, expert fees and costs. RSCE timely filed this appeal. We have jurisdiction over this matter pursuant to A.R.S. § 12-2101(B)(2003). DISCUSSION ¶ 11 On appeal, RSCE challenges the trial court’s partial summary judgment rulings regarding both the invalidity of the Shareholder Agreement and Fearnow’s status as a “disqualified person” under the Act. We review the grant of summary judgment de novo, viewing the evidence and any reasonable inferences therefrom in the light most favorable to the party against whom judgment was entered. Great Am. Mortg., Inc. v. Statewide Ins. Co., 189 Ariz. 123, 124-25, 938 P.2d 1124, 1125-26 (App.1997). Also, the interpretation of a contract involves questions of law which we review de novo, as we do the interpretation and construction of the ethical rules governing attorney conduct. Tobel v. Travelers Ins. Co., 195 Ariz. 363, 366, ¶ 13, 988 P.2d 148, 151 (App.1999) (interpretation of contract is subject to de novo review); Perguson v. Tamis, 188 Ariz. 425, 427, 937 P.2d 347, 349 (App.1996) (interpretation and meaning of court rule is question of law subject to de novo review). I ¶ 12 We first consider whether the Shareholder Agreement is enforceable. The trial court concluded that section 3(c) of the Shareholder Agreement was an unlawful restriction on the right of Fearnow to practice law and therefore, in violation of ER 5.6(a). At the time of the trial court proceedings, ER 5.6(a) provided: Restrictions on Right to Practice A lawyer shall not participate in offering or making: (a) a partnership[ ] or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship except an agreement concerning benefits upon retirement;____ ER 5.6. ¶ 13 The ethical rule guarding against restrictive covenants among lawyers was created to “prevent[ ] lawyers from ‘bartering in clients,’ thereby protecting the client’s freedom to choose, discharge, or replace a lawyer at will.” Anderson v. Aspelmeier, Fisch, Power, Warner & Engberg, 461 N.W.2d 598, 601 (Iowa 1990) (citations omitted); see also Cmt. [1] to 2003 Amendment to ER 5.6 (“An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer.”) (emphasis added). ¶ 14 Arizona courts have not directly addressed ER 5.6’s prohibition on restrictive covenants. However, in Valley Medical Specialists v. Farber, 194 Ariz. 363, 982 P.2d 1277 (1999), a case invalidating a restrictive covenant between a doctor and his professional corporation, our supreme court analogized the medical profession and a patient’s right to the doctor of his/her choice to the legal profession and a client’s right to the attorney of his/her choice. Id. at 368-69, ¶¶ 16-18, 982 P.2d at 1282-83 (noting that the principle of protecting client choice justified prohibiting restrictive covenants among lawyers). The court concluded that public policy required that the special doctor-patient relationship, like the attorney-client relationship, was entitled to unique protection, and could not be unduly restricted. Id. at 369, ¶ 19, 982 P.2d at 1283. ¶ 15 Several jurisdictions have held that any financial disincentive imposed upon a departing lawyer is an invalid restriction on the right to practice law in violation of applicable ethical rules. See Dowd & Dowd, Ltd. v. Gleason, 181 Ill.2d 460, 230 Ill.Dec. 229, 693 N.E.2d 358 (1998); Anderson, 461 N.W.2d 598; Cohen v. Lord, Day & Lord, 75 N.Y.2d 95, 551 N.Y.S.2d 157, 550 N.E.2d 410 (1989). The rationale of this position is that ethical rules prevent any restrictions by lawyers that limit the ability of a person to choose his or her attorney. Cohen, 551 N.Y.S.2d 157, 550 N.E.2d at 411-12; see also Restatement (Third) of Law Governing Lawyers § 13 cmt. b (2000). ¶ 16 Meanwhile, other jurisdictions have adopted a more permissive approach, holding that reasonable financial penalties for departing lawyers do not restrict the lawyer’s right to practice. See Howard v. Babcock, 6 Cal.4th 409, 25 Cal.Rptr.2d 80, 863 P.2d 150, 156 (1993); Pettingell v. Morrison, Mahoney & Miller, 426 Mass. 253, 687 N.E.2d 1237, 1240 (1997). Under this approach, financial penalties are enforceable when they are reasonably linked to the actual loss suffered by the firm that is attributable to the lawyer’s departure. Howard, 25 Cal.Rptr.2d 80, 863 P.2d at 156 (restriction valid if a “reasonable cost against a partner who chooses to compete with his or her former partners”); Pet-tingell, 687 N.E.2d at 1240 (financial penalty valid if “reasonable recognition of a law firm’s loss due to the departure of a partner”). ¶ 17 In the instant case, however, we need not decide which standard applies in Arizona because the subject financial penalty provision is invalid under even the more permissive standard. The financial disincentive here was not based upon any actual loss suffered by RSCE due to Fearnow’s departure. On the contrary, the Agreement required Fearnow to forfeit all of his capital contribution regardless of whether he actually took with him any of RSCE’s clients. We, therefore, affirm the trial court’s holding that the Agreement is unenforceable. II ¶ 18 Next, we turn to the issue of compensation. Both parties agree that Fearnow was properly issued his share. According to RSCE, Fearnow must now return his share without compensation. However, having concluded that the Agreement is unenforceable as being against public policy, we decline to so hold. ¶ 19 Fearnow, on the other hand, argues that RSCE is required to compensate him for his share. On appeal, he asserts two theories of recovery. First, he maintains that the Act entitles him to the fair market value of his share. Alternatively, in the event his position under the Act fails, he posits that he is entitled to the return of his capital contribution under the theory of unjust enrichment. We, however, disagree with both of his arguments. Arizona Professional Corporation Act ¶ 20 Fearnow first contends that the repurchase of his share pursuant to the Act is mandated by the Supreme Court’s opinion in Vinall v. Hoffman, 133 Ariz. 322, 651 P.2d 850 (1982). Vinall dealt with the departure of a dentist from a professional corporation. The court concluded that the Act required the corporation to repurchase the share of the departing dentist. Id. at 324, 651 P.2d at 852. ¶ 21 Vinall, however, is no longer controlling. Vinall was based on an earlier version of the Act that required the acquisition of a shareholder’s shares upon, inter alia, the “resignation” or “legal disqualification” of a shareholder. A.R.S. § 10-909(D) (1995). That version of the Act, however, was repealed effective January 1, 1996, and a new Act went into effect on that same date. Thus, the language of the former A.R.S. § 10-909(D) was replaced with A.R.S. § 10-2223, which remains in effect. The former provision that a shareholder’s resignation obligated a corporation to acquire the shares was specifically deleted from the new Act. See A.R.S. § 10-2223. ¶ 22 Under the current Act, a professional corporation must repurchase the shares of a shareholder upon either of two circumstances: (1) the death or dissolution of the shareholder when the person to whom the shares would be devolved is not a person eligible to hold that stock pursuant to A.R.S. § 10-2220; or (2) when the shareholder becomes a “disqualified person.” Id. The first circumstance clearly is inapplicable here. Therefore, under the new version of the Act, Fearnow is entitled to the fair market value of his share only if he is a “disqualified person.” ¶23 The Act now defines a “disqualified person” as “an individual or entity that is not or ceases to be a qualified person.” A.R.S. § 10-2201(1). “Qualified person” is defined as “a person that is eligible under the chapter to be issued shares by a professional corporation.” A.R.S. § 10-2201(7). Eligibility for the issuance of shares from a professional corporation is set forth in A.R.S. § 10-2220(A)(1), which states that a professional corporation may issue shares to “[(Individuals who are licensed by law in this or another state to render a professional service described in the corporation’s articles of incorporation.” Therefore, because Fearnow is a licensed attorney, he is eligible to be issued shares by the law firm and is a “qualified person” under the current Act. See Lake Havasu City v. Mohave County, 138 Ariz. 552, 555, 675 P.2d 1371, 1374 (App.1983) (court must give meaning to clear and unambiguous statutory language). Furthermore, Fearnow will remain a qualified person for so long as he is licensed to practice law in Arizona or in another state. Consequently, at this time, he cannot require that RSCE repurchase his shares on the basis that he is “disqualified” under the Act. ¶24 We note that Arizona’s current Act was patterned after the 1984 Model Professional Corporate Supplement to the Model Business Corporation Act (“Model Act Supplement”), which supports our analysis. Terence Thompom, et al, 7 Arizona Practice Series-Corporate Practice at 631 (2004 ed.). Section 3(1) of the Model Act Supplement defines a “disqualified person” as “an individual or entity that for any reason is or becomes ineligible under this Supplement to be issued shares by a professional corporation.” Section 3(8) defines a “qualified person” as “an individual ... that is eligible under the Supplement to be issued shares by a profes sional corporation.” The official comment clarifies that the “Supplement permits shares of a professional corporation generally to be issued only to individuals licensed in this or another state to render a professional service.” Model Act Supplement § 3, official cmt. 1. The official comment further states that “[t]hese persons are referred to as ‘qualified persons/ ” Id. Consequently, the only shareholder limitation found in the new Model Act is that the shareholder be licensed in the related profession. ¶ 25 We further note that a significant goal of every uniform act, including this one, is to foster uniform interpretations by all states that adopt it. See Canon School Dist. No. 50 v. W.E.S. Const. Co. Inc., 180 Ariz. 148, 154, 882 P.2d 1274, 1280 (1994) (declaring that “[u]niform Acts should be interpreted consistently,” and quoting the Tennessee Supreme Court, which stated that “[i]t is axiomatic that a purpose in enacting uniform laws is to achieve conformity, not uniqueness____ This court should strive to maintain the standardization of construction of uniform acts to carry out the legislative intent of uniformity,” Holiday Inns, Inc. v. Olsen, 692 S.W.2d 850, 853 (Tenn.1985)); Welch-Doden v. Roberts, 202 Ariz. 201, 209, ¶¶ 33, 34, 42 P.3d 1166, 1174 (App.2002) (ruling consistent with the interpretation of other jurisdictions adopting the Uniform Child Custody Jurisdiction and Enforcement Act, which was intended to reduce the potential of “conflicting jurisdictional disputes”). Accordingly, states should be able to enact laws patterned after model acts with the assurance that the same language enacted by different states will be similarly interpreted to reach similar results. Our conclusion is therefore bolstered by the conclusions reached by all courts that have considered the term “disqualified” under the Act. ¶ 26 For example, in Utah a plaintiff-attorney was fired by her firm. Berrett v. Purser & Edwards, 876 P.2d 367, 368 (Utah 1994). She then requested that the firm repurchase her shares in the professional corporation because, she alleged, she was no longer “qualified” to hold corporate shares. Id. The Utah Supreme Court, however, held that the Utah statute referred only to individuals who were no longer licensed in the corporation’s profession. Id. at 369. The court concluded that the phrase “no longer qualified” did not refer to an employee whose employment relationship had been terminated, but who still was appropriately licensed. Id. at 370. The court gave the term “qualified” “its logical and consistent meaning within the entire Professional Corporation Act,” noting that if the court added to that meaning it would be exceeding its authority and legislating from the bench. Id. Moreover, in response to the plaintiffs claim that deeming her to be “qualified” to own shares would result in unethical ramifications, the court opined that such concerns could not alter the statute’s meaning and that such employee-shareholders must take responsibility for their own failure to protect themselves in the event of termination from their firm. Id. at 371. ¶27 In a similar case in Florida, three attorneys, who all held shares in the same professional corporation, voluntarily discontinued employment with their firm. Corlett, Killian, Hardeman, McIntosh and Levi, P.A v. Merritt, 478 So.2d 828, 829 (Fla.Dist.Ct.App.1985). The court held that the Act did not require that the professional corporation repurchase the shares of its former employees. Id. Thus, the former employees could remain shareholders in the professional corporation. Id. at 831. The Florida court, like the Utah court in Berrett, held that employee-shareholders could not look to the court for redress if they had failed to protect themselves from ethical difficulties that might arise from their continued ownership of stock in the professional corporation following the termination of their employment. Id. at 834. ¶ 28 Again, in Illinois, the appellate court opined that the state’s Professional Service Corporation Act, which required a corporation to repurchase the shares of a shareholder who was “no longer qualified,” simply referred to shareholders who were no longer licensed in the profession and did not include those shareholders who were still licensed but whose employment relationship with the professional corporation had terminated. Trittipo v. O’Brien, 204 Ill.App.3d 662, 149 Ill.Dec. 505, 561 N.E.2d 1201, 1204-05 (1990). The court also commented that pursuant to the Act, licensed shareholders were not obligated to practice their profession at all; they were merely required to be licensed. Id. 149 Ill.Dec. 505, 561 N.E.2d at 1205. Hence, because the plaintiff-attorney remained licensed to practice law, the applicable statute did not require that the law firm purchase his shares. Id. Finally, the court also commented that possible ethical difficulties did not warrant unauthorized court intervention. Id. 149 Ill.Dec. 505, 561 N.E.2d at 1208. ¶ 29 We, too, recognize that the result in the instant case may expose the parties to risks of ethical improprieties; but that does not empower this court to ignore the clear language of the current Act. It simply is not our duty to legislate. See In re B.S., 205 Ariz. 611, 618, ¶ 31, 74 P.3d 285, 292 (App.2003) (court cannot add statutory requirements); State ex rel. Lassen v. Harpham, 2 Ariz.App. 478, 487, 410 P.2d 100, 109 (1966) (court may not “judicially legislate” by adding provisions to a statute). Although another result might be preferable, given the legislative history and the plain statutory language before us, our conclusion is mandated. See Cohen v. State, 121 Ariz. 6, 9, 588 P.2d 299, 302 (1978) (“[A] court should avoid legislating a particular result by judicial construction.”). Unjust Enrichment ¶ 30 Fearnow’s alternative theory of recovery, unjust enrichment, also fails. “Unjust enrichment occurs when one party has and retains money or benefits that in justice and equity belong to another.” Trustmark Ins. Co. v. Bank One, Ariz., N.A., 202 Ariz. 535, 541, ¶ 31, 48 P.3d 485, 491 (App.2002). In the present case, RSCE has not been unjustly enriched. ¶ 31 Here, RSCE has not retained anything that belongs to Fearnow. Fearnow still owns his share in the professional corporation. Accordingly, he may exercise all shareholder rights afforded by the Professional Corporation Act. See A.R.S. § 10-2202; A.R.S. §§ 10-001 to -1702 (2004). Although Fearnow’s share may be less valuable now that he has left the firm, he cannot claim that he is left with fewer shareholder rights. CONCLUSION ¶ 32 For the foregoing reasons, we affirm the trial court’s ruling that the Shareholder Agreement is void, but reverse the order requiring that RSCE purchase the share from Fearnow pursuant to the Act. CONCURRING: MAURICE PORTLEY, Presiding Judge and DONN KESSLER, Judge. . Arizona Revised Statutes ("A.R.S.”) §§ 10-2201 to -2249 (2004). . Although not at issue in this matter, the trial court also found invalid § 3(b) of the Agreement, governing "Retirement" of a stockholder. This provision initially required that RSCE repurchase a Stockholder's Share upon his or her retirement. However, it required a Stockholder who had retired and then resumed the private practice of law within five years to repay RSCE any amounts received for that Share, plus 10% interest. . ER 1.0 defines "partner” as both a member of a partnership and a shareholder in a law firm organized as a professional corporation. Rule 42, Ariz. R. Sup.Ct. . Subsection (a) of ER 5.6 was amended on June 9, 2003, effective December 1, 2003, to read: A lawyer shall not participate in offering or making: (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retire-ment____ . In Valley Medical, the Arizona Supreme Court analyzed a restrictive covenant between Steven Farber, a doctor, and the professional corporation where he worked, Valley Medical Specialists ("Valley Medical”). That covenant precluded Dr. Farber from competing with Valley Medical for three years within a five mile radius of any of the corporation's offices, and also prohibited him from asking any present or future patients of Valley Medical to leave Valley Medical, from disclosing the identity of those patients to other Valley Medical competitors, and from providing medical care to any of Valley Medical's former patients. Id. at 365, ¶ 3, 982 P.2d at 1279. The agreement allowed Valley Medical to obtain an injunction against Dr. Farber, as well as liquidated damages, for any violation of those restrictions. Id. Accordingly, the agreement restricted Dr. Farber’s right to practice medicine. . RSCE also argues that Fearnow cannot claim a breach of the Ethical Rules in order to avoid a contractual obligation that he advocated, and from which he benefitted. Even accepting that as true, however, we refuse to enforce a contract that is void as against public policy. Western Corrections Group, Inc. v. Tierney, 208 Ariz. 583, 589, ¶ 24, 96 P.3d 1070, 1076 (App.2004). Our refusal to do so is in line with other jurisdictions. See White v. Medical Review Consultants, Inc., 831 S.W.2d 662, 665 (Mo.Ct.App.1992)(refusing defense of estoppel and unclean hands in action invalidating lawyer contract under ER 5.6); Cohen, 75 N.Y.2d 95, 551 N.Y.S.2d 157, 550 N.E.2d 410(invalidating agreement for public policy reasons even though plaintiff had accepted benefits of agreement for years). . A.R.S. § 10-909(D) provided: Within ninety days following the death, insanity, bankruptcy, retirement, resignation, expulsion or other legal disqualification of a shareholder, all of the shares of such shareholder shall be transferred to or acquired by persons qualified to own such shares or by the corporation. Until such transfer is effected such shares shall not be entitled to be voted. Either in its articles of incorporation or its bylaws, the corporation shall fix the price or method of computing the same together with the schedule of payment therefor, for acquiring such shares, in the event the shares are not otherwise acquired within said ninely days by person qualified to own the same. . 0£ course, nothing prevents a professional corporation from providing for the repurchase of a resigning shareholder’s shares. Today we merely hold that there is not a remedy under the Act that provides for the mandatory repurchase of such shares as long as the departing shareholder remains licensed. . Fearnow may "well be left in the unfortunate position of owning unmarketable shares of stock,” but this is "generally true of the minority shareholders in all close corporations.” Corlett, ¿jyg g0 2¿ at 834

OPINION ECKERSTROM, Judge. ¶ 1 Appellant Kevin Albert Johnson was convicted after a jury trial of attempted sexual assault, burglary in the second degree, and theft of a credit card. The trial court sentenced him to concurrent, presumptive prison terms of 3.5 years each on the attempted sexual assault and burglary convictions and 1.5 years on the theft conviction. On appeal, he argues that the evidence is insufficient to support his attempted sexual assault conviction and that his sentences were imposed in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We affirm. ¶2 We view the facts in the light most favorable to sustaining Johnson’s convictions. See State v. Oaks, 209 Ariz. 432, ¶ 2, 104 P.3d 163, 164 (App.2004). During a social gathering at a neighbor’s house, D. invited several acquaintances including Johnson to her own house to socialize and drink some alcohol. A short time later, D. told her guests that she needed to go to sleep; they all left, she turned off the lights, locked the door, and went to sleep. ¶ 3 D. awoke to find Johnson on top of her, kissing her inner thigh and trying to take off her underwear. She pushed him away and asked how he had entered her house. Johnson said that she had let him in. D. replied that she would remember having let him in and asked him to leave. Johnson left her bedroom, but when D. went into the living room to look for her cellular telephone, she saw Johnson in the kitchen, crouched between the stove and the water heater and holding what appeared to be a bundled shirt near his chest. She again asked him to leave and, when he went out the front door, she locked it behind him. After discovering that her kitchen window had been broken and some of her possessions were missing, she ran to a nearby convenience store to call 911. ¶ 4 D. later had a sexual assault examination. A sample collected from her inner thigh was found to contain a mixture of her and Johnson’s deoxyribonucleic add (DNA). When police officers searched her house, they found a knife on her bed that matched knives in her kitchen. The officers also found an electrical cord that had been cut from her toaster by her bedroom door and one from a power strip by the front door. Police located Johnson outside a nearby apartment complex. When officers searched his vehicle, they found D.’s cellular telephone, credit cards, and some of her jewelry inside. ¶ 5 Johnson argues that his conviction for attempted sexual assault is not supported by sufficient evidence and, therefore, violates his due process rights. He maintains that his acts were “mere[ly] preparatory and equivocal ... and not the substantial step and intent required for the offense of attempt.” When reviewing whether sufficient evidence supports a criminal conviction, we determine if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). “To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury.” State v. Arre-dondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). In making this assessment, we view the evidence in the light most favorable to sustaining the verdict. Id. ¶ 6 Here, we must assess whether the state presented sufficient evidence from which a jury could conclude beyond a reasonable doubt that (1) Johnson had intended to commit a sexual assault and (2) that he had intentionally taken any “step in a course of conduct planned to culminate” in the commission of a sexual assault. A.R.S. § 13-1001(A)(2); see also State v. Fristoe, 135 Ariz. 25, 29-30, 658 P.2d 825, 829-30 (App.1982) (“any step” equivalent to “substantial step” for purposes of attempt statute). A person commits sexual assault by intentionally or knowingly engaging in oral sexual contact with another person without that person’s consent. AR.S. § 13-1406(A). ¶ 7 D.’s testimony that she had awakened to find Johnson on top of her, kissing her thigh, and trying to pull down her underwear; the testimony that Johnson’s DNA had been found on her thigh; the testimony about the knife found on her bed; and the testimony about the cut electrical cords constitute evidence from which a rational jury could have found beyond a reasonable doubt that Johnson had taken a substantial step toward engaging in sexual contact with D. without her consent. We find no error in the jury’s verdict. ¶ 8 Johnson also argues that he was sentenced in violation of Blakely. The state maintains that Johnson has waived the claim because he failed to raise it before the trial court. Assuming without deciding that Johnson’s failure to raise the claim waived it, we may grant relief notwithstanding waiver if we conclude fundamental error occurred. See State v. White, 194 Ariz. 344, ¶ 45, 982 P.2d 819, 829 (1999). We have previously found that a trial court’s imposition of a sentence in violation of a defendant’s right to a jury trial constitutes an illegal sentence and is therefore fundamental error. State v. Timmons, 209 Ariz. 403, ¶ 5, 103 P.3d 315, 317-18 (App.2005); State v. Resendis-Felix, 209 Ariz. 292, ¶ 6, 100 P.3d 457, 459 (App.2004). Accordingly, we address Johnson’s claim to determine whether he received illegal sentences. We review de novo questions of law, such as a challenge to the legality of a sentence. State v. Alvarez, 205 Ariz. 110, ¶ 6, 67 P.3d 706, 709 (App.2003). ¶ 9 Johnson claims that, although the trial court did not impose aggravated sentences, it “improperly found and weighed the aggravating factor of emotional harm to the victim in determining [his] sentence[s].” “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a rea sonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000). In Blakely, the Court clarified that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” 542 U.S. at -, 124 S.Ct. at 2537. ¶ 10 Under Arizona’s noncapital sentencing statutes, the maximum punishment authorized by a jury verdict alone, without the finding of any additional facts, is the presumptive term. See A.R.S. §§ 13-701(C) and 13~702(A) (setting forth presumptive prison terms as required punishment absent trial court’s finding any aggravating or mitigating factors). Indeed, the Arizona Supreme Court has specifically found that the maximum sentence for the purposes of Apprendi analysis is the presumptive term. State v. Brown, 209 Ariz. 200, ¶ 12, 99 P.3d 15, 18 (2004). Although the trial court considered and found an aggravating factor not proved to the jury in determining Johnson’s sentences, it ultimately imposed presumptive terms. Because that punishment does not exceed the statutory maximum allowed by the jury verdicts alone, the trial court did not violate the requirements of Apprendi and Blakely. ¶ 11 Johnson argues that the trial court’s mere consideration of an aggravating factor not proved to the jury was a violation of his right to a jury trial on all the facts essential to his punishment — even if his ultimate sentences do not exceed the statutory maximum authorized by the verdicts. Specifically, Johnson maintains that his rights were violated the moment he was “exposed to or subjected to the risk of an aggravated sentence” based on the court’s improper consideration of an aggravating circumstance not found by the jury. There is language in both Apprendi and Blakely, and in cases of our own, that supports this argument. See, e.g., Apprendi, 530 U.S. at 483, 120 S.Ct. at 2359, 147 L.Ed.2d at 450 (suggesting trial court exceeds constitutional boundaries if it makes a determination that “exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone”) (first emphasis added); Blakely, 542 U.S. at - n. 5, 124 S.Ct. at 2536 n. 5 (“‘[Ejvery fact which is legally essential to the punishment’ must be charged in the indictment and proved to a jury.”), quoting 1 J. Bishop, Criminal Procedure ch. 6, at 50-56 (2d ed. 1872); State v. Benenati, 203 Ariz. 235, ¶ 13, 52 P.3d 804, 808 (App.2002) (“[W]e choose to follow Apprendi’s logic, and Ring’s [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002),] clear message, that a fact exposing a defendant to increased sentencing, not the actual sentence imposed, is the litmus test.”); see also State v. Pitre, 210 Ariz. 93, ¶ 17, 107 P.3d 939, 944 (App.2005) (referring to “a defendant’s constitutional right to have the jury find all factors that expose him to a sentence beyond the statutory maximum”) (second emphasis added). And, we do not dispute that the aggravating factors played an essential role in the punishment the trial court chose for Johnson. ¶ 12 But the Supreme Court has also repeatedly emphasized since deciding Appren-di that trial courts may freely consider other sentencing factors not found by a jury in choosing a specific punishment that does not exceed the statutory maximum as defined in Apprendi. As the Court cautioned in Ap-prendi: “We should be clear that nothing in [this case] suggests that it is impermissible for judges to ... [take] into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute.” 530 U.S. at 481, 120 S.Ct. at 2358, 147 L.Ed.2d at 449; see also Harris v. United States, 536 U.S. 545, 558, 122 S.Ct. 2406, 2415, 153 L.Ed.2d 524, 538 (2002) (“Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial and reasonable-doubt components of the Fifth and Sixth Amendments.”); United States v. Booker, 542 U.S. -, 125 S.Ct. 738, 750, 160 L.Ed.2d 621 (2005) (same). Moreover, in context, the Supreme Court has described those facts “ ‘legally essential to the punishment’ ” as nothing more than those that justify the statutory maximum, in this case, the jury verdicts. Blakely, 542 U.S. at -, 124 S.Ct. at 2537, quoting Bishop, at 50-56. Thus, notwithstanding the Court’s use of broad language in some instances when it described the scope of a defendant’s right to a jury trial as to facts that determine punishment, it repeatedly has clarified that no constitutional violation occurs if the ultimate sentence falls within the range authorized by the jury verdict alone. ¶ 13 Arizona courts that have squarely addressed the problem in light of the recent clarifications of the issue articulated in Blakely, as subsequently confirmed by Booker, have come to the same conclusion. State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 34, 99 P.3d 35, 42-43 (App.2004) (finding no Sixth Amendment violation when trial court weighs non-Bfatóy-compliant aggravating circumstances against mitigating circumstances and resulting sentence is below the presumptive); State v. Munninger, 209 Ariz. 473, ¶ 20, 104 P.3d 204, 211 (App.2005) (commenting that “the use of a judge-found aggravating factor to increase the minimum sentence ... is not a Blakely problem because the right to jury trial applies only if the factor increases the sentence beyond that which can be imposed based solely on the jury verdict, i.e., a presumptive sentence under Arizona’s sentencing scheme”) (citation omitted). We therefore hold that the trial court did not err when it considered an aggravating circumstance not found by the jury in sentencing Johnson, because it did not rely on that circumstance to increase his punishment beyond the maximum authorized by the jury verdicts alone. ¶ 14 Johnson also challenges the constitutionality of Arizona’s noncapital sentencing statutes in light of Blakely. We summarily reject this argument for the reasons stated in State v. Timmons, 209 Ariz. 403, ¶¶ 16-19, 103 P.3d 315, 320 (App.2005); accord State ex rel. Smith v. Conn, 209 Ariz. 195, ¶¶ 6-7, 98 P.3d 881, 883 (App.2004). ¶ 15 Affirmed. CONCURRING: JOSEPH W. HOWARD, Presiding Judge, and J. WILLIAM BRAMMER, JR., Judge. . Because the trial court was not required to specify either aggravating factors or mitigating factors in imposing presumptive sentences, see State v. Bly, 127 Ariz. 370, 373, 621 P.2d 279, 282 (1980), we can only conclude that the court believed the analysis of both factors was integral to its ultimate conclusion.

McFarland, Justice. William Ellis Van Winkle, hereinafter referred to as defendant, was tried and convicted of five counts of rape second degree and one count lewd and lascivious acts and was sentenced to serve not less than seven and one-half years nor more than fifteen years in the Arizona State Penitentiary upon each count to run concurrently. From his conviction and sentence he appeals. On June 26, 1969, defendant was tried upon an information charging that on August 22, 1968, through August 26th inclusive, defendant on five separate occasions had raped his fourteen year old daughter and on one of these occasions committed a lewd and lascivious act upon her. The complaining witness testified to the events charged and that prior thereto the defendant had molested her over a period of several years. An older sister testified that she had been subjected to such sexual aggressions by her father, the defendant, over a ten year period. She said the acts terminated after she complained to school officials and her mother some eight months before the events referred to in the information. On July 2, 1969, the jury found defendant guilty and after denying defendant’s motion for a new trial the court sentenced him on July 11, 1969, to six concurrent terms commencing on the date of sentencing and no credit was given defendant for the pre-trial incarceration. Pie had been confined from the date of arrest September 24, 1968, to May 14, 1969, when released on his own recognizance. The defendant’s first contention was that he was subjected to double jeopardy and punishment in violation of the Federal Constitution due to the court’s failure to credit him with the time spent in confinement prior to his trial. The court was informed by defense counsel of the time he had spent in jail before trial. We cannot say from the record that the court failed to take such fact into consideration in arriving at the sentence. The trial court liad discretion of imposing a maximum of life imprisonment on each charge and the court could have made the sentences consecutive instead of concurrent. The defendant cites North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, in support of his position. However, the question there was not whether a defendant should be given credit for time spent in jail before the first trial, but whether he could be given a longer sentence after his second trial and whether he is entitled to time spent in prison while his case was on appeal. This same question was before us in State v. Kennedy, 106 Ariz. 190, 472 P.2d 59, in which we held: “While a court may take into consideration the time served in jail prior to sentence it is held to be not a matter of right but discretionary with the trial court. [Cases cited.]” Defendant contends that the evidence, “if any, balanced in his favor” and that errors therefore were not harmless. He in effect states it was the errors which caused the jury to find him guilty. We cannot upon the record agree with defendant. The evidence of defendant’s guilt was substantial in view of the testimony of the second child that she had for over ten years been exposed to such aggressions as often as once a week. This evidence was admitted without objection, showing a system, plan and scheme. State v. Goldsmith, 104 Ariz. 226, 450 P.2d 684; State v. Parker, 106 Ariz. 54, 470 P.2d 461; Taylor v. State, 55 Ariz. 13, 97 P.2d 543. Defendant’s principal contention is that the court failed to grant a mistrial when the deputy county attorney improperly read from the deposition of defendant’s witness the question “Have you ever been convicted of a felony?” The following then took place: “THE COURT: Objection sustained. We discussed that matter in chambers. I think it improper to read the question. “MR. PETERSON: I would like to make a record. “THE COURT: The question may be stricken and the jury instructed to disregard the question as though it was not asked. Just erase it from your minds. “MR. PETERSON: I would still like to make a record. (Thereupon the following occurred at the bench outside the hearing of the jury.) “MR. PETERSON: The defendant will move for a mistrial on the statement of the prosecuting attorney, Roger Garrett, reading the question, ‘Have you ever been convicted of a felony.’ The Court had previously ordered Mr. Garrett that no reference would be made to that question or matter. “THE COURT: Motion will be denied. You may proceed. (Thereupon the following occurred in open Court before the jury.) “MR. PETERSON: I think that concludes the deposition. “THE COURT: I think it should be explained to the jury as a matter of fairness, the deposition does not show that the witness has been convicted of a felony, because the question raises that inference. The deposition does not show that. “I am sure it was inadvertent on the part of counsel.” When a person offers himself as a witness he may be examined on whether he has suffered a previous conviction of a felony. State v. Polan, 78 Ariz. 253, 278 P.2d 432; Hadley v. State, 25 Ariz. 23, 212 P. 458. Plowever, a prosecuting officer, in order to impeach such witness, cannot engage in questions which cast insinuations without being prepared and able to prove the insinuations. State v. Stago, 82 Ariz. 285, 312 P.2d 160; State v. Singleton, 66 Ariz. 49, 182 P.2d 920. When such witness is the defendant this court has held that the prejudice aroused is such that it is reversible error. In the instant case such question was read from a prepared transcript of a witness’ testimony, and may have been as the judge commented, inadvertent. ' The proceedings were stopped and the court commented on the fact that the deposition did not show that the witness had been convicted of a felony. It could be argued that in the instant case the state and not the defendant was prejudiced by the incident. In State v. Singleton, supra, we said: “Under the interpretation we consistently have given sec. 22, Art. 6 of the State Constitution, the mere fact of error does not raise a conclusive presumption of prejudice. It is our duty, notwithstanding error, to examine the record and ascertain therefrom whether the error was, in fact, prejudicial to the accused. Comancho v. State, 39 Ariz. 556, 8 P.2d 772. While we appreciate the fact that, due to the human equation, no case was ever so perfectly tried that it could not be subject to some criticism, State v. King, 66 Ariz. 42, 182 P.2d 915, still one accused of crime, particularly a man on trial for his life, is entitled to a fair and impartial trial which does not violate any of his substantial rights. The test which we must apply is: Had the errors heretofore pointed out not been committed, is there reasonable probability that the verdict might have been different? In answering this question, the Supreme Court puts itself as nearly as possible in the position of the jury. Turley v. State, 48 Ariz. 61, 59 P.2d 312.” At page 66, 182 P.2d at page 930. The trial court twice considered this complained of error and refused to grant a mistrial or after conviction a new trial, both being within the trial court’s discretion. We are therefore impressed with the fact that the court believed that it was harmless error. We agree, considering the nature of the witness’ testimony. In substance the witness testified that both the complaining witness and her older sister admitted that for various personal reasons they lied when they accused their father of improper acts. We do not believe that the asking of the question was prejudicial error since the court told the jury the witness had not been convicted of a felony. Defendant contends that it was error for the trial court to exclude the testimony by written interrogatories of two character witnesses. One such witness had been an employer and friend of defendant in California where defendant lived some three years prior to this trial. The other witness had been a minister at defendant’s church. Although he had visited defendant’s home 10 or 12 times his acquaintanceship was limited to defendant being a member of the congregation, the latter having moved from the community in 1967, two years prior to the trial. Both attempted to establish that defendant had a good reputation for honesty and integrity in the community. Counsel for defense had argued the question of admission of such interrogatories in chambers and when the court refused their admission into evidence no record was made of the reason for such ruling or argument concerning their admission. The admission of such evidence was discretionary with the court and in the absence of the record we must conclude the court did not abuse its discretion. Burnett v. State, 34 Ariz. 129, 268 P. 611; Strickland v. State, 37 Ariz. 368, 294 P. 617; United States v. Chung Sing, 4 Ariz. 217, 36 P. 205 (1894). Defendant contends that it was error for the court to overrule his objection to testimony of the complaining witness that the defendant kept track of her menstrual cycle on the grounds that it was hearsay. While the witness testified “My Mom told us” she also said “and we knew he did, and we didn’t particularly like it”, which shows she was testifying from her own knowledge. The defendant in his testimony admitted such knowledge but said it was obtained incidental to shopping for the family needs. Under these facts there was no prejudicial error. Judgment affirmed. LOCKWOOD, C. J., and HAYS, J., concur.

UDALL, Justice: The Employment Security Commission, hereinafter referred to as the Commission, seeks review of the judgment of the Superior Court, Pima County, which awarded appellee, Charlotte Ann Kosic, unemployment benefits. The Court of Appeals affirmed the Superior Court, 12 Ariz. 455, 471 P.2d 757 (1970). This court granted the Commission’s petition for review. We hold that the claimant, Mrs. Kosic, is not entitled to the benefits awarded by the Superior Court. The opinion of the Court of Appeals, 12 Ariz.App. 455, 471 P.2d 757 (1970), is vacated. The basic facts can be simply summarized. The claimant was employed for approximately six months, until June of 1967, as a part time salesclerk in a Tucson department store. In August of 1967 she, her husband and their three children moved from Tucson to Sells, Arizona. Sells is a small settlement, located 61 miles from Tucson on the Papago Indian Reservation. The claimant’s husband is employed as a schoolteacher on the reservation. The family’s move to Sells was necessitated by a federal government requirement that he live on the reservation. The claimant sought work in Sells as a retail sales clerk. There were, however, in the area of Sells, no retail stores such as existed in Tucson. There were only two Indian “trading posts” employing a total of approximately twenty persons. With the exception of the family of the owners, only Indians were employed in the trading posts. Claimant was unable to obtain work there and sought unemployment compensation. The Employment Security Commission and the Appeal Tribunal both ruled that the claimant was not entitled to benefits because she was not “available for work” within the meaning of A.R.S. § 23-771. That section provides in part as follows: “An unemployed individual shall be eligible to receive benefits with respect to any week only if the commission finds that ‡ 3. He is able to work, and is available for work.” A leading authority in this area has commented that in order to be considered available for work, an individual must be “genuinely attached to a labor market” and the services which he or she offers must be generally performed in the geographical area in which he or she offers the services. Freeman, Able to Work and Available for Work, 55 Yale Law Journal, 123, 124 (1945). Our own court has commented as follows with respect to the requirement in Cramer v. Employment Security Commission of Arizona, 90 Ariz. 350, 353, 367 P.2d 956, 958 (1962); “Availability is an eligibility requirement found in the unemployment compensation law of every state. Although it has never been and probably cannot be precisely defined, Mohler v. Department of Labor, 409 Ill. 79, 83, 97 N.E.2d 762, 764, 24 A.L.R.2d 1393 (1951), it ‘is said to be satisfied when an individual is willing, able, and ready to accept suitable work which he does not have good cause to refuse, that is, when he is genuinely attached to the labor market.’ Freeman, Able to Work and Available for Work, 55 Yale L.J. 123, 124 (1945); Beaman v. Safeway Stores, 78 Ariz. 195, 200, 277 P.2d 1010, 1013 (1954). There being no hard and fast rule as to when a claimant is actually ‘available for work’, such must be determined from and in light of the circumstances of each case. Hunter v. Miller, 148 Neb. 402, 405, 27 N.W.2d 638, 640 (1947).” Another leading authority has concluded that “there is virtual unanimity that the worker is unavailable who leaves a locality of industrial activity and moves to an area where little or no opportunity exists for work within his qualifications.” Altman, Availability For Work (1950), pp. 206-7. See also Claim of Sapp, 75 Idaho 65, 266 P.2d 1027 (1954) wherein the court held that claimant who, while unemployed, moved to a much smaller city, where few job opportunities existed and employment prospects were extremely limited, was not “available for work” and therefore not entitled to unemployment benefits. Bearing these general considerations in mind we must examine the facts in the instant case. Here the claimant moved from an area of great commercial activity to a remote settlement where only a few persons performed the services she offered. In addition, and perhaps more importantly, claimant moved to an Indian reservation, where, because of peculiar legal, social and economic considerations, opportunities for claimant were extremely limited. As the record here reflects, businesses on or near Indian reservations give preferential hiring treatment to Indians. Under the unusual situation presented here, there was little or no market for claimant’s services. Our decision should not in any sense be interpreted as suggesting that vacancies must exist before a claimant is eligible for compensation. We recognize that the purpose of unemployment compensation is to compensate for lack of job vacancies where the claimant is otherwise available for employment. See Cramer v. Employment Security Commission, supra. However our review of the authorities shows that in order for claimant to be “available for work”, the claimant must be genuinely attached to a labor market. In the unusual circumstances of the case at bar, the claimant moved to an Indian reservation and was unable to find employment in the limited number of existing commercial positions because of preferential treatment given Indians. We conclude that she was not genuinely attached to the labor market of that reservation and hence was not available for work. Claimant points to Parsons v. Employment Security Commission, 71 N.M. 405, 379 P.2d 57 (1963), and urges that it is contrary to .the decision we reach today. In Parsons v. Employment Security Commission, supra, the New Mexico Court held that a claimant who sought work as a grocery store clerk in a small settlement with only one such clerk was nevertheless entitled to unemployment compensation. The Parsons decision has been criticized by at least one authority. Comment, 112 Penn.Law Review 296 (1963). It is not necessary to discuss its merits in detail here since, unlike the case at bar, it did not involve the special consideration presented by a claimant seeking work on an Indian reservation. The judgment of the Superior Court is reversed and the opinion of the Court of Appeals, 12 Ariz.App. 455, 471 P.2d 757 (1970), is vacated LOCKWOOD, C. J., STRUCICMEYER, V. C. J., and HAYS and McFARLAND, JJ., concur. . 42 TJ.S.C. § 2000e-2(i) exempts businesses extending preferential treatment to Indians on or near a reservation from the provisions of the Federal “Equal Em ployment Opportunities” Act, 42 U.S.C. § 2000e et seq. A.K.S. § 41-1464 contains a similar exemption from the Arizona employment discrimination laws, A.K.S. § 41-1461 et seq.

UDALL, Justice. James Thomas Adair, hereinafter referred to as the defendant, was tried and convicted of robbery in Superior Court, Maricopa County. He appeals that conviction and sentence of 10 to 20 years on three grounds: first that the County Attorney, by repeatedly terming the evidence “uncontradicted”, improperly commented on defendant’s failure to take the stand; secondly that the County Attorney improperly and prejudicially injected his personal beliefs into argument to the jury, and thirdly that defendant was denied his constitutional right to a speedy trial. We deal initially with the third of defendant’s grounds for appeal, i.e. that he was denied his right to a speedy trial. Consideration of this issue necessitates a somewhat detailed examination of the history of this matter. The defendant was arrested on September 29, 1967. The preliminary hearing was held on October 6, 1967 and an information was filed against him in Superior Court on October 18, charging him with robbery. The defendant was arraigned on October 23, 1967 at which time a plea of not guilty was entered. Defendant waived the 60-day period for trial. Following stipulated continuances, the defendant on May 9, 1968 changed his plea to guilty, and on May 23, 1968 his attorney moved for physicians to be appointed to examine defendant’s mental condition. This motion was granted. On July 11, 1968, after the medical examination, defendant withdrew his plea of guilty and trial was set for August 20. On August 20 the defendant was present with counsel when the County Attorney moved for continuance until August 22. On August 22 the County Attorney moved for another continuance because a main witness could not be contacted. The trial judge, on August 22, ordered the matter continued until September 9, 1968, but with the proviso that if “service cannot be had * * * of the witness, John R. Young, prior to that time to assure his presence, the case will then stand dismissed.” While the record is not altogether clear, it appears that the order was entered by Judge Farley sitting for Judge Glenn. Defendant impliedly concedes here that had trial been held on September 9, there would have been no arguable violation of his rights to a speedy trial. The matter however did not come to trial on September 9. Four days before that date, on September 5, 1968 counsel for the defendant moved for a change of judge. Defendant was not present at the time this motion was made. The motion was granted and the case transferred to Judge Hays who scheduled a new trial date for September 12. On September 11, the day before the new trial date, the defendant’s counsel resigned from the Public Defender’s Office, thereby necessitating a change in counsel. The newly-appointed counsel understandably felt that additional time was required for him to prepare the defense. He therefore by written motion requested a continuance. This motion was also granted and a new trial date set for November 7. The case did come to trial on November 7, but a mistrial was declared. A further continuance was granted until December 6, 1968. The record indicates that defendant was incarcerated for a substantial portion of the 14 months between the filing of the information and the trial. On December 6 the case again was called to trial, at which time defendant himself protested that the September 5 request for change of judge had been made by his counsel without defendant’s knowledge and that continuances had been granted without defendant’s knowledge. Arguments were had in chambers and the trial judge denied defendant’s motion for dismissal. A new jury was empaneled and the case was tried, resulting in the conviction herein appealed. It is defendant’s position here that he was denied his right to a speedy trial. Defendant, who is now represented by other counsel, points to the minute order of Judge Farley of August 22, which stated that if the state was not ready for trial by September 9, the case would be dismissed. Defendant stresses that the record indicates the state could not in fact have been ready for trial on the 9th. Defendant concludes that September 9 established the upper limit for his trial and that the delays in the trial following September 5 constituted a denial of his right to a speedy trial. A criminal defendant’s right to a speedy trial is protected by the Constitution of Arizona, Article 2, Sec. 24, A.R.S., and by Rule 236, Arizona Rules of Criminal Procedure, 17 A.R.S. The right is also delineated by the 6th Amendment to the United States Constitution, and this right has been held applicable to the states. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The right to a speedy trial may, however, like other constitutionally protected rights, be waived. Westover v. State, 66 Ariz. 145, 185 P.2d 315 (1947) ; Application of Hitchcock, D.C., 199 F.Supp. 228, cert. denied 369 U.S. 857, 82 S.Ct. 944, 8 L.Ed.2d 15, cert. denied Hitchcock v. Eyman, 376 U.S. 924, 84 S.Ct. 684, 11 L.Ed.2d 619 (D.Ariz.1961); State v. Greer, 7 Ariz.App. 155, 436 P.2d 933 (1968). Generally the right to a speedy trial is waived unless it is promptly asserted. White v. Wilson, 399 F.2d 596 (9th Cir.1968). See also Chapman v. United States, 376 F.2d 705, cert. denied 389 U.S. 881, 88 S.Ct. 119, 19 L.Ed.2d 174 (2d Cir.1967). The right to a speedy trial is relative, and delay is consistant with that right so long as the delay is not “purposeful or oppressive.” United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) ; Maguire v. United States, 396 F. 2d 327, cert. denied 393 U.S. 1099, 89 S.Ct. 897, 21 L.Ed.2d 792 (9th Cir.1968) ; Maldonado v. Eyman, 377 F.2d 526 (9th Cir. 1967). In examining defendant’s position we must look closely at the facts in the record explaining the delay in the trial after September 5. While defendant now asserts that the request for a change of judge on September 5 was the cause of the delay, the facts show otherwise. In actuality the trial was scheduled by the new judge for September 12, only three days after September 9, but was continued past that date because of the appointment of new counsel for the defendant. While defendant now suggests that there was no valid reason for the change of judge, the transcript indicates the change was made because of a possible conflict of interest. It must be borne in mind that the case did come to trial on November 7, in the presence of defendant. After a mistrial was declared, the trial was further delayed on motion of defendant’s counsel. We cannot hold that the delay complained of in the instant case was without cause, or oppressive. The substantial continuance now specifically objected to by defendant was that requested on September 11. Yet that continuance was requested by defendant’s own counsel for justifiable cause in view of the difficulties in properly defending a client the day after being assigned as counsel. See State v. McWilliams, 103 Ariz. 500, 446 P.2d 229 (1968), wherein this court held that the trial court’s forcing defense counsel to trial with only three days notice was reversible error. We can find no adequate support in the record for defendant’s charge that the acts of his counsel were the product of “mistake, inadvertence or ignorance.” See Henry v. Williams, D.C., 299 F.Supp. 36, 49 (1969). Defendant argues that the acts of his counsel in requesting a change of judge and moving for a continuance could not act as a waiver of defendant’s right to a speedy trial. Defendant’s argument ignores the fact that normally acts of counsel to seek delays on behalf of his client are binding on the defendant. Application of Hitchcock, supra. We recognize that unusual . situations may occur, and this court disapproves of repeated requests for continuances •without the knowledge or presence of defendant. In the circumstances of this case, however, we hold that the delays in the scheduling of the trial did not constitute a deprivation of defendant’s right to a speedy trial. We turn next to defendant’s contention that the County Attorney in his closing argument, by repeatedly terming the evidence “uneontradicted”, improperly commented upon defendant’s failure to take the stand, and thus committed reversible error. In Arizona the defendant has a statutory right to protection against comment by the prosecution on defendant’s failure to testify. A.R.S. § 13-163, subsec. B. The United States Supreme Court in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) held that the privilege against self-incrimination of the Fifth Amendment to the United States Constitution forbids such comment and is applicable to the states. However, as this court stated in State v. Pierson, 102 Ariz. 90, 91, 425 P.2d 115 116, (1967), “not every statement directed at the accused’s evidence, or lack of it, violates his constitutional rights.” This court in Pierson went on to point out ' that under federal cases “the Fifth Amendment is violated only if the statements will call the jury’s attention to the fact that defendant has not testified in his own behalf.” Edwards v. Patterson, 249 F.Supp. 311 (D.Colo.1965); Knowles v. United States, 224 F.2d 168 (10th Cir. 1955). See also State v. Burrell, 102 Ariz. 136, 426 P.2d 633 (1967); Tomaris v. State, 71 Ariz. 147, 224 P.2d 209 (1950); State v. Ashby, 459 P.2d 403 (Wash.1969). In the instant case defendant urges that the repeated references to the uncontradicted nature of the evidence showed a “studied and determined purpose” on the part of the prosecutor to call attention to defendant’s failure to testify. Upon careful examination of the transcript, we must reject defendant’s contention in this regard. The prosecutor’s closing speech must be taken in the context of the trial. See State v. Pierson, supra. During the trial defendant’s counsel had endeavored to show contradictions and uncertainties concerning whether the defendant or his alleged accomplice had taken certain actions in the course of the robbery. The prosecutor’s closing argument was thus aimed at stressing the matters which were not contradicted. Taken in context his remarks did not unduly call attention to defendant’s failure to testify in his own behalf. Finally we consider defendant’s assertion that the conviction must be reversed because of improper and prejudicial remarks of the prosecutor in his closing argument relating to his personal belief in the guilt of the accused and also relating to the role of defense counsel in a trial. No objection by defense counsel was raised at the time the allegedly improper remarks were made or at any time prior to submission of the case to the jury. Wide latitude is given to counsel in their arguments to the jury. In all but the most unusual situations the law requires that opposing counsel timely object to any improper statements so that the jury may be instructed to disregard them. State v. Boozer, 80 Ariz. 8, 291 P.2d 786 (1955); State v. Titus, 61 Ariz. 493, 152 P.2d 129 (1944). See also State v. Abney, 103 Ariz. 294, 440 P.2d 914 (1968). Failure of counsel to object constitutes a waiver, and there is no basis for appeal. State v. Boozer, supra; State v. Evans, 88 Ariz. 364, 356 P.2d 1106 (1960), cert. denied, 371 U.S. 835, 83 S.Ct. 59, 9 L.Ed.2d 71. We have carefully reviewed the allegedly improper statements by the prosecutor in this case. These statements cannot constitute a ground for appeal because any such ground has been waived by failure to make a timely objection. We note also that even though no objection was made, the jury was instructed that arguments of counsel are not evidence and further that “if any comment of counsel has no basis in the evidence, you are to disregard that comment.” We believe that such instruction may well have corrected any prejudice which the prosecutor’s statements may have created. See State v. Abney, supra, State v. Propp, 104 Ariz. 466, 455 P.2d 263 (1969). Affirmed. LOCKWOOD, C. J., and McFARLAND, J., concur. . A major portion of the prosecutor’s remarks objected to here are contained in the following portion of the transcript: “We do have some confusion, that is quite true; the confusion is, did Mr. Taylor say this, or did Mr. Adair say this? Did Mr. Taylor say, T will blow your head off,’ or Mr. Adair say it? “I- cannot stress enough to yon, that is not really the issue here. It is uncontradicted that both gentlemen were in there. There is no claim that they were not in there, none. “It is uneontradicted that they were together.. No contradiction period. So they were there. You have no evidence to indicate to the contrary; it is uncon- • tradicted that Mr. Young was robbed. No evidence to indicate to the contrary. It is uneontradicted that there was— MR. CHESTER: “Your Honor, I object to the County Attorney’s statement that it is uneontradicted. The defendant does not have to contradict anything. THE COURT: “The record may show your objection. Proceed. * * * * * What the contradictions are as to who said what, that is a contradiction at least as to Mr. Young’s testimony. No, as I was saying, it is uneontradicted that he was robbed. It is uneontradicted what was taken. It is uneontradicted that he was told to lie on the floor. It is uncontradicted that the gentlemen were driving a blue Ford station wagon from 1955. It is uneontradicted they had been in there earlier in the evening, and it is uncontradicted they left. . Defendant points to the following .statements by the prosecutor as an improper injection of bis personal beliefs in the closing argument to the jury: “During the course of this investigation, I am sure this discussion was had between the officers because you don't go off half-cocked investigating any case, just like you don’t go off prosecuting a case or defending one that way; you tie up your ends, and you try to find out if the defendant is guilty or innocent.” Defendant also urges that the following statements constituted an unfair and prejudicial commentary upon the role of defense counsel: “The job of the prosecution, the job of the defense attorney, they are two separate things. Well, look, compare them like a razor blade, because you havc two sides, and I use this a lot of times, but this is so applicable: You have the single edged razor blade and a double edged razor blade. Would it stand to reason the defense attorney would be indicative of a double-edged razor blade and look for both sides of evidence to present to the jury that his defendant was innocent or guilty? In other words, to show guilt as well as innocence? No, no, oh no. He shows one side. His job is to get his client off the rap, but the County Attorney has a burden to the people, not only to you the jury and to the public, but also to the defendant, because if anything turns up to indicate — well, if any evidence turns up it must be presented in the courtroom to you to indicate, as well as guilt, the innocence of the defendant.”

UDALL, Justice. In this case the defendant has appealed from a conviction of the crime of first-degree murder, in which the jury fixed the punishment at life imprisonment. The pertinent facts show that the defendant and his estranged wife, the deceased, met on the 3rd day of November, 1967, in the anteroom of the Juvenile Court of Maricopa County, Arizona. They met in connection with proceedings initiated by defendant to adopt the deceased’s minor child by a previous marriage. Very shortly after they met and had some discussion with counsel they both left the courthouse separately, apparently to go to their respective cars. Soon thereafter the defendant was seen pursuing the deceased, shooting at her near their parked cars on West Jefferson Street, Phoenix. The evidence shows that the defendant shot the victim five times, from which gunshot wounds she shortly thereafter died. Defendant first assigns as error the court’s refusal of defendant’s motion to replace his counsel, Louis L. Zussman, Deputy Public Defender, prior to the beginning of the trial. The motion was made in writing and in it the defendant made serious accusations against his counsel. He alleged that his counsel had called him a “no-good punk” and expressed a “wish that he get the gas chamber”. He further stated that counsel had said: “All I am good for is to go around shooting defenseless women.” He also made some trivial charges that were not supported by the evidence. Counsel denied making the serious accusations and either denied or explained the trivial accusations. The record shows that attorney Charles Hyder, of the Public Defender’s office, had first been appointed to represent the defendant but that defendant strenuously objected to representation by Hyder, for reasons that were not legally justified. Nonetheless Hyder willingly stepped aside and Zussman was appointed in his place. Zussman denied that he had ever demanded that defendant plead guilty but he did say that he had explained to him the nature of the charge of first-degree murder, and the consequences of a conviction of first-degree murder. After the court had conducted a rather exhaustive hearing on the question of the competency of counsel to represent the defendant, the court denied defendant’s motion to change the court-appointed attorney. In support of the court’s ruling, the record shows that Mr. Zussman did do a conscientious, capable job of defending the defendant. Counsel’s assurance to the court, at the time the motion was denied, was that he would do his best fairly to represent the defendant. The record shows he did fulfill his promise. The indigent defendant is not entitled to appointed counsel of his own choosing. A constitutional right to counsel is fulfilled when he is assigned counsel who is a qualified member of the Bar and acts diligently in the defendant’s behalf. Applications of Oppenheimer, 95 Ariz. 292, 389 P.2d 696, cert. denied, 377 U.S. 948, 84 S.Ct. 1359, 12 L.Ed.2d 311 (1964). See also Kruchten v. Eyman, 276 E.Supp. 858 (D.Ariz.1967), affirmed, 9 Cir., 406 F.2d 304. The defendant next contends that the court erred in not ordering oral testimony of the psychiatrists and other witnesses at the hearing to determine whether the defendant was capable of understanding the proceedings, and/or whether he was capable of assisting counsel in his defense. The defendant alleges that he was examined by one set of psychiatrists at the Arizona State Hospital, at which time his counsel did not cross-examine them. He asserts that due process and A.R.S. § 13-1621 (1968) required the trial court to hold an oral hearing to receive expert testimony bearing on defendant’s ability to understand the proceedings against him and his ability to assist in his own defense. A.R.S. § 13-1621 provides in pertinent part as follows: “§ 13-1621. Trial, conviction or punishment of persons suffering from mental illness or defect “A. A person shall not be tried, convicted or punished for a public offense while, as a result of a mental illness or defect, he is unable to understand the proceedings against him or to assist in his own defense. “B. At any time after arrest or service with a summons, a person charged with a crime may petition the superior court to determine whether he suffers from a mental illness or defect which renders him unable to understand the proceedings against him or to assist in his own defense. * * * * * * “E. Immediately after the examinations by experts contemplated by subsections C and D of this section, the court shall hold a hearing to determine, on the basis of the expert testimony, including the evaluation, report and testimony of an official of the institution to which the defendant may have been committed, plus any other evidence regarding the defendant’s mental condition introduced by either party, whether the defendant is able to understand the proceedings against him and to assist in his own defense. The parties may, by stipulation, waive oral testimony at this hearing. “F. All experts appointed by the court shall file reports and testify at the hearing contemplated by subsection E of this section. * * * ” Thus Subsection “E” clearly provides that the parties may by stipulation waive oral testimony at the hearing. It is further provided in Subsection “F” that all experts appointed by the court file reports and testify at the hearing “contemplated by Subsection ‘E’.” Thus it would appear that while an oral hearing could have been had under Subsection “E”, it likewise could have been waived by stipulation. There is no question that the written reports of the psychiatrists were filed and available to both parties in this case. The record shows that defendant was examined in early 1968 at the state hospital by three psychiatrists. All concluded the defendant was able to understand the proceedings and to assist with his defense. Upon request of defendant’s counsel in September, 1968, the defendant was reexamined. In ordering the re-examination the trial judge, in order to assure independent evaluations, stated that the doctors were not to exchange copies of their reports. It is apparent that these supplemental reports similarly concluded that the defendant was able to stand trial. On October 15, 1968, counsel for both parties appeared in court, at which time the trial judge asked whether there was any request for a formal hearing. Neither party so requested. At that time defendant’s counsel stated that he saw no reason for a formal hearing. The hearing was thereby waived. Under these circumstances, and since it is clear that defendant and his counsel had access to the reports of the psychiatrists, it was not error for the Court, with the assent of defendant’s counsel to proceed without oral examination of the psychiatrists. As a third assignment of error, the defendant contends that: “The Court erred in permitting photographs of physical evidence, into evidence, when the Court had excluded the physical evidence itself as being too inflammatory.” There is nothing in the evidence to indicate that the photographs, Exhibits 6-11, inclusive, which were admitted without objection, were prejudicial or that they tended to inflame the jury when offered for their consideration. In People v. Robbins, 225 Cal.App.2d 177, 37 Cal.Rptr. 244, 246, cert. denied; 382 U.S. 1017, 86 S.Ct. 631, 15 L.Ed.2d 531 (1964), the court states: “It is for the trial court to determine, from the evidence before it, whether a photograph offered is a correct representation of the object or scene in question, and the ruling will be sustained on appeal unless it is apparent that there has been an abuse of discretion.” See also State v. Chambers, 102 Ariz. 234, 428 P.2d 91 (1967). The defendant does not here contend that the photographs lacked probative value. We find no basis for holding that their introduction was an abuse of discretion on the part of the trial court. See State v. Brady, 105 Ariz. 190, 461 P.2d 488 (1969). In the fourth assignment of error, the defendant claims: “It is error to let the verdict stand as to the sanity of the accused.” The defendant contends that on the 3rd day of November, 1967, and for some time prior thereto, he had been drinking heavily; that he was addicted to the use of drugs, and that he had been using the same to the extent that he did not remember anything that happened on the day of the shooting. Defendant asserts that, in view of the alleged complete black-out of his mind occasioned by the quantities of liquor and drugs he had consumed, and also in view of the testimony of his landlady that in her opinion he was a paranoid, there was sufficient evidence upon which the court should have directed a verdict of acquittal, despite the testimony of a psychiatrist. The testimony cf defendant as to his drunken and drugged condition on the day of the alleged murder is rebutted by the witnesses for the state. The officer who arrested the defendant immediately after the shooting, and the truck-driver who was present at the time, testified that the defendant didn’t appear to be intoxicated. They further testified that when the officer ordered defendant to get out of his car with his hands up, the defendant did get out of his car with his hands as high as his head and he said to the officer, “Please don’t shoot me.” The testimony shows that defendant had gotten into his car to try to get away, but that he was thwarted in doing so by a truck-driver who maneuvered his truck in such a way that he blocked the avenue of escape. In those few moments after the shooting, defendant gave every indication of knowing what he was doing, and when he saw that he was cornered by an officer who had a gun in his hand, he had the presence of mind to plead for his life. We must conclude that the case was properly submitted to the jury. The judgment is affirmed. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and McFARLAND and HAYS, JJ., concur.

McFARLAND, Justice: David Allen Kennedy, hereinafter referred to as defendant, entered a plea of guilty to the charge of robbery, in violation of § 13-641, A.R.S., and § 13-643, A. R.S., and was sentenced “to serve not less than five nor more than seven years in the Arizona State Prison.” From the judgment and sentence he appeals. Complaint was filed against defendant in the justice court on the 4th day of December 1967. On return of the warrant of arrest the 5th day of December, bond was fixed by the justice of the peace at $2,000, which defendant was unable to make. He had to remain in jail from that date until the time of his sentencing. He was arraigned on the 12th day of January 1968, at which time he entered a plea of not guilty. It was on April 1, 1968, the date set for trial, that defendant withdrew his plea of not guilty and entered a plea of guilty as charged. On April 15, 1968 — the date of the sentencing — the court fixed the beginning of the sentence as of that date. On May 16, the defendant filed a motion for credit for the time he had served in jail prior to the date of the sentencing. The court denied, the motion upon the ground that it had already taken into consideration the time that defendant was incarcerated in the Maricopa County Jail in determining the sentence imposed. It is the contention of the defendant that the court’s denial of his motion for credit for the time served in jail prior to sentencing placed him in double jeopardy, in violation of the 5th Amendment to the Constitution of the United States; also that denial of the motion resulted in a heavier punishment on the defendant because he was unable to make bond, and for this reason his sentence was in violation of the equal-protection clause of the 14th Amendment to the Constitution of the United States. The defendant, in his brief, bases these contentions on U. S. Supreme Court decisions, including North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, holding that where a defendant is tried and convicted and the sentence is thereafter set aside upon retrial and conviction the court, in sentencing him, must give credit for the time he spent under the first sentence. The court held that a defendant may even be given as long or longer sentence, depending upon the particular combination of “infinite variables peculiar to each individual trial.” However, when the judge imposes the same or a longer sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. They must be based upon objective information concerning conduct on the part of the defendant occurring after the time of the original sentencing procedure, “* * * and the facts and data upon which the increased sentence is based must be made a part of the record so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” This Court has followed North Carolina v. Pearce, supra; State v. Johnson, 105 Ariz. 21, 458 P.2d 955. However, these cases pertain solely to time served under a prior conviction, and do not involve the question of credit for time served in jail prior to a conviction and sentence. A few states have statutes governing credit for time served in jail before sentencing, also the United States Code makes such a provision. Arizona does not have such a statute. The rule governing the question of credit for time served in jail previous to conviction and sentence is succinctly set forth in State ex rel. Waters v. Lackey, 97 Okl.Cr. 41, 257 P.2d 849: “* * * We are of the opinion that in the absence of statute authorizing the trial court to grant credit for jail time served, either before or after conviction and judgment and sentence, the same is not within the power of the trial court, to grant the same, as such. Of course the matter of fixing the penalty in the judgment, within the limits prescribed by statute, is within the sound judicial discretion of the trial court. In cases where the penalty is less than the maximum, it is not subject to inquiry as to whether the trial court considered jail time in mitigation of punishment. What determines the elemental foundations which motivated the trial court’s conclusion, as to a just penalty in the law, may be a matter between only the judge and his good conscience, and is not subject to inquiry by us in the absence of a clear abuse thereof. Lienee in many cases, jail time in mitigation may have been considered by the trial court. We do know however, that neither in common law nor in the statutes of Oklahoma is the granting of jail time as such, in a judgment as was done herein, authorized by law. The logic of our conclusion is strongly supported by the reasoning in People ex rel. Stokes v. Warden of State Prison, 66 N.Y. 342, 345, 346, as applicable herein: “ ‘Punishment for the commission of crime is that pain, penalty or forfeiture which the law exacts, and the criminal pays or suffers for the offense. In legal view, it cannot be said to have been exacted, nor to have been endured or begun to be endured, until the commission of the particular crime has been legally determined, and the particular criminal legally ascertained; nor until the due sentence, that is, the judicial fixing and utterance, of the definite kind, amount, or period of punishment has been authoritatively, and in due form of law and proceeding, pronounced upon him for his crime, after his conviction therefor. Punishment is a consequence of crime, to be sure, but in a legal view, it is the immediate consequences of only a conviction of crime. Hence, any pain or penalty which the offender has suffered before conviction and before sentence has been pronounced upon him is illegal, or is due to some demand of the law other than that based upon his conviction. In either case, it fails to enure to his benefit as part of that due punishment which the law exacts, by reason of his conviction and of the sentence passed upon him. ****** “ * * Moreover, important parts of the sentence are the place of imprisonment, to wit: in a State prison, and the manner of detention there, to wit; at hard labor. When the relator lay in the ■ county jail, he was not enduring these parts of the sentence; he was not in State prison; he was not at labor. How then can the time he lay in the county jail be reckoned a part of the time for which the law adjudged him to be at labor in the State prison? Doubtless a court when imposing sentence if imprisonment may consider in mitigation of the severity of it, the time for which the convict has been in custody while awaiting trial.’ ” While a court may take into consideration the time served in jail prior to sentence it is held to be not a matter of right but discretionary with the trial court. Salisbury v. Raines, Okl.Cr., 365 P.2d 568; Williams v. Page, Okl.Cr., 430 P.2d 345; In re Tidwell, Okl.Cr., 309 P.2d 302; In re Ward, 97 Okl.Cr. 60, 257 P.2d 1099; People v. Rose (Calif.), 41 Cal.App.2d 445, 106 P.2d 930. In State v. Howland, 103 Ariz. 250, 439 P.2d 821, we held: “In determining a proper sentence the court should consider the purpose of the sentence and the objectives sought to be attained. These objectives are usually enumerated as four-fold: retribution, deterrence, restraint, and rehabilitation.” Previous to the adoption of the indeterminate sentence, in practically all criminal cases, the statutes fixed a maximum and a minimum sentence between which the trial judge should fix the sentence of the offender. Orme v. Rogers, 32 Ariz. 502, 260 P. 199. However, with the passage of the indeterminate-sentence law the trial court was given a large discretion in the passing of sentence. We have held that the court should consider not only the circumstances of the offense but the moral character and the past conduct of the defendant. State v. Foggy, 101 Ariz. 459, 420 P.2d 934, cert. den., 386 U.S. 1025, 87 S.Ct. 1386, 18 L. Ed.2d 468, reh. den., 387 U.S. 938, 87 S.Ct. 2060, 18 L.Ed.2d 1008; State v. Horton, 101 Ariz. 229, 418 P.2d 385; State v. Tuggle, 101 Ariz. 216, 418 P.2d 372; State v. Bradley, 99 Ariz. 328, 409 P.2d 35; State v. Sowards, 99 Ariz. 22, 406 P.2d 202; State v. Wallace, 98 Ariz. 243, 403 P.2d 550; State v. Alford, 98 Ariz. 124, 402 P. 2d 551, rehearing den. 98 Ariz. 249, 403 P. 2d 806, cert. den., 382 U.S. 1020, 86 S.Ct. 625, 15 L.Ed.2d 535, reh. den. 384 U.S. 1028, 86 S.Ct. 1937, 16 L.Ed.2d 1047. A trial court must necessarily have a wide latitude in its determination of a proper sentence in order to meet the objectives for sentencing, particularly that of rehabilitation. It is mandatory that the court, under Rule 336, Rules Cr.Proc., 17 A.R.S., if upon suggestion of either party, must hear evidence as to circumstances summarily in open court — either at a special time or upon notice to the adverse party as the court directs, or the court may inquire into such circumstances of its own motion. Section 13-1652, A.R.S., provides that the term of the sentence fixed commences to run on the date of actual delivery of defendant at the place of imprisonment, or from the time fixed by the court at the time of the sentence. Rule 338, Rules Crim.Proc., A.R.S., provides that the sentence imposing imprisonment shall state the date at which the imprisonment is to begin. We have held that in the event no date is fixed, then the beginning of the sentence will be the date of delivery to the Arizona State Prison. While the determination of the sentence is within the discretion of the trial court, the amount of time that a defendant has served in jail prior to conviction should be taken into consideration by the court in the passing of sen tence. This can be done under the provisions of both the rules of the court and the statute permitting the court to fix the date of the beginning of the sentence, or by giving a shorter minimum and maximum sentence, providing that such would be permitted by the statute under which defendant is sentenced. The court might well feel that fixing a sentence at the minimum allowed by statute would be too long, considering the time served in jail before sentence. However, as set forth in State v. Lackey, supra, the consideration to be given is discretionary with the court along with the other factors. In State v. Rhodes, 104 Ariz. 451, 454 P.2d 993, this Court recognized that the trial court had a wide .discretion in the passing of sentence, and affirmed the decision of the trial court which fixed the sentence to run concurrently with a sentence being served in another state. In so holding, we said: “Both the rules of this Court, and the statutes give the court authority to fix the date of the beginning of the sentence at a date prior to delivery of the defendant to . the Arizona State Penitentiary. It is common knowledge that the courts frequently give a defendant credit for time that he may have been incarcerated in jail prior to sentencing. While this provision is not mandatory, justice requires that the court have this discretion. Otherwise, after a plea of guilty or a verdict of guilty by a jury, a defendant would not be entitled to credit for the time required for an investigation by the probation officers prior to sentencing. “Under Rule 339, Rules Crim.Proc., 17 A.R.S., there can be no question but what this rule was intended to permit the court imposing a second or later sentence to have authority to make the sentence run concurrently with a former sentence imposed by another court. See Odekirk v. Ryan, 6th Cir., 85 F.2d 313.” In the instant case the trial court, at the hearing on the motion, said: “* * * the Court having taken into consideration the time that the defendant was incarcerated in the Maricopa County Jail in determining the sentence imposed herein, * * * ” There is a presumption that the trial court took into consideration all factors, including the time served in the county jail prior to the date of sentencing. There are many factors — together with the time served in jail before sentencing — in determining a sentence such as the age of the defendant, background, health, past conduct; also the objectives of “retribution, deterrence, restraint, and rehabilitation,” all of which would make it difficult for a court to set forth in detail the consideration given to each. The court may find it desirable at the time of sentencing to state that consideration was being given to the time spent in jail previous to sentence, in order that a defendant might understand that his poverty had not deprived him of justice. This would be a good practice for the court to follow; however, it is not required under the rules of procedure. But, in the instant case, we have the statement of the court that it had taken into consideration the time that defendant was incarcerated in the Maricopa County Jail in determining the sentence. The sentence that was imposed would also so indicate. Judgment affirmed. LOCKWOOD, C. J., and STRUCKMEYER, V. C. J., and UDALL and HAYS, JJ., concur.

HAYS, Justice. Petitioner, Presiding Judge of the Superior Court of Pima County, comes to this Court by Petition for Special Writ requesting this Court to order respondent Board to formally approve the appointment of Lois Jane Tinuzzo as a deputy clerk of the Superior Court of Pima County. The undisputed facts are as follows: On May 15, 1970 the Clerk of the Superior Court of Pima County appointed Lois Jane Tinuzzo as a deputy clerk effective May 18, 1970. This appointment was approved by petitioner. The Clerk then requested that respondents consent to the appointment and place the new employee on the payroll. This employee commenced her employment on May 18, 1970 but received no compensation for services rendered. Petitioner, on June 2, 1970, entered an order commanding respondents to approve the hiring of Lois Jane Tinuzzo as of May 21, 1970. Respondent, however, failed to put this order into effect. The issue before this Court is concerned with the scope of the Board of Supervisors’ authority in approving or disapproving appointments made by the Clerk of the Superior Court. The issue of the Board of Supervisors’ authority respecting the office of Clerk of the Superior Court turns on whether or not the Clerk’s office is subject to the control of the judicial branch of government. Section 11-401, 3 A.R.S., lists the Clerk as an officer of the county. This Court, however, in United States Fidelity & Guaranty Co. v. State, 65 Ariz. 212, 177 P.2d 823 (1947) held: “The clerk’s duties are not purely ministerial, but are rather an integral part of the whole judicial process. The clerk of the court from time immemorial has been considered an officer of the court and as such endowed with certain judicial authority to aid and promote the judicial process.” 65 Ariz. at page 215, 177 P.2d at page 824. Thus, there is a conflict with the literal language of § 11-401 and the decision of this Court. To resolve this conflict it is necessary to look to the Constitution of the State of Arizona. The Arizona Constitution A.R.S., provides in Article III for the distribution of powers among the three branches of government: “The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers proper])' belonging to either of the others.” The Constitution then provides for the Clerk of the Superior Court in Article VI, § 23, as amended: “There shall be in each county a clerk of the superior court. The clerk shall be elected by the qualified electors of his county. * * * The clerk shall have such powers and perform such duties as may be provided by law or by rule of the Supreme Court or superior court. He shall receive such compensation as may be provided by law.” It is the opinion of this Court that in light of the fact that the office of Clerk of the Superior Court is created in Article VI which is concerned with the Judicial Department that the office of Clerk of the Superior Court is a part of the judicial branch of government. In Mann v. County of Maricopa, 104 Ariz. 561, 456 P.2d 931 (1969) we recognized that: “* * * ‘(1) It is the legislative intention, as expressed in the statute, which the court must ascertain and declare; and (2) it must be assumed that the legislature acted with full knozoledge of relevant constitutional provisions, inherent judicial powers existing, and of previous legislation and decisional lazo on the subject; that it did not intend to create a situation amounting to a departure from the general concept of democratic government; and that it ought to recognize and confirm inherent powers rather than to destroy them.’ ” . (Emphasis added). 104 Ariz. at page 564, 456 P.2d at page 954. We assume, therefore, that the legislature in enacting §§ 11-401 and 11-409 did so with full knowledge of relevant constitutional provisions and the inherent powers of the Court. We believe that it was not the intent of the legislature in enumerating the office of Clerk of the Superior Court as a county office in § 11-401 to remove that office from the supervisory control of the judiciary. If the judiciary has the power under Article VI, § 23 to provide for the powers and duties of the Clerk of the Superior Court it necessarily follows that the judiciary has the power to supervise the operation of that office. Having decided that the Clerk of the Superior Court is subject to the supervision of the judiciary it is now' necessary to determine the authority of the Board of Supervisors to approve or disapprove appointments made by the Clerk under § 11-409. In Mann v. County of Maricopa, supra, we held: “1. The department of government which has the power of control of personnel directly connected with the operation of the Courts is the Judicial Department. ****** 3. The Board of Supervisors had the ministerial duty of approving the request, unless there is a clear showing that the judges acted unreasonably, arbitrarily, and capriciously in making the request.” 104 Ariz. at page 566, 456 P.2d at page 936. It is the holding of this Court that the Board of Supervisors has the ministerial duty under § 11-409 to consent to the appointment of employees by the Clerk unless the Board can clearly show that the Clerk acted “unreasonably, arbitrarily, and capriciously” in making the appointment. There being no such showing here, and the Court having approved the appointment, the Board of Supervisors is ordered to approve the personnel request effective as of May 21, 1970. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and McFARLAND, JJ., concur.

STRUCKMEYER, Vice Chief Justice. This matter invoked the original jurisdiction of this Court, Article 6, Section 5, Constitution of Arizona, A.R.S., by Rose Silver, County Attorney of Pima County, Arizona, for a special writ to prohibit Joe Jacobson, Justice of the Peace of Precinct No. 4 of Pima County, Arizona, from proceeding on a motion to suppress a quantity of marijuana. We accepted jurisdiction, ordering that the alternative writ of prohibition issue. One Dennis Keith Schmidkunz was charged by criminal complaint in Justice of Peace Precinct No. 4 with a violation of A.R.S. § 36-1002.05, Unlawful Possession of Marijuana. The unlawful possession of marijuana is punishable by imprisonment in the State Prison for not less than one nor more than ten years; but for a first offense the court may impose a fine not exceeding $1,000.00 or imprisonment in the County Jail not exceeding one year, or both. The offense therefore can be a crime amounting to a felony, depend-ing upon its final disposition, and is within the exclusive original jurisdiction of the Superior Court, Arizona. Constitution, Article 6, Section 14. The criminal complaint was set for preliminary hearing before respondent justice of the peace. Prior to the preliminary hearing Schmidkunz moved respondent to suppress a certain quantity of marijuana on the grounds that it was obtained as a result of an unlawful search and seizure. The State, through the County Attorney of Pima County, objected to the justice court’s jurisdiction to hear and determine defendant’s motion to suppress. Respondent then entered this ambiguous order: “that the justice court has the jurisdiction to rule at a preliminary hearing with respect to unlawful search and seizure or any other constitutional question that may arise during the preliminary hearing.” If respondent meant by this order that he had the power to grant a motion to suppress evidence, he was in error. The Superior Court has exclusive jurisdiction of criminal cases amounting to felonies. But if respondent meant that he had the jurisdiction to rule at the preliminary hearing on an objection to the admission of evidence that the marijuana was the product of an unlawful search and seizure, he is correct. While a presiding magistrate conducting a preliminary hearing has only the limited jurisdiction to determine a question of probable cause, that determination still must be bottomed upon competent evidence of criminal activity to the same extent as any other judicial proceeding: “[t]he proof which will authorize a magistrate in holding an accused person for trial must consist of legal, competent evidence. No other type of evidence may be considered by the magistrate. The rules of evidence require the ‘production of legal evidence’ and the exclusion of ‘whatever is not legal.’ ” People v. Schuber, 71 Cal.App.2d 773, 775, 163 P.2d 498, 499. See also Rogers v. Superior Court of Alameda County, 46 Cal.2d 3, 291 P.2d 929. For the reason that it does not unambiguously appear that respondent proposes to grant Schmidkunz’s motion to suppress, see Lerner v. Superior Court, 94 Ariz. 59, 381 P.2d 594, the alternative writ of prohibition is ordered quashed. LOCKWOOD, C. J., and UDALL, McFARLAND and HAYS, TJ., concur.

HAYS, Justice. This is a suit to establish an unrecorded deed which has been lost or destroyed. At the close of the plaintiffs’ case, the trial judge directed a verdict for the defendants from which this appeal is taken. After her husband’s death, in 1937, Edie Frances Stewart became the sole owner of and had record title to 80 acres of farmland situated near Tolleson, Arizona. On or about May 9, 1965, Edie Frances Stewart died testate, devising §4 of this land to her daughters, defendants herein, and 1/6 to the plaintiffs who were the children of her son, Wesley Gilbert Stewart, deceased. The plaintiffs have sought to prove that, in 1940, Edie Frances Stewart executed and delivered to her son, Wesley, a deed conveying the South 40 acres of the subject land. The alleged consideration consisted of Wesley agreeing to discharge the mortgage of $7000.00 on the entire 80 acres, to provide his mother with a home and otherwise support her for the remainder of her life. Wesley died intestate on or about June 1, 1951, and his children claim ownership of the South 40 acres by virtue of the alleged deed and the laws of descent and distribution. This suit was brought against Gertrude Scarlett Wiley, individually and as the executrix of the estate of Edie F. Lance. Edie F. Lance was the former Edie Frances Stewart and she will hereinafter be referred to as Edie Frances Stewart, her married name during the time of the facts in dispute. The other defendants are the sisters of Gertrude Scarlett Wiley and all of the defendants are the daughters of Edie Frances Stewart. Ruth Arrowsmith, the mother of the plaintiffs, was made a counter-defendant by the defendants who counterclaimed against her and the plaintiffs to quiet title to the land which is the subject of this action. Throughout the trial, testimonial evidence offered by the plaintiffs was objected to on the grounds of hearsay and incompetency of the witnesses to testify to certain matters because of the proscription of A.R.S. § 12-2251 which is known as the Dead Man’s Statute. The trial judge sustained many of these objections and the plaintiffs responded with numerous offers of proof. Ruth Arrowsmith testified that her husband, Wesley Gilbert Stewart, in the presence of his mother, Edie Frances Stewart, showed her an instrument which she recognized as a Quitclaim Deed, the lower part of which was impressed with a seal. However, she further testified that she failed to read any of the writing on the instrument. After objections were made and sustained on the grounds of hearsay and A.R.S. § 12-2251, she stated on an offer of proof that Wesley, in the presence of his mother, told her that his mother had given him a deed to 40 acres because his mother was getting married and “that this way he would be sure of having what was rightfully his.” Hearsay and A.R.S. § 12-2251 objections were also made and sustained when the plaintiffs attempted to read portions of the depositions of the defendants, Evelyn Reed and Abbie Winifred Cobb. By offer of proof, defendant Reed testified that she had heard of the deed, that her mother held the deed, that she understood the agreement to be that her mother would give Wesley the deed to 40 acres if he would work the land and pay off the mortgage and that Wesley told her that he instructed his mother to destroy the deed. By offer of proof, defendant Cobb testified that her mother once told her that she would give Wesley a deed to 40 acres “if he took care of things and paid off the mortgage on the ranch,” that her mother told her that she had the deed in her possession and that Wesley instructed her mother to destroy the deed because he did not want the land. Defendant Wiley testified that she never heard of the deed in question prior to the institution of this suit. All but one of the plaintiffs took the stand and from their testimony it is readily apparent that their only knowledge of the deed came from conversations with their mother, Ruth Arrowsmith. Jerry David Stewart did testify that, in 1950, his father, Wesley, told him that he would see that his sons got his half of the ranch. This concluded the plaintiffs’ case. On appeal, it is principally argued that A.R.S. § 12-2251 was not intended to bar the excluded testimony of Ruth Arrow-smith and defendants Cobb and Reed in the circumstances of this case. However, we find it unnecessary to reach this contention because we have concluded that the plaintiffs have failed to meet the burden of proof necessary to establish their title through a missing deed. We further observe from the record that the objections to certain testimony on the grounds of hearsay were meritorious and that the plaintiffs’ counsel failed to properly inform the trial judge whether the testimony should have been admitted by virtue of an exception to the hearsay rule. However, we believe that the plaintiffs failed to meet their burden of proof even if we consider the testimony in the offers of proof in addition to the testimony which was admitted into evidence. To survive a motion for a directed verdict, the plaintiffs had the burden of proving the terms, execution, delivery and loss of the deed by clear and convincing evidence. Spillsbury v. School District No. 19, 37 Ariz. 43, 288 P. 1027 (1930). We are of the opinion that the plaintiffs’ case was much too weak to meet this test. All of the plaintiffs’ evidence was testimonial. The only person who claimed to have actually seen the deed was Ruth Arrowsmith. Her knowledge was strictly limited to what she recognized as a Quitclaim Deed with a seal affixed. She did not read the instrument and thus was unable to offer any testimony bearing on the property description or execution thereof. The balance of the evidence consisted of testimony of persons whose knowledge of the existence of the alleged deed consisted only of what others had told them. Defendants Cobb and Reed testified that their mother told them that she burned the deed on instructions from her son, Wesley. This contradicts the testimony of Ruth Arrowsmith that the deed was actually delivered to Wesley. The plaintiffs alleged that Wesley agreed, inter alia, to pay off the mortgage of $7000.00 as a consideration for the alleged deed but plaintiffs failed to offer any evidence whatsoever that this consideration, or any portion thereof, was ever paid. We have viewed the evidence in a light most favorable to the plaintiffs but hold that it is insufficient to establish a title through a missing deed. Judgment of the trial court is affirmed. STRUCKMEYER, V. C. J., and McFARLAND, J., concur.

HAYS, Justice. The appellant, Edward Harold Schad, Jr. (hereinafter defendant), was convicted by a Yavapai County jury of first degree murder and was sentenced to death. Defendant now appeals both the conviction and the sentence. We have jurisdiction pursuant to A.R.S. § 13 — 4031. Judgment of conviction and sentence affirmed. The facts of this case are rather complicated. Accordingly, general facts surrounding the crime will be provided here and other facts which are necessary for resolution of the issues raised by defendant will be developed within the opinion. On August 9, 1978, a badly decomposed body of an elderly male was found approximately nine miles south of Prescott, Arizona, adjacent to a roadway pull-off on U.S. Highway 89. The body was discovered after a highway department worker had detected the odor of decaying human flesh the previous day while driving past the pull-off. Although the worker and his coworker had stopped briefly to investigate the odor on August 8, the body was not actually discovered until the next day due to the fact that it was well concealed in the brush. After the corpse was discovered, the Yavapai County Sheriff’s Department and the County Medical Examiner observed a small rope tied around the victim’s neck. It was later established that the cause of death was strangulation. Because of the advanced state of decomposition, the body was not identified until October 11, 1978, when it was established that the deceased was Lorimer “Leroy” Grove, a 74-year-old Bisbee resident. Grove had last been seen on August 1, 1978, in Bisbee, Arizona. On that morning, Grove left Bisbee driving a new Cadillac, pulling a camper-trailer. His ultimate destination was Everett, Washington, where he had intended to visit his sister. On August 3, 1978, a dark green Ford Fairmont was found abandoned 30 miles north of Flagstaff, Arizona, alongside U.S. Highway 89 by a Department of Public Safety Highway Patrolman. It was subsequently determined that the Fairmont had been rented by the defendant from a Ford dealership in Sandy, Utah, on December 31, 1977. Although the vehicle had been rented for the weekend, it was never returned and had been reported as stolen. The vehicle was turned over to the Coconio County Sheriff’s Department and was impounded at a local towing yard. On September 12, 1978, two officers examined the vehicle in connection with an investigation of possible homicide charges against defendant. Several items belonging to the victim were found in the Fairmont, including a mirror device which was identified as being similar to one used by the deceased to hook the trailer to the automobile by himself. On September 3, 1978, defendant was stopped by a New York Highway Trooper, for speeding, while driving the victim’s Cadillac. When the defendant could not produce a registration on the vehicle, the officer asked for an explanation. Defendant replied that it wasn’t his car but that he was delivering it for a friend to an area five or ten miles from where the officer stopped him. Asked who was the friend was, defendant said he was an elderly gentleman by the name of Larry Grove. Defendant was arrested in Salt Lake City, Utah, on September 8,1978, for parole violation. Defendant had been on parole from the Utah State Penitentiary where he had been serving a sentence for second degree murder conviction. After defendant was arrested and taken into custody, the Cadillac was taken to the Salt Lake City Police Department impound lot where it was searched. Various personal items were found in the car which were identified as belonging to the victim. Defendant raises the following arguments for our consideration: 1. The warrantless search of the Cadillac and defendant’s wallet violated defendant’s fourth amendment rights; 2. An informant’s testimony regarding statements made by defendant while in jail violated defendant’s sixth amendment rights; 3. Statements made to various police officers were involuntary; 4. The trial court improperly restricted voir dire questioning of the jury; 5. The jury should have been sequestered; 6. Defendant was denied his right of confrontation under the sixth amendment when the trial court admitted into evidence portions of the suppression hearing transcript concerning written and oral statements of the defendant; 7. Defendant’s prior prison record should have been admitted; 8. The State deprived defendant of a fair trial by failing to make a good-faith effort to obtain fingerprints of the “French people”; 9. The trial court abused its discretion in admitting a photograph of the deceased; 10. The evidence was insufficient to support the conviction; 11. The trial court improperly instructed the jury; 12. The death penalty was not properly imposed; 13. A.R.S. § 13-454 is unconstitutional in this case. SEARCH OF CADILLAC AND WALLET Defendant’s first point deals with the trial court’s refusal to suppress evidence seized from the warrantless searches of defendant’s wallet and the Cadillac. We turn first to the evidence obtained from defendant’s wallet. At the time of arrest, defendant was immediately taken into custody and transported to jail. Wilma Horrocks, who was present at the scene of arrest and had been cohabiting with defendant during the preceding year, was asked by defendant to pick up his personal belongings from the jail. Among these items was defendant’s wallet which contained two VISA credit cards belong to the murder victim. At the jail, the police inexplicably released the wallet to Horrocks without examining the contents. On the following day, after being informed that the wallet contained stolen credit cards, Detective John Johnson of the Salt Lake City Police Department went to Horrocks’ residence in order to try to obtain the credit cards. Once there, Johnson asked Horrocks if she had two stolen credit cards; she answered that she did, retrieved the' wallet and gave the cards to Johnson. No warrant was obtained to seize the cards. Defendant maintains that because the wallet was released to his girlfriend at her request and upon his instructions, defendant had a legitimate expectation of privacy in its contents. Therefore, defendant argues he has standing to object to the “unlawful” search of his wallet without a warrant even though it was in the custody of his girlfriend. It is undisputed that searches and seizures that may be made at the time of arrest may be legally conducted later when the accused arrives at the place of detention. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). Thus, at the time defendant was taken into custody, the police would have been acting well within their permissible authority under the fourth and fourteenth amendments had they conducted a search of the wallet at the jail. Admittedly, in this case the police neglected to do this and instead turned the wallet and its contends over to Horrocks. We need not decide whether this gave rise to a legitimate expectation of privacy in the contents of the wallet, however, since Horrocks consented to the search and voluntarily turned over the credit cards to Detective Johnson. It is well settled that a warrant-less search of property is valid if conducted pursuant to a voluntary consent. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Tucker, 118 Ariz. 76, 78, 574 P.2d 1295, 1297 (1978), cert. denied, 439 U.S. 846, 99 S.Ct. 144, 58 L.Ed.2d 147 (1978). “A consent to search may be evidenced by conduct as well as by words. However, the constitutional protection against unreasonable searches demands a waiver by unequivocal words or conduct expressing consent.” State v. Tucker, supra, 118 Ariz. at 78-79, 574 P.2d at 1297-98. These same principles apply where the consent is given by one who possesses common authority over the premises or effects. In such a situation, the consent is valid as against the absent, nonconsenting person with whom that authority is shared. United States v. Matlock, supra, 415 U.S. at 171, 94 S.Ct. at 993. In the present case it is clear that Horrocks had the authority to consent to the search of the wallet and seizure of the credit cards. The wallet was released to her at defendant’s request. By allowing her to take possession and control of the wallet, defendant “assumed the risk” that she would allow someone else to have the contents, here the stolen credit cards. United States v. Matlock, supra; United States v. Miroff, 606 F.2d 777, 779 (7th Cir. 1979). We also find the consent to the search to have been voluntarily given. There were no overt acts or threats of force by Detective Johnson nor were there any indications of more subtle forms of coercion. Detective Johnson testified that he had no intention to search for the cards, and, if Horrocks had refused to give them to him, he would have left the premises. Horrocks’ testimony does not dispute this. The conclusion that her consent was voluntary is also bolstered by the fact that she brought the wallet to the police station a week later and turned it over to Detective Johnson. Defendant also argues that since he had been driving the Cadillac for the previous six weeks, he had standing to assert a legitimate expectation of privacy regarding the seized contents of the Cadillac. In support of this contention, defendant relies heavily on Cotton v. United States, 371 F.2d 385 (9th Cir. 1967), which held that a thief who had possession of a stolen automobile and claimed it as his own had standing to object to a search of the car. We do not find Cotton to be persuasive in light of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), where the Supreme Court held that the defendants did not have standing to challenge a search of the automobile in which they were riding as passengers. In so holding, the Court noted that a “legitimate” expectation of privacy by definition means more than a subjective expectation of not being discovered. 439 U.S. at 143 n.12, 99 S.Ct. at 430-31. We find especially significant the fact that the Court in Rakas expressed its disapproval of the result in Cotton. After emphasizing that the Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), was careful to note that “wrongful” presence at the scene of a search would not enable a defendant to object to the legality of the search, the Court went on to observe that “[d]espite this clear statement in Jones, several lower courts inexplicably have held that a person present in a stolen automobile at the time of a search may object to the lawfulness of the search of the automobile. See, e. g., Cotton v. United States (citation omitted) ...” 439 U.S. at 141 n.9, 99 S.Ct. at 429. Similarly, this court has refused to recognize as “reasonable” any expectation of privacy a thief may have in an automobile which he has stolen. State v. Myers, 117 Ariz. 79, 570 P.2d 1252 (1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978). Defendant attempts to distinguish Myers by pointing to the fact that the stolen automobile in that case had been abandoned. Further, defendant asserts that because there were numerous items of his own property located in the Cadillac he had an expectation of privacy in the automobile. We do not view Myers so narrowly. We cannot see how lack of abandonment of a stolen vehicle, coupled with the fact that the thief may have some of his own property in the automobile, can elevate defendant’s standing to object to a warrantless search. The capacity to claim the protection of the fourth amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded place. Rakas v. Illinois, supra, 439 U.S. at 143, 99 S.Ct. at 430; Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967). Clearly, defendant’s expectation is not one that society is prepared to recognize as reasonable, nor are we. See also Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (defendant not entitled to challenge search of woman’s purse merely because he claimed ownership of drugs in the purse). The items taken from the Cadillac were properly admitted into evidence. INFORMANT’S TESTIMONY IN RE STATEMENTS MADE BY DEFENDANT WHILE IN JAIL The Salt Lake City Police learned of defendant’s presence in Salt Lake City from information supplied by John Duncan. Duncan had been arrested by Detective Halterman of the Salt Lake City Police Department on a California fugitive warrant but had fought extradition and was eventually released by the Utah authorities. Afterwards, Duncan and his wife were living with Wilma Horrocks when defendant arrived in town driving the victim’s Cadillac. Defendant told Duncan that he was a parole violator and wanted to know the fastest way out of town after his visit with Horrocks. Duncan then informed Detective Halterman of defendant’s presence. Halterman checked Duncan’s information and discovered that defendant was indeed a parole violator. Duncan told Halterman where defendant had parked the Cadillac, and Halterman arranged for defendant’s arrest the next morning. After defendant was arrested as he was attempting to leave town, Duncan contacted Halterman several more times. On these occasions, Duncan told Halterman about the stolen credit cards in defendant’s wallet and about some credit card receipts Duncan had recovered. He later turned these receipts over to Halterman. These contacts were all initiated by Duncan. The police did not direct Duncan’s activities nor did they pay Duncan for the information. Several days later, Duncan volunteered to visit defendant in jail and offered to report the conversation to the police. After this was considered by the police and prosecutorial officials, however, the idea was rejected. Detective Halterman summarized this decision at the suppression hearing; “Q. Was there ever any discussion with [Duncan] as to his talking to Ed Schad and relaying any information that he might learn from him to you or any other officer? “A. There was — that point was brought up at one time I believe, by Mr. Duncan and I with my captain and also the County Attorney concerning that and determined that that would not be a good idea, and that was discussed and that information was relayed to Mr. Duncan. “Q. What was Mr. Duncan’s reaction, if any? “A. That he still was an acquaintance of Mr. Schad and that he would — if he wanted to visit him he could visit him, I mean, we didn’t have the right to tell him he couldn’t but that was about it. “Q. Then do you know whether he did visit him or not? “A. I believe he did. “Q. Did Mr. Duncan ever talk to you or tell you what came about from such a visit, if anything? “A. It seems like he told me that he talked to him and told Mr. Schad that the Police Department had the credit cards at that time, and I believe he asked Mr. Schad where the trailer was and Mr. Schad would not tell him. “Q. That is all the information that you learned from Mr. Duncan in regard to that visit? “A. Yes.” Although Duncan wanted “some help from the police” with regard to his California parole violation, this help did not amount to more than a promise from Detective Halterman that he would write a letter to Duncan’s judge in California relating Duncan’s assistance in the investigation. At the time of trial, Duncan was still serving a sentence in Chino State Prison, California. Based upon the foregoing, defendant contends that Duncan was acting as an agent for the State and was soliciting information by trickery, in violation of defendant’s sixth amendment right to counsel. In advancing this position, defendant argues that State v. Smith, 107 Ariz. 100, 482 P.2d 863 (1971), controls the facts of the present case. We cannot agree. In State v. Smith, supra, this court was presented with facts which indicated an agency relationship existed between an informant and the Maricopa County Attorney’s Office. The court summarized the facts leading to this conclusion as follows: “Mahan was a known informer used by the County Attorney on a previous occasion, with the express understanding that in exchange for testimony, parole for Mahan would be obtained; out of 350-400 inmates in the Maricopa County Jail, the defendant was placed next to this known informer; the County Attorney’s office had the power to control the placement of inmates; following the performance by Mahan of all the services required of him in connection with his prior activities, he was allowed to remain in the Maricopa County Jail for six months; the notes delivered to the County Attorney’s office were specifically marked in such a manner as would require Mahan’s testimony at defendant’s trial; and notes were made by [the County Attorney] of defendant’s oral conversations with Mahan, again indicating the necessity of Mahan’s appearance at trial.” 107 Ariz. at 103, 482 P.2d at 866. Additionally, after obtaining the evidence from Mahan concerning the defendant, Mahan’s robbery conviction was reduced to grand theft and he was resentenced to time served and released. “In other words Mahan received his quid pro quo.” Id. at 104, 482 P.2d at 867. Under these circumstances, this court held that the notes obtained by the informant from the defendant were inadmissible under the doctrine of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Turning to the facts of the present case, we hold that there was no agency relationship between Duncan and the Utah authorities. There was obviously no “quid pro quo” for Duncan’s assistance. Duncan initiated the contacts with the police and did so without any tangible promise of pecuniary gain or prospect of release from prison. Additionally, there were no concerted actions on the part of the police aimed at priming Duncan as a witness against defendant at trial, as evidence by the unwillingness of the authorities to deliberately elicit incriminating statements from defendant during the suggested jail visit. As we pointed out in Smith, “it should be emphasized that law enforcement officials have the right, and indeed the obligation in the prosecution of crimes to use all information that comes into their hands pointing to the guilt of the accused. This is true even though the persons supplying that information may harbor expressed or unexpressed motives of expectation of lenient treatment in exchange for such information. It is only when the state actively enters into the picture to obtain the desired information in contravention of constitutionally protected rights that the sanction of inadmissibility becomes pertinent.” 107 Ariz. at 103, 482 P.2d at 866. Regardless of Duncan’s motivations in aiding the police, we cannot say that the police “actively entered into the picture” so as to give rise to an agency relationship. When viewed along with the fact that the information gained through the jail conversation was insignificant, it is apparent that the trial court did not err in denying defendant’s motion to suppress the statements. VOLUNTARINESS OF STATEMENTS MADE TO POLICE OFFICERS Defendant next argues that the trial court erred in admitting certain statements made to Salt Lake City, Utah, and Yavapai County law enforcement officers. Defendant does not contend that these statements were obtained in violation of his Miranda rights but asserts the statements were involuntary under A.R.S. § 13-3988(B)(1) and (2). Relying on the statute, defendant claims his statements were involuntary because 1) they were made during an unreasonable length of time between his arrest for parole violation on September 8, 1978, and the arraignment on the murder charge on March 21, 1979, and 2) that because he was arrested on the parole violation charge, he did not know the nature of the offense for which he was charged nor of which he was suspected at the time of making the statements. We have repeatedly stated that confessions are prima facie involuntary and the burden is on the State to show that they were freely and voluntarily made, and that they were not the product of physical or psychological coercion. State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023 (1980); State v. Hall, 120 Ariz. 454, 586 P.2d 1266 (1978); State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978). Although the statements at issue do not rise to the level of a confession, they served to destroy the defendant’s credibility as a witness on his own behalf; therefore, if the statements were involuntary, their use against the defendant at trial would be a denial of due process. See Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978). Accordingly, the State must shoulder the same burden in showing that these statements were not the product of physical or psychological coercion. As to defendant’s first contention that his statements were involuntary because of the delay between the time of arrest and his first appearance before a magistrate, we have observed that “such a delay is but a factor to be considered and does not ipso facto render such statements involuntary.” State v. Arnett, supra, 119 Ariz. at 44, 579 P.2d at 548. Here, defendant does not claim he was subjected to any such practices, but merely points to the time span and the fact that he was not transferred from the Salt Lake County Jail to the Utah State Penitentiary as would be the normal practice for a prisoner facing a parole revocation hearing. We do not see how this different procedure made defendant’s statements involuntary and must uphold the trial court’s determination on this point. We also find defendant’s second contention that he did not know the nature of the offense for which he was charged or suspected to be wholly unsupported by the record. On September 12, 1978, Officer Jones asked defendant a number of questions concerning the Cadillac and specifically asked defendant if he knew Larry Grove. On September 19, 1978, Jones told defendant that he thought defendant was involved in the death of Grove. This line of inquiry obviously put defendant on notice that he was a murder suspect, especially in light of the fact that defendant, a habitual criminal, was no stranger to the criminal justice system. The trial court was correct in denying defendant’s motion to suppress the statements. REFUSAL TO USE DEFENDANT’S REQUESTED VOIR DIRE QUESTIONS Defendant contends that the trial court erred in refusing to ask certain questions submitted by defendant during the voir dire examination. The submitted questions concerned: 1) whether any prospective juror had any conscientious or religious opinions concerning the death penalty; 2) whether the prospective jurors or family members had any knowledge of correctional institutions or parole; 3) whether the prospective juror would have convicted defendant because of his involvement in other crimes; 4) whether the prospective jurors or any family members were personal friends or acquaintances of any other persons serving on the jury panel; and 5) whether the prospective jurors had any disagreement with the law of murder or the law of the alibi defense. In discussing procedures for selecting a jury in a criminal trial pursuant to 17 A.R.S. Rules of Criminal Procedure, rule 18.5, we have emphasized that the rule “places the responsibility for conducting voir dire examination of the prospective jurors on the court . . . The purpose behind the provisions of Rule 18.5 is to give the trial court authority to limit the scope of examination to those questions reasonably designed to expose possible prejudice on the part of the jurors.” State v. Melendez, 121 Ariz. 1, 3, 588 P.2d 294, 296 (1978). “While it is the court’s duty to question potential jurors, the extent of voir dire examination to determine the presence or absence of prejudice is left to the sound discretion of the trial court.” State v. Smith, 114 Ariz. 415, 418, 561 P.2d 739, 742 (1977). We have reviewed the voir dire examination conducted by the trial court and find that the court adequately questioned the prospective jurors so as to have enabled the parties to exercise intelligently their peremptory challenges and challenges for cause. The trial court propounded questions which more than adequately dealt with the area of concern touched upon by defendant’s capital punishment question. This is evidence by the fact that one prospective juror indicated that he had “a strong objection to capital punishment.” After listening to the ensuing discussion which occurred between the court and the prospective juror, no other prospective jurors indicated they had any opinions which would prevent them from reaching a just verdict. Similarly, defendant’s second proposed question was properly refused. Defendant claims this question was necessary because defendant had a right to know if any prospective juror was an “expert” on the subject of prisons, correctional institutions and parole. The trial court refused this question in light of the fact that information relating to present or past occupations was elicited from the prospective jury members. Defendant’s third proposed question constitutes an attempt to “condition” the jurors by forewarning them of unfavorable facts concerning defendant. We have disapproved of this practice in Melendez, supra, and find no error in the trial court’s refusal to give this question. Finally, defendant argues that the fourth and fifth proposed questions were necessary in order to allow him to intelligently exercise his peremptory challenges. In both instances, defendant assumes this information would inform him whether a prospective juror would be more likely than other jurors to violate the court’s admonitions and instructions. With respect to the fourth question, we find such an inference to be tenuous, at best. Furthermore, there is no presumption that jurors will disobey instructions given them by the court. State v. Trujillo, 120-Ariz. 527, 587 P.2d 246 (1978). It was not error to refuse to ask the requested questions. JURY SEQUESTRATION Defendant argues that the trial court erred when it denied his motion to sequester the jury. Specifically, defendant points to the fact that there were various newspaper articles published concerning the case which mentioned defendant’s prior conviction for second degree murder. While conducting the voir dire, the trial court carefully inquired whether any prospective juror had been exposed to any media coverage concerning the case. This inquiry led to the disqualification of one prospective juror. Immediately after the jury was selected and during the course of the trial, the court repeatedly admonished the jurors not to read or listen to any accounts that may appear in the media. The decision to sequester the jury is within the discretion of the trial court and as such will not be disturbed on appeal absent a clear showing of abuse of discretion and resulting prejudice to defendant. State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981). In claiming that the trial court erred in refusing to sequester the jury, the burden of proving that publicity actually prejudiced the jury is on the defendant. See State v. Lippard, 26 Ariz. App. 417, 549 P.2d 197 (1976). This the defendant has not done. Accordingly, we will not disturb the trial court’s discretion in this matter on appeal. State v. Greenawalt, supra, 128 Ariz. at 162, 624 P.2d at 840. RIGHT OF CONFRONTATION AND CROSS-EXAMINATION Defendant next claims he was denied his sixth amendment right to confront witnesses against him and was denied sufficient opportunity to cross-examine when the trial court admitted into evidence portions of a suppression hearing transcript of Kent Jones, a Utah probation officer, concerning the voluntariness of statements made to Jones. Defendant attacks the admissibility of the suppression hearing transcript under 17A A.R.S. Rules of Evidence, rule 804(bXl), by asserting that there was not a similar motive to develop Jones’ suppression hearing testimony, where voluntariness was at issue, as was present at trial, where guilt was at issue. Defendant maintains he desired to elicit testimony to the effect that defendant was regarded as a “snitch” at the Utah State Penitentiary. According to defendant, this testimony would have directly related to the issue of guilt since it reflected favorably upon the credibility of the defendant. Defendant also argues that this questioning would not have been relevant to determine whether defendant’s statements to Jones were made voluntarily at the suppression hearing. We believe, however, that this line of questioning was relevant to the voluntariness hearing and was germane to the issue of whether statements to Jones were made freely in the first place. We note further that defendant did not even attempt to go into this area on cross-examination, nor did he attempt to subpoena Jones in his own defense. It is well within the trial court’s discretion to decide if defense counsel had sufficient opportunity to cross-examine the witness at the prior proceeding. State v. Ray, 123 Ariz. 171, 598 P.2d 990 (1979). Absent an abuse of discretion, this judgment will not be disturbed on appeal. Because we are of the opinion that defendant had the opportunity and similar motive to develop Jones’ testimony at the suppression hearing as he would have had at trial, we find the transcript testimony to have been properly admitted under the hearsay exception of rule 804(bXl). In raising the sixth amendment claim, defendant argues that the testimony should not have been admitted because he did not have a full and meaningful opportunity to cross-examine Jones on the issue of guilt. The Sixth Amendment’s Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This sixth amendment right is a fundamental right made applicable to the states by the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). A critical inquiry which arises under the sixth amendment is whether the administration of hearsay testimony by way of exception violates the command of the Confrontation Clause. Because the Confrontation Clause reflects a preference for face-to-face confrontation at trial and a primary interest secured by the clause is the right of cross-examination, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076,13 L.Ed.2d 934 (1965), the clause operates to restrict the range of admissible hearsay in two ways. First, the prosecution must demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant; second, once the witness is shown to be unavailable, his prior testimony must bear some “indicia of reliability.” Ohio v. Roberts, supra, 448 U.S. at 66, 100 S.Ct. at 2538-39; Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972). Once the unavailability of the declarant has been established, the Supreme Court has indicated what factors must be present in order to comply with the purposes behind the confrontation requirement. Thus, in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Court held preliminary hearing testimony admissible as against a Confrontation Clause attack, noting that (1) the declarant was under oath, (2) the defendant was represented by the same counsel who later represented him at trial, (3) the defendant had every opportunity to cross-examine the declarant, and (4) the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Id. at 165, 90 S.Ct. at 1938. If these elements are present, the transcript bears a sufficient indicia of reliability and affords the trier of fact a satisfactory basis for evaluating the truth of the prior statement. Ohio v. Roberts, supra, 448 U.S. at 73, 100 S.Ct. at 2542-43. In the instant case, we hold that defendant was not denied his sixth amendment confrontation right when the trial court admitted the suppression hearing testimony. It is undisputed that Jones was involved in a serious accident after the suppression hearing and was unable to testify at trial. At the time his testimony was given, Jones was under oath at the suppression hearing and defendant was represented by the same counsel who represented him at trial. Finally, defense counsel conducted a thorough cross-examination in an attempt to show that the defendant’s statements were involuntary. In short, the demands of the Confrontation Clause were satisfied here. Finally, defendant contends that the trial court erred when it allowed the reading of a written statement prepared by defendant which was given to Jones. Defendant asserts that the statement was improperly admitted because Jones was not available to provide a proper foundation for the statement. In order to prove an admission or declaration it is necessary to show that the statement is relevant and material to the issues of the case and that the statement was, in fact, made by the declarant. See generally 29 Am.Jur.2d, Evidence, § 598. Such matters of determination are within the discretion of the trial court. See State v. Ray, supra; 17A A.R.S. Rules of Evidence, rule 104. Defendant does not dispute the genuineness of the written statement, nor does he question its relevancy or materiality. Therefore, we find no error. PRISON RECORDS On the last day of trial, defendant offered into evidence one page of chronological notes of his prison records made at the Utah State Penitentiary. The portion of the record which defendant sought to introduce reflected that defendant had been placed in maximum security because of his fear of being labeled a “snitch” at the prison. Defendant attempted to introduce these records in order to corroborate his professed fear of being a “snitch” as an explanation for initially lying to investigating officers regarding how he had acquired the Cadillac. Defendant’s testimony at trial tended to incriminate an escaped Utah State Prison inmate. The entire prison record was 25 pages in length, of which defendant attempted to introduce only a small portion. The prosecutor objected to its admission, arguing that the portion sought to be introduced was taken out of context and that he had not been given an opportunity to examine the 25-page prison record. The trial court sustained the objection and defendant now maintains this ruling constituted prejudicial and reversible error. Again, we must observe that the trial court is allowed considerable discretion in determining the admissibility of evidence and such discretion will not be disturbed on appeal unless it has been clearly abused. State v. Tulipane, 122 Ariz. 557, 596 P.2d 695 (1979); State v. Macumber, 119 Ariz. 516, 582 P.2d 162, cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978). In this instance, the trial court acted well within its discretion by excluding the proffered exhibit. Although the entry offered noted that defendant had requested protection because he had been labeled a “snitch,” the very next entry indicated that defendant was “getting no pressure from anyone” and that “everything is going fine.” Understandably, defendant did not wish to have this portion of the prison record admitted. This fact indicates the unreliability of the proffered exhibit. The trial court did not err in sustaining the State’s objection. STATE’S EFFORTS TO OBTAIN FINGERPRINTS OF THE “FRENCH PEOPLE” After giving numerous accounts as to how he came into possession of the victim’s Cadillac and credit cards, at trial defendant admitted that all of his prior accounts were false. Defendant then testified that he was introduced to a “French couple” by escaped convict James Travis at the Roadrunner Truck Stop in Phoenix. Defendant observed the “French couple” to be very nervous and learned they were driving a new Cadillac. Suspecting the Cadillac to be stolen, defendant “conned” them into trading the Cadillac for his own stolen Ford Fairmont. The couple agreed and an exchange was made at the truck stop. At this time, defendant purportedly received a piece of paper from the “French couple” with their names and addresses in France. As related earlier, the Ford was the vehicle found abandoned north of Flagstaff. A number of unidentified fingerprints were lifted from the vehicle by Coconino County Deputy Sheriffs. Defendant sought to verify whether any such people existed and requested the State to obtain their fingerprints from the United States Department of State. Defendant now maintains that the State did not make a good-faith effort to obtain the fingerprints, thus depriving defendant of a fair trial. We have said: “[T]he state has an obligation pursuant to rule 15.1 [17 A.R.S. Rules of Criminal Procedure] to disclose such information not in its possession or under its control if the state has better access to the information; if the defendant shows that it has made a good faith effort to obtain the information without success; and if the information has been specifically requested by the defendant.” State v. Smith, 123 Ariz. 231, 239, 599 P.2d 187, 195 (1979). Defendant, relying on this statement in Smith, maintains that the United States Department of State and American Consulate in France, being federal government agencies, were more likely to cooperate with the State than the defense and thus the State had better access to the information. We find this argument to be specious. First, the claim that the State did not make a good-faith effort to obtain the fingerprints of the “French couple” rings hollow in view of the fact that defense counsel had informed the trial court that “[w]e have contacted the Department of Justice and the French Consulate, have made long distance calls to Paris, and reached a blank wall in any further efforts we can do to get the French people or the passports or pictures which are important. We have requested the State to do this for us. And I think they are all doing it — I think they are vigorously working on this." (Emphasis added). The prosecutor stated that he contacted the Federal Bureau of Investigation immediately after he and defendant’s counsel had discussed the matter. Three-weeks later, the trial court inquired how the investigation regarding the French people was coming along. Defense counsel agreed that nothing had been discovered and additionally stated that he was satisfied that all that could be done had been done. Second, we do not view Smith as controlling here. Defendant would extend our holding in Smith so as to place an obligation on the State to seek out information requested by the defense any time another governmental body is involved. In the context of Smith, we stated that “[a]nother law enforcement authority is far more likely to cooperate with the prosecution than with defense counsel.” 123 Ariz. at 239, 599 P.2d at 195. In the present case, the prosecutor contacted the FBI in order to obtain the information requested. This inquiry proved fruitless. At this point the State did all it was obligated to do under Rule 15.1 and Smith. It did not have the obligation to conduct an extensive investigation in order to support defendant’s case nor did it have an obligation to carry this inquiry any further under the flawed assumption that the State would meet with any greater success merely because it was dealing with a governmental body. Defendant does not argue that the Department of State or Consulate was uncooperative nor does he say what more the State could have done. As noted above, defendant did not complain of lack of a good-faith effort on the part of the State in the court below. With these factors in mind we conclude that defendant was not deprived of a fair trial. PHOTOGRAPH OF THE DECEASED Defendant complains that the trial court erred in admitting a photograph of the deceased because it was so gruesome and inflammatory that it incited the passions of the jury and prejudiced the defendant. See 17A A.R.S. Rules of Evidence, rule 403. Trial courts have great discretion in the admission of photographs. State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). As long as the photograph has some probative value it is admissible even if inflammatory. Id. Admission is proper where the photograph aids to identify the victim, to illustrate how the crime was committed, to aid the jury in understanding testimony, and to show the location of the mortal wounds. State v. Vickers, 129 Ariz. 506, 633 P.2d 315 (1981). The photograph admitted at defendant’s trial showed the partially decomposed corpse of the victim with a rope tied around the remains of the neck. The picture is in black and white and without close examination it is difficult to discern that the photograph is actually that of a human body. In our opinion, the photograph was not so gruesome so as to inflame or prejudice the jurors. Further, the photograph was the only one available to show how the cord used for the strangulation was placed around the victim’s neck. In addition, the photograph was used by the Yavapai County Medical Examiner in order to explain to the jury now how the cord was knotted. Thus, the photograph illustrated testimony at trial and aided the jury in understanding how the crime was committed. The trial court did not abuse its discretion in admitting the photograph. SUFFICIENCY OF THE EVIDENCE Defendant argues that there are no probative facts to support the verdict and thus the conviction should be reversed for lack of substantial evidence. In State v. Tison, 129 Ariz. 546, 633 P.2d 355 (1981), we re-examined the standard of review utilized by Arizona appellate courts in determining whether there is substantial evidence to support a guilty verdict. We concluded that the approach employed in Arizona equates with the mandate in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requiring the reviewing court to find that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In reaching this conclusion we stated “[o]ur review function will therefore be concerned with whether there exists substantial evidence from the entire record from which a rational trier of fact could have found guilt beyond a reasonable doubt.” State v. Ti-son, supra, 129 Ariz. at 553, 633 P.2d at 362. The State’s case against the defendant consisted entirely of circumstantial evidence. Defendant relies on this absence of direct evidence in arguing there were no probative facts to support the verdict. However, as we stated in Tison, supra, “[t]he lack of direct evidence of guilt does not preclude [a verdict of guilty] since a criminal conviction may rest solely upon proof of a circumstantial nature. State v. Carriger, 123 Ariz. 335, 599 P.2d 788 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980). It is unnecessary for the prosecution to negate every conceivable hypothesis of innocence when guilt has been established by circumstantial evidence. State v. Olivas, 119 Ariz. 22, 579 P.2d 60 (App. 1978).” 129 Ariz. a 554-555, 633 P.2d at 363-364. After reviewing the entire record, we are of the opinion that there was sufficient evidence from which a rational trier of fact could have found guilt beyond a reasonable doubt. Without recounting every incriminating fact which would support the conviction, we observe that defendant gave numerous contradictory versions as to how he came into possession of the victim’s Cadillac; denied using the victim’s credit cards, and stated he had never been in Arizona until he discovered that the authorities could place him there on several occasions; personal effects belonging to the victim were found in the Ford Fairmont; a diamond ring belonging to the victim was found on Wilma Horrocks’ finger; although defendant professed to have never met Larry Grove, he apparently knew that the victim was an elderly man when stopped by the New York State Trooper; defendant testified that several items of personal property found in the Cadillac were his, although other witnesses testified that they belonged to the victim. Based upon these facts and other evidence presented by the State, we cannot say that the jury was unjustified in disbelieving defendant’s version of how he acquired the Cadillac. We find no error. JURY INSTRUCTIONS Defendant urges that the trial court erred in failing to give a portion of defendant’s requested instruction which dealt with the question of voluntariness of statements made by him to the police officers. He also contends the trial court erred in refusing to give a requested instruction which would have told the jury, in effect, that they were to exercise their individual opinions when considering the evidence. With respect to the voluntariness instruction, defendant’s counsel made no objection to the trial court’s decision to omit a portion of the requested instruction. As such, defendant may not now claim error, 17 A.R.S. Rules of Criminal Procedure, rule 21.3(c), unless the error is fundamental. State v. Dickey, 125 Ariz. 163, 608 P.2d 302 (1980). We find no fundamental error here. As to the “individual opinion” instruction, we agree with the trial court’s view that this area was adequately covered by the standard instructions given by the court. IMPOSITION OF THE DEATH PENALTY After conducting an aggravation-mitigation hearing pursuant to former A.R.S. § 13-454(C), State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the trial judge found two aggravating circumstances, A.R.S. § 13-454(EX1) and (2). The trial court stated: “1. The defendant has been convicted of another offense in the United States for which under Arizona law sentence of life imprisonment or death was imposable, namely: He was convicted of second degree murder.... “Number 2. The defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person, namely: The murder committed as set forth in circumstance one above was by strangulation.” The trial judge found that the fact that the jury was given a felony murder instruction may be considered a mitigating circumstance, but went on to state that there was “no evidence or information to permit the Court to find that the murder was a mere consequence of the felony.” The court also found that the fact that defendant was a model prisoner was a mitigating circumstance. In conclusion, however, the court found that these mitigating circumstances were not sufficiently substantial to call for leniency and sentenced defendant to death. Defendant does not dispute the finding of the aggravating circumstances but disputes the trial court’s finding of mitigating circumstances. Defendant contends that the following mitigating circumstances exist and are sufficient to call for leniency: 1. There is doubt of guilt for sentencing purposes. 2. Defendant is a model prisoner who gets along well in prison. 3. A felony murder instruction was given and the evidence did not show that defendant had a “requisite intent to kill.” 4. There was a lack of specific intent to cause death. Unlike appellate review of non-capital crimes, our duty on review of the death penalty is to conduct an independent examination of the record to determine whether the death penalty was properly imposed. State v. Vickers, 129 Ariz. 506, 633 P.2d 315 (1981); State v. Watson, Ariz., 628 P.2d 943 (1981). From our examination of the record, we conclude that the two aggravating circumstances were properly shown. We agree with the trial court’s finding that the giving of a felony murder instruction may be considered as a mitigating circumstanced The fact that defendant is a model prisoner may also be considered by the court. The evidence of circumstances presented by the defendant, we do not consider to be mitigating. First, we have already determined that there was sufficient evidence to support the verdict; thus, there is no merit in defendant’s contention that there was doubt of guilt. Defendant’s third and fourth mitigating circumstances essentially stand for the same proposition, that there was no showing of a specific intent to kill the victim. We have recently addressed similar arguments in State v. Jordan, 126 Ariz. 283, 614 P.2d 825, cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). In Jordan we noted that when a defendant acts with the knowledge that his behavior is substantially likely to cause a result he is considered to intend that result. Id. at 288, 614 P.2d at 830. In the present case, the victim died by asphyxiation by ligature strangulation. We believe that it is reasonable to conclude, in the absence of any evidence to the contrary, that one who undertakes to strangle another human being, had the purpose of causing death or had the substantial knowledge death would result. Cf. State v. Jordan, supra. Defendant did not introduce any evidence to rebut this inference other than advancing a “theory” that defendant may have specifically intended only to steal an automobile and some money, but in the course of so doing, the victim may have attacked him, causing defendant to grab a rope within reach, resulting in the strangulation. In view of the fact that the victim was a 74-year-old man and the defendant was 35 at the time of the crime, we find defendant’s “theory” to be implausible and insufficient to prove lack of specific intent to cause death. After conducting our independent examination of the record and weighing the aggravating and mitigating circumstances against each other, we must agree with the trial court’s determination that the mitigating circumstances are not sufficiently substantial to call for leniency. The sentence of death was properly imposed. CONSTITUTIONALITY OF THE DEATH PENALTY STATUTE Finally, defendant maintains that imposition of the death penalty under former A.R.S. § 13-454 is unconstitutional. First, defendant argues that the statute as applied pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979) , is an ex post facto law; second, that the statute is unconstitutional because it does not require the prosecution to prove the totality of the aggravating circumstances outweigh the totality of the mitigating circumstances beyond a reasonable doubt; and finally, the statute is unconstitutional because it leaves the imposition of death to a one-man judge rather than to a jury. As defendant recognizes, we have been presented with these arguments numerous times and have rejected them. State v. Steelman, 126 Ariz. 19, 612 P.2d 475, cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980); State v. Jordan, supra; State v. Smith, 125 Ariz. 412, 610 P.2d 46 (1980) ; State v. Watson, supra. The judgment of guilt and sentence of death are affirmed. STRUCKMEYER, C. J., HOLOHAN, V. C. J., and CAMERON and GORDON, JJ., concur. . More recently, the United States Supreme Court in United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), has identified three factors in determining whether a government agent is deliberately eliciting incriminating statements from the accused within the meaning of Massiah. First, the agent must be acting under instructions as a paid informant for the government; second, the informant is ostensibly no more than a fellow inmate of the accused; and third, the defendant is in custody and under indictment at the time he is engaged in conversation by the informant. 447 U.S. at 270, 100 S.Ct. at 2186. However, we do not believe that any of these factors are applicable to the present case. . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . A.R.S. § 13-3988(B)(1) and (2) provides: “The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including but not limited to the following: 1. The time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment. 2. Whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession. . Rule 804(b)(1) provides: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarantes unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, or in deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. . Defendant relied on his fear of being labelled a “snitch” in order to explain why he gave numerous fabricated accounts as to how he came into possession of the Cadillac, which differed from defendant’s testimony at trial, where he implicated an escaped Utah convict.

OPINION HOWARD, Judge. Is a judgment of a Mexican court a “foreign judgment” within the meaning of A.R.S. Sec. 12-1701 of the Uniform Enforcement of Foreign Judgments Act? We hold that it is not and affirm. Appellant filed in the Superior Court of Santa Cruz County, eight Mexican judgments which it sought to enforce under the Uniform Enforcement of Foreign Judgments Act, A.R.S. Sec. 12-1701 et seq. Pursuant to appellees’ motion, the trial court quashed the judgments. A.R.S. Sec. 12-1701 states that ‘“foreign judgment’ means any judgment . . . which is entitled to full faith and credit in this state.” Appellant contends that a judgment from Mexico is a foreign judgment and is entitled to full faith and credit. We do not agree. The “full faith and credit” that is referred to in 12-1701 is the full faith and credit that is required by the Constitution of the United States, Art. IV, Sec. 1, which states: “Full Faith and Credit shall be given in each State to . . . judicial Proceedings of every other State. . . . ” This means that full faith and credit must be given to the judicial proceedings of a sister state but not to judgments from foreign countries. Affirmed. BIRDSALL, J., and ROBERT J. HOOKER, Superior Court Judge, concur. NOTE: Chief Judge JAMES D. HATHAWAY having recused himself in this matter, Judge ROBERT J. HOOKER was called to sit in his stead and participate in the determination of this decision.

LOCKWOOD, Justice: On June 12, 1969 this Court received a petition for a writ of coram nobis by defendant in propria persona while in prison. His basic complaint was that he was promised that the minimum sentence would not exceed five years and that if a mitigation hearing revealed that there was no violence, the sentence would not exceed five years. To put it in the words used later by the defendant: “The reason I want to change [the plea] is because they wouldn’t keep their bargain * * *. Had I been sentenced to a term not to exceed five years, I wouldn’t have changed my plea.” In other words, defendant claimed that he ought to be able to withdraw his guilty plea when the sentence imposed exceeded five years, because it exceeded what he had been promised. Pie also claimed incompetence of counsel. We granted the writ and ordered a hearing to be held by Judge Greer of the Superior Court of Apache County. The hearing was held on March 6, 1970. Two hundred pages of testimony were taken from, defendant, his original counsel, the Navajo County Attorney, Judge Shelley, who handled the original matter in Navajo County, and two of defendant’s relatives. The original record from Navajo County shows that defendant was charged with second degree rape of a fourteen year old girl on three different occasions in Navajo. County, and was also charged with a similar offense in Apache County. When the mother of the girl threatened trouble, defendant fled to Texas, where he was apprehended and brought back to the Navajo County Jail. There his wife smuggled in some hacksaw blades with which he attempted to break jail. At his first appearance before Judge Shelley, the judge advised him of the seriousness of the charge and the possible range of punishment. He was found to be indigent and counsel was. appointed for him. He pleaded not guilty to the three counts of second degree rape. He was then forty-eight years old and had been married eight times. At a mitigation hearing (after a change of plea) his mother and sister, and a psychiatrist gave evidence that he had a “strong compulsion for sexual misconduct” and needed psychiatric help rather than punishment. A former wife testified that he chased other women while she was married to him, and his most recent wife testified that their child was born before her marriage to him. His first wife was only thirteen years old when he married her. The evidence at the coram nobis hearing shows as follows: From the time of his appointment, to the date of sentence, his attorney Robert T. Jenkins labored diligently and competently on behalf of the defendant. He had defendant examined by a psychiatrist. He investigated the circumstances. When the evidence of his client’s guilt appeared to be overwhelming, he embarked upon a series of conferences with the Navajo County Attorney seeking to obtain a favorable recommendation of probation or at least a very short sentence. The county attorney was adamant against making any recommendation, but did yield so far as to agree that he would dismiss two counts and overlook the attempted escape if defendant would plead guilty to one count. Jenkins also pursuaded the Apache County Attorney to agree not to prosecute defendant for the offense committed in that county if defendant received a prison sentence in Navajo County of at least five years. Counsel promptly reported the results of each conference to his client, who for sometime indicated he did not wish to plead guilty to any offense until he knew what sentence would be imposed on him. Because of defendant’s misgivings about a plea, his counsel and the Navajo County Attorney went to Judge Shelley’s chambers and discussed the case for about thirty mintttes. As Judge Shelley testified “ * * * they wanted to find out what I would agree to as part and parcel of their consideration * * * the discussion then went around the subject of if the defendant is willing to plead guilty, what would be the maximum minimum sentence.” After being told the facts, Judge Shelley observed that he did not think that the case was one for probation ; that eight years would be about right; and that he would be willing to agree that the minimum sentence given would not exceed eight years if only one count were before him, and defendant pleaded guilty to it. Before the conference ended, defense counsel had also obtained from the judge an agreement that he would permit a mitigation hearing before sentence, at which time defendant might produce evidence, and if such evidence indicated that eight years was too severe, the sentence imposed might be less. Shortly thereafter, defendant pleaded guilty to second degree rape and, after the mitigation hearing, Judge Shelley imposed sentence of seven years and nine months to eight years. Credit was ordered to be given for the four months defendant had already been in jail. Defendant’s attorney testified that immediately after the conference with the judge, he reported to his client. The attorney stated: “A. I think it would be fair to say that I advised my client that, in fact, I did advise my client that I felt that if he entered a plea of guilty, the maximum minimum sentence that would be imposed would be eight years, would be not greater than eight years. “Q. Did you ever discuss with Mr. Maxwell a maximum minimum sentence of five years ? ****** “A. Not from the Navajo County proceedings, no, except in my own opinion. I told Mr. Maxwell that, inasmuch as we would be permitted to go to a hearing in mitigation and aggravation, that, if we could show mitigating circumstances sufficient to sway the Court, that I felt we could reasonably anticipate a lighter sentence than eight years on the low side and that I would suggest to him that perhaps the sentence would be three years or five years. “Q. And did you suggest that to him ? “A. I did, yes, but it was contingent upon — my representations were contingent at all times on the mitigation hearing being favorable.” The county attorney testified that the judge refused to consider a five year sentence. Defendant testified that he would not have pleaded guilty had he known that the sentence would be eight years; that he had been offered a five year sentence more than one time by his attorney and had refused it; that he had been offered a maximum of five years by the county attorney in his office (which the county attorney denied); that after the judge had spent three hours with the attorneys working out the deal which he was offered, defendant was “scared to have taken a chance on going to court” and was afraid that the judge would then “throw a lot more time at me.” Judge Greer, who had the opportunity to observe the witnesses, tried to resolve this conflict in the facts by his findings. The findings pertinent to this issue which are not covered by the undisputed facts set out above are: That there was no reporter present at any of the prior proceedings; that defendant’s attorney "may or may not have related to the defendant that he could receive a sentence of eight years, but that the defendant 'concluded' from the conference with Jenkins that he could expect three to five years in prison or probably probation.” (Finding No. 26) ; that after the conference with his lawyer, defendant acknowledged a willingness to change his plea to guilty; that “defendant did not fully expect the consequences of his plea of guilty at the time it was entered”; that there is no evidence that defendant was ever informed by anyone that if he rejected the arrangement concurred in by Judge Shelley a greater sentence would be imposed if he were to be found guilty after a trial; that “the defendant, at the time he changed his plea to guilty, believed that sufficient evidence in mitigation could be presented so that he might reasonably expect a sentence of not to exceed five years”; that “while the defendant may have believed that he might receive as much as five years or possibly probation, he did not believe he would receive the punishment imposed by the trial court”; and that at no time did the county attorney promise leniency to defendant or promise to recommend any particular sentence prior to the conference with Judge Shelley. Objections to the findings of fact were filed but after a reading of all of the testimony, wc are convinced that there is ample evidence to support the positive findings. While it is true that findings of fact which have support in the evidence will not be overturned on appeal, even though the evidence may be contradictory, if the trial court has not made a positive finding of any particular fact, we will then turn to the evidence to determine what the finding should be in that regard. Here, Finding No. 26 reads as follows: “That following the conference [with Jenkins, Judge Shelley and the county attorney] Jenkins may or may not have related to the Defendant that he could receive a sentence of eight years, but the Defendant concluded from the conference with Jenkins that he could expect three to five years in prison or probably probation.” (Emphasis supplied.) Judge Greer who held the Corum Nobis Hearing therefore did not find positively whether Jenkins told defendant that Judge Shelley had indicated he believed that a term not exceeding eight years would be proper under the circumstances as he understood them. Judge Shelley’s testimony at the Coram Nobis Flearing in this regard was as follows: “Q. Up until that aggravation-mitigation hearing, was your mind open as far as the possible range of sentence, from probation to the maximum minimum that had been discussed? “A. Oh, if there — -that would have had to depend on the evidence. If the evidence had indicated something that I wasn’t aware of that happened to minimize the matter, I undoubtedly would have felt, to go lower had there been any thing in the aggravation-mitigation hearing that would have indicated to me that it ought to go lower.” Attorney Jenkins testified regarding his conference with Judge Shelley as follows: “A. Did I make a proposal ? "Q. Yes. “A. Yes, I did. “Q. What was the proposal? “A. That the Judge give me some indication of what I could hope for in the way of a maximum sentence. “Q. And what did the judge say to you? “A. He said that in these cases he couldn’t see how a maximum minimum sentence of eight years would be unreasonable. “Q. Was there ever a figure of five years discussed. “A. Not with Judge Shelley. “Q. Did you discuss anything else with regard to your client’s plea, other than the possibility of an eight-year sentence? “A. Yes. “Q. What was that? “A. I told him that we would want an • opportunity to go to a mitigation-aggravation hearing to show circumstances that might justify probation or the imposition of a very light sentence.” “Q. And did the judge agree with that ? In other words, agree to give you a mitigation hearing? “A. He gave me the indication that that would be acceptable, yes.” On the other hand, the defendant himself at the Coram Nobis Hearing testified in answer to a question as to what Jenkins had told him regarding the conference with Judge Shelley as follows: “A. Yes, sir, he came in and called me out back into those little offices and told me, I have got a much better deal for you, I think, better deal but the — I met with Mr. Taylor and Judge Shelley; I been in with them all morning, about three hours, he' said, all morning I have been talking to him, with them; they are working out a' deal; it’s a very good deal and I think you better take it and— “Q. What was it that he told you as the deal at that time? “A. He said the deal was that, if — t that he had asked for this mitigation hearing and if there was no violence showed, there would be no chance of me getting over five years and then the deal was straight that I would probably get three to five or I could get one to three or possibly probation. * * * * * * “THE WITNESS: I felt that, in view of the fact that he had put three hours working on the case and he had known all about the case from the time that it was filed and then been in the investigation of, that I would have been scared to have taken a chance on going to court. “Q. What were you afraid of, Herb? “A. Well, I was afraid he would throw a lot more time at me.” There is obviously a conflict between the testimony of the defendant and the testimony of the Attorney Jenkins and Judge Shelley, regarding whether the defendant was advised that Judge Shelley had indicated that he thought a sentence of not to exceed eight years was proper under all the circumstances. We find from an examination of the entire record that Jenkins did advise the defendant of Judge Shelley’s statement, and also indicated that because the Judge was willing to listen to a mitigation hearing, the attorney felt that he might be able to persuade the Judge to give the defendant a lesser sentence. Plea bargaining is well recognized in the annals of criminal law. There have been numerous decisions discussing and approving this procedure. Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009; McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162; State v. Jennings, 104 Ariz. 3, 448 P.2d 59. Most of the difficulty lies in the fact that prior to Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 plea bargaining, while recognized, was more or less covert. The defendant was usually asked whether his plea had been induced by any threats or promises, to which his reply would be in the negative. This of course was in the face of his understanding that by pleading guilty he would receive some consideration in the matter of sentence or in the dismissal of other charges. The Supreme Court of California in People v. West, 91 Cal.Rptr. 385, 477 P. 2d 409 has indicated that in view of the Brady case, supra, that the basis of the bargain should be disclosed to the court and incorporated into the record. The court stated: “In view of the recent express approval of plea bargaining in Brady v. United States, supra, 397 U.S. 742, 90 S.Ct. 1463, [25 L.Ed.2d 747,] the justification for concealment of the bargain has disappeared; instead, the basis of the bargain should be disclosed to the court and incorporated in the record. We should exhume the process from stale obscurantism and let the fresh light of open analysis expose both the prior discussions and agreements of the parties, as well as the court’s reasons for its resolution of the matter.” There are many ways in which this could be accomplished, suggestions being that the bargain could be stated orally and recorded by court reporters, or it could be set forth by the clerk in the minutes, or the parties might file a written stipulation stating the terms, or the court or counsel might themselves find it useful to prepare and utilize forms for the recording of plea bargains. There may be other methods also. From the entire record in the case before us we conclude that the defendant entered his change of plea based upon the understanding that the Judge considered that a maximum minimum of eight years was about correct under all the circumstances, but that at a mitigation hearing the Judge would listen with an open mind to whatever was presented and that the attorney might be able to convince the Judge that there were extenuating circumstances which would persuade the latter to reduce the sentence probably three to five years or possibly to probation. We conclude that defendant’s change of plea was entered intelligently, understandingly and voluntarily. Under these circumstances we hold that the defendant’s plea of guilty must stand. State v. Wheatley, 106 Ariz. 524, 479 P.2d 409. The relief prayed for is denied, STRUCKMEYER, C. J., HAYS, V. C. J., and UDALL, J., concur. NOTE: Justice JAMES DUKE CAMERON did not participate in the determination of this matter.

OPINION HOWARD, Judge. Is a person a fugitive within the meaning of our Extradition Act, A.R.S. Sec. 13-3841 et seq., if he has violated his probation in the demanding state? We hold that he is and affirm. This is an appeal from the denial of a writ of habeas corpus. The extradition papers from Texas allege, inter alia, that appellant had been convicted in Texas of burglary that his sentence was suspended, that he was placed on probation and that he had violated the conditions of his probation by failing to report to his probation officer and by failing to remain in Dallas County. Appellant contends that the trial court erred in failing to grant habeas corpus relief because the extradition papers failed to comply with A.R.S. Sec. 13-3845 which provides: “A warrant of extradition shall not be issued unless the documents presented by the executive authority making the demand show that: 1. Except in cases arising under Sec. 13-3846, the accused was present in the demanding state at the time of the commission of the alleged crime, and thereafter fled from the state; 2. The accused is now in this state, and 3. Is lawfully charged by indictment found or by information filed by a prosecuting officer and supported by affidavit to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he. has been convicted of a crime in that state and has escaped from confinement or broken his parole.” (Emphasis supplied) Arizona’s version of the Uniform Extradition Act differs from Sec. 3 of the uniform act which provides that the demand must contain a statement by the executive authority of the demanding state that the person claimed has escaped from confine ment or has “. . . broken the terms of his bail, probation or parole . .. . ” Seven other states have language which omits the term “probation”; Alabama Code Sec. 15-9-33; Arkansas Code Sec. 43-3005 (III); Idaho Code Sec. 19-4505; Indiana Code Sec. 35-2.1-2-3(5)(c); Mississippi Code Sec. 99-21-1; Tennessee Code Sec. 40-1012; Wyoming Code Sec. 7-3-205. In the Idaho case of Richardson v. State, 90 Idaho 566, 414 P.2d 871 (1966), the court, without discussion, equated “parole” with the term “probation” in a case involving a probation violation. In State of Arizona ex rel. Babbitt v. Kinman, 27 Ariz.App. 66, 550 P.2d 1108 (1976), Division One held, without discussion, that the offense stated in the document which showed a probation violation charged an extraditable offense. In State v. Truman, 115 Ariz. 145, 564 P.2d 96 (App. 1977), we relied on the Division One case for the proposition that a probation violation is an extraditable offense under the Extradition Act. We adhere to our previous decision. We agree with the Colorado Supreme Court when it stated in the case of Gottfried v. Cronin, 192 Colo. 25, 555 P.2d 969 (1976): “... the extradition law is designed to prevent the successful escape of all persons accused of crime, whether convicted or not, and to secure their return to the state from which they fled for their due punishment, (citations omitted) Consequently, we have held that the extradition statutes should not be so narrowly construed as to enable offenders against the laws of a state to find permanent asylum in another state, (citations omitted) In light of section 16-19-103 and the Act’s purposes, we believe that section 16-19-104 does not limit the extradition of an individual convicted of a crime to instances where he has ‘escaped from confinement or has broken the terms of his bail, probation, or parole.’ Such language was only meant to be illustrative, but not'exhaustive, of the occasions when a convicted person can be considered to have fled from the justice of another state, (citations omitted) Where, as here, the requisition papers show that the person has been charged and convicted in the demanding state, and that he has not completed his sentence, that person can be extradited to the demanding state under the Uniform Criminal Extradition Act.” 555 P.2d at 972. Affirmed. HATHAWAY, C. J., and BIRDSALL, J., concur.

OPINION HOWARD, Judge. Appellant was convicted of theft of property valued at more than $1,000, knowing or having reason to know it was stolen, in violation of A.R.S. Secs. 13-1802, 13-701, 13-702, 13-801 and 13-803. He was placed on probation for three years with the condition that he serve six months in the Pima County Jail. Appellant raises three issues for consideration on appeal: (1) The trial court erred in the giving of certain instructions to the jury; (2) the court erred in permitting prosecutorial misconduct during closing argument, and (3) error was committed by refusing to give appellant’s requested jury instruction on the effect of intoxication. We reverse. The facts necessary for a determination of this appeal are as follows. On or about January 30,1980, a burglary occurred at the Calvary Evangelistic Center and various pieces of sound and musical equipment were taken. The minister of the center, Maynard Weisbrod, testified that about $2,000 worth of the property was returned to him on February 13,1980. The returned property was retrieved from appellant’s house on February 1 by two police officers. At trial, appellant testified that he purchased the equipment from men at the Tanque Verde Swap Meet on January 30, 1980, for $50 cash, although they had wanted $100 for it. When he returned home on February 1, he saw that his equipment was missing and called the police to report it stolen. The police came to his house to investigate and appellant told the police that he had bought the equipment at the swap meet and that he did not know the items were stolen although he “had never saw nobody sell something like that before.” Appellant attacks the instructions given to the jury concerning the statutory inferences of A.R.S. Sec. 13-2305. One of the instructions given was as follows: “The purchaser (sic) of stolen property, outside the regular course of business, permits a conclusion that the purchaser was aware of the risk that it had been stolen.” (Emphasis added) A.R.S. Sec. 13-2305(3) provides: “3. Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business, or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen.” (Emphasis added) This statute requires that the purchase or sale of the stolen property be made by a “dealer in property” which is further defined in A.R.S. Sec. 13-2301(B)(1) as “a person who buys and sells property as a business.” There was no evidence adduced at trial which established that either of the sellers were dealers in property. Furthermore, the effect of the instruction was to advise the jury that it could infer that anyone who buys property at a swap meet is aware of the risk that it is stolen. We do not believe that A.R.S. Sec. 13-2305(3) supports the giving of this instruction and hold that the error committed was prejudicial to appellant. Appellant alleges there were other errors in the language of the instructions concerning the statutory inferences. We need not discuss these at length and urge the trial court to follow the language of the statute. In light of our disposition of this issue, we need only address appellant’s claim regarding the trial court’s refusal to give his requested instruction on the effect of intoxication. Appellant claims there was competent evidence to support the giving of his Instruction No. 25 on the effect of intoxication on the particular culpable mental state necessary to commit the crime, i. e. “knowingly”. The trial court commits reversible error when it refuses to give an instruction predicated on a defense theory which is reasonably supported by competent evidence. State v. Govorko, 23 Ariz.App. 380, 533 P.2d 688 (1975). However, the mere fact that appellant had been drinking prior to the commission of the crime was not enough to warrant the giving of an intoxication instruction. Evidence that the drinking had such a substantial effect on him that he could not have formulated the necessary criminal intent was necessary. State v. Boyles, 112 Ariz. 63, 537 P.2d 933 (1975). The trial court did not err in refusing to give appellant’s instruction. The case is reversed and remanded for a new trial. HATHAWAY, C. J., and BIRDSALL, JJ., concur.

OPINION JACOBSON, Judge. This appeal is from a judgment affirming a decision of the Arizona State Liquor Board revoking appellant’s liquor license. The sole issue on appeal is whether the board imposed an excessive penalty and thereby acted in an arbitrary or capricious manner. Appellant Mary Petras owned a series 6 spirituous liquor license for the operation of Camelback Lounge at 633 W. Camelback Road in Phoenix, Arizona. Based upon police reports concerning an incident which commenced in the parking lot of Camelback Lounge, the State Liquor Board issued an Order to Show Cause why appellant’s license should not be suspended or revoked. Appellant was charged with selling liquor to minors, selling liquor to disorderly persons and failure to report an act of violence. All of these acts arose out of the following series of events. On April 27, 1978, six young men were drinking beer together at Camelback Lounge. In this group were Landy Buck Jones and Gary Neil Wilson, both of whom were 17 years of age. A dancer at the lounge complained to the bouncer, Paul Williams, that members of this group were yelling at her and disrupting her performance. Mr. Williams warned the young men at least twice to quiet down and stop spilling beer on the stage and on other customers. However, Mr. Williams did not ask any members of the group to leave the premises. Subsequently, four of the young men confronted Mr. Williams while he was talking to a friend outside the Lounge entrance and demanded to know why they were being harassed. A fight ensued in the parking lot. City of Phoenix police officers were called to the scene. Gary Wilson was identified as one of the individuals involved in the fight and as Wilson ran westbound on Camelback Road he was pursued by Officer Bruce Stallman. While Officer Stallman was attempting to handcuff him, Wilson took the officer’s service revolver and shot Stallman in the abdomen. Wilson again fled on foot and was pursued by Officer Stephen Durham. Wilson, fired at the officer who returned fire, fatally wounding Wilson. Following a hearing on June 5, 1981, the State Liquor Board issued findings of fact and conclusions of law upon which it based the decision to revoke appellant’s license. The board found that on April 27, 1978, at Camelback Lounge, Landy Buck Jones and Gary Neil Wilson, both of whom were under 19 years of age, had been served beer without having been asked for identification; Landy Buck Jones, Gary Neil Wilson, Tom Shaughnessy, and David Lee Davis had been served beer while they were intoxicated and disorderly and had been permitted to remain on the premises while intoxicated and disorderly; and an assault and battery occurred in the parking lot which ultimately led to a homicide. The board further found that appellant failed to make a timely report of these events. Based upon its findings, the board concluded that appellant had violated the statutes and board regulations as alleged in the Order to Show Cause. In reviewing the decision of the board we must use as our guidelines those given to the superior court in A.R.S. § 4-211.A. Arizona State Liquor Board v. Jacobs, 20 Ariz. App. 166, 511 P.2d 179 (1973). At the time the appeal was filed in the superior court, A.R.S. § 4-211.A. provided: Any decision of the board in any matter shall be final, unless any person aggrieved .. . within thirty days after receiving notice of the decision of the board, appeals to the superior court of the county in which the licensed premises are located, on one or more of the following grounds that the order was: 1. Founded on or contained error of law which shall specifically include error of construction or application of any pertinent rules; 2. Unsupported by any competent evidence as disclosed by the entire record; 3. Materially affected by unlawful procedure; 4. Based on violation of any constitutional provision; or 5. Arbitrary or capricious. Appellant’s pleadings in superior court allege A.R.S. § 4-211.A.1 and 5 as the bases of her appeal. We note that while she did not allege § 4-211.A.2, absence of competent evidence, as a basis for appeal in superior court and this court, appellant continues to assert that there was evidence contrary to the board’s findings of fact. However, in reviewing the board’s decision, this court does not weigh the evidence. In Arizona State Liquor Board v. Jacobs, id. at 169, 511 P.2d at 182 (1973), Division Two of this court stated: The State Liquor Board ... is the sole judge of the weight to be given each item of evidence. [Citations omitted.] Judicial review is limited to the inquiry as to whether there was any “competent evidence” to justify the Board’s decision. We also note that although § 4-211.A.1 was cited as a basis for appeal, no specific error has been pointed out. Rather, the essence of this appeal is the claim that revocation of appellant’s license is an excessive penalty and therefore constitutes an arbitrary or capricious decision. The Arizona State Liquor Board has sole authority to revoke a spirituous liquor license. A.R.S. §§ 4-112 and 4-210.B. The board may exercise its discretion to revoke a license for violation of the provisions of Title 4 or its own regulations. A.R.S. § 4-210. Appellant concedes statutory violations and that revocation is within the board’s authority. Her argument is that the penalty is unduly harsh when compared' with penalties imposed upon other licensees who have committed similar violations. Appellant contends that “the usual penalty for a first offense of selling to minors and selling to intoxicated persons is a token fine.” She then concludes that the only reason for revocation of her license was a failure to report to April 27, 1978 incident. She also claims that this failure was excusable because the Department of Liquor Licenses and Control had already received the police report of the incident. The record on appeal does not present a factual basis for this court to conclude that the State Liquor Board has a policy of imposing “token fines” for first offenses. Furthermore, the record reflects several prior warnings to Camelback Lounge for statutory violations and the imposition of two fines. We are likewise unpersuaded by appellant’s claim that her failure to file a report was excusable and that revocation was based solely upon her failure to file this report. The record on its face reflects board action based upon several violations. In further support of her contention that the board’s penalty is excessive, appellant cites Wesley v. State, 117 Ariz. 261, 571 P.2d 1057 (App. 1977). Apparently, appellant seeks to demonstrate that on one prior occasion the State Liquor Board imposed a fine upon a licensee who had a history of violent incidents at his establishment. Wesley was a wrongful death case in which the plaintiff claimed that the Liquor Board was guilty of malfeasance for failing to revoke a license. The court of appeals never reached this issue as the court upheld the dismissal by the trial court upon the ground that the liquor department had no duty to the plaintiff. The record is wholly insufficient to compare the 1973 incident referenced in Wesley to the board action now under review. In determining whether an administrative agency has abused its discretion by acting in an arbitrary and capricious manner, we review the record to determine whether there has been “unreasoning action, without consideration and in disregard for facts and circumstances; where there is room for two opinions, the action is not arbitrary or capricious if exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.” Tucson Public Schools, District No. 1 of Pima County v. Green, 17 Ariz.App. 91, 94, 495 P.2d 861, 864 (1972). The Arizona courts have consistently upheld decisions of the State Liquor Board where an opposite conclusion could have also been reached. See Garcia v. Arizona State Liquor Board, 21 Ariz.App. 456, 520 P.2d 852 (1974); Patula v. Circle K Corporation, 17 Ariz.App. 317, 497 P.2d 824 (1972). While the Arizona appellate courts have not had prior occasion to determine whether the revocation of a liquor license constitutes an excessive penalty, the New York Court of Appeals has described the scope of its review when asked to make a similar determination with respect to actions of the New York State Liquor Authority: [Petitioner's sole contention is that the sanction imposed by respondent was excessive. In this situation, the role of the courts in reviewing the penalty imposed by an administrative agency is extremely limited. Indeed, it is well settled that “where the finding of guilt is confirmed and punishment has been imposed, the test is whether such punishment is ‘so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.’ ” [Citations omitted.] 17 Cameron St. Restaurant Corp. v. New York State Liquor Authority, 48 N.Y.2d 509, 512, 423 N.Y.S.2d 876, 878, 399 N.E.2d 907, 909 (1979). The Arizona State Liquor Board imposed a statutorily permissible penalty. We find nothing in the record to demonstrate that the penalty was disproportionate to the offenses committed by appellant. There is competent evidence in the record to support the board’s decision that the violations occurred and that revocation of appellant’s license was appropriate. We therefore conclude that the board did not abuse its discretion or act in an arbitrary or capricious manner. Judgment affirmed. HAIRE, P. J., and EUBANK, J., concur. . Two counts in the order to show cause were dropped. These counts related to serving liquor to another member of the group who was alleged to have been 17 years of age. This individual failed to comply with the subpoena to attend the hearing. . A.R.S. § 4 — 211 has been amended by Ariz. Sess.Laws 1980, Ch. 231, § 13. While we apply the statute in force at the time the appeal was made to the superior court, we note that the scope of review under the circumstances of the instant case would be practically identical. A.R.S. § 4 — 211 now provides: Decisions of the board shall be subject to judicial review pursuant to title 12, chapter 7, article 6 [A.R.S. § 12-909 et seq., the Administrative Review Act].

McFarland, Justice This case comes before us on a petition to review a decision of the Court of Appeals, Department B, Division I, which affirmed in part and reversed in part a decision of the Superior Court. Wahl v. Southwest Savings and Loan Association, 12 Ariz.App. 90, 467 P.2d 930. The Southwest Savings and Loan Association, hereinafter referred to as Southwest, brought an action to foreclose 24 separate mortgages, each covering different parcels of real property. The appellants claimed a materialmens lien upon all 24 tracts, together with the buildings constructed thereon. They are hereinafter referred to as Claimants. All of the claims involve the same principles of law with the exception of Ray Lumber Company, (Ray), which had a different statement of facts and presented additional questions. Eighteen of the mortgages were recorded before the construction commenced. While the Claimants originally claimed a materialmens lien against all 24 they abandoned the lien as to the 18 on which mortgages were recorded prior to the commencement of construction. The other six present a different fact situation. The materialmen, including Ray, contend that construction commenced before the recording of the remaining six mortgages. All 24 mortgages including the six were executed and delivered to Southwest in August of 1963. The 18 were recorded September 9, 1963, however, the remaining six were not recorded until October 30, 1963. It is the contention of the materialmen that their liens were established prior to that date. Ray presented an additional question in the courts below, namely, as to whether the recording of his lien was timely made, and his right to a lien on certain undisbursed mortgage loan proceeds. We accept the decision of the Court of Appeals that Southwest had a prior mortgage on the 18 buildings; also their decision that Ray timely recorded his materialmens lien, and that Ray has no interest in the undisbursed funds. We accepted jurisdiction for the limited purpose of determining the remaining questions involved in the priority between the six mortgages and liens which are: (1) Whether the materialmen had actual or constructive notice of the Southwest mortgage before their liens attached; (2) Whether the materialmens liens relate back to the period before the mortgages were recorded, and (3) As to the proper method of establishing the amount of each of the liens. In the court below, the appellants herein relied on a “one project” theory of construction. Their argument is that, since the project was built by one contractor under one contract with the owner, it was one project. They argue therefore that the materialmens liens should relate back to the time that the general contractor did any labor or furnished any material for the first building. While they abandoned their claim on the 18 recorded before labor or material was furnished they use the same argument as to the remaining six. There remains the three questions presented as to the remaining six buildings. The first question must be determined under § 33-992, A.R.S.: “The liens provided for in this article are also preferred to all liens, mortgages and other encumbrances of which the lienholder had no actual or constructive notice at the time he commenced labor or commenced to furnish materials.” The argument of Southwest that the materialmen had constructive notice of the six mortgages for the reason that 18 had already been recorded is without foundation. It could be just as forcefully argued that the failure to record the six at the time the 18 were recorded was notice to the materialmen that the six were not covered by mortgages. Section 33-992 specifically provides that the liens are to be preferred “to all liens, mortgages and other encumbrances of which the lienholder had no actual or constructive notice at the time he commenced labor or commenced to furnish materials.” In Leeson v. Bartol, 55 Ariz. 160, 168, 99 P.2d 485, 489, we held: “Lien laws are remedial and are to be liberally construed.” Under the facts of the instant case there was neither actual nor constructive notice. This brings us to the second question as to the date the materialmens liens were established for the remaining six houses. This question likewise requires liberal construction as provided in Leeson v. Bartol, supra. In the stipulation of facts it is shown that three of the six apartment buildings, namely Al, A8 and B1 had footings actually dug prior to the recording of the mortgages October 30, 1963. The footings for the remaining three were dug some time subsequent to October 30th. The stipulation further shows that each of the materialmen, with the exception of Ray Lumber, delivered materials to a common site to be used in the construction of some or all of the apartment buildings on the 24 parcels prior to October 30, 1963. In construing Sec. 2032 of the Arizona Revised Code of 1928, which is substantially the same as § 33-992, A.R.S., in Wylie v. Douglas Lumber Co., 39 Ariz. 511, 8 P.2d 256, 83 A.L.R. 918, we said: “When a claim and notice of lien is made out and filed according to the statute, it relates back to some act of the contractor or to some act of the lienor himself — to which one of these is the crucial point here. In other words, does the lien claimant’s right to a lien under the facts of this case date from the time the contractor commenced the labor on the property, or from the time each one of the lien claimants commenced to furnish material or labor to the contractor? If the former is the correct date, then the liens here attached first; but, if the latter is the correct date, the mortgage first attached to the property, and should have preference. The present section of our statute fixing preference is 2032, Revised Code of 1928, reading as follows: “ ‘2032. Preference over Subsequent Encumbrances. The liens provided for in this article, unless otherwise herein provided, arc preferred to all liens, mortgages or other encumbrances which have attached upon the property, subsequent to the time when the labor was commenced or the materials commenced to be furnished, also, to all liens, mortgages and other encumbrances of which the lienholder had no notice, actual or constructive, at the time he commenced the labor or commenced to furnish the materials.’ “This first found a place in our laws as section 2908, Revised Statutes of 1901. It was amended by section 20, Act No. 90, Laws of 1903, and as amended was carried forward as paragraph 3658 of the Revised Code of 1913. In its present form it is to all intents and purposes the same as it was after the amendment of 1903 and as in the 1913 Code. While it is not verbatim the statute of California (section 1186, Kerr’s Code Civ.Proc. 1920), we take it that it was probably borrowed from California and has the same meaning. The latter statute reads as follows: “ ‘1186. Effect of Liens. The liens provided for in this chapter are preferred to any lien, mortgage, or other encumbrance which may have attached subsesequent to the time when the building, improvement, or structure was commenced, work done, or materials were commenced to be furnished; also, to any lien, mortgage, or other encumbrance of which the lienholder had no notice, and which was unrecorded at the time the building, improvement or structure was commenced, work done, or the materials were commenced to be furnished.’ “Because of the close similarity of these statutes, we feel the construction placed thereon by the California courts should be very persuasive, if not controlling. If the laborer or materialman performs labor or furnishes material to the contractor under the contract, the courts of California hold his right to a lien attaches ‘at the time when the labor was commenced’ by the contractor; but, if the laborer or materialman furnishes labor or material under a void contract between the owner and contractor, or furnishes labor or material to the owner-contractor directly, then the lien dates from the time he commences to labor or to furnish material. As will be seen from the quotation below, this rule was first announced in a case wherein the contract between the owner and the contractor was held to be void because of the failure to record it as the law provided. But that does not affect the logic or soundness of the construction. The very recent case of American Building Material Service Co. v. Wallin, 116 Cal. App. 527, 2 P.2d 1007, 1008, approves the rule stated.” In construing a similar statute the California Supreme Court in Pacific Mut. Life Ins. Co. v. Fisher, 106 Cal. 224, 39 P. 758 held: “The lien commences when the claimant begins to furnish the materials, and includes all the materials that he may thereafter furnish for the building (McCrea v. Craig, 23 Cal. 522, 525), whether they are furnished under an express contract in which the terms and quantity are fixed, or under a contract implied from their purchase and use in the building from time to time as they are needed.” The stipulation shows that materials which were furnished prior to October 30, 1963, by materialmen were for all of the buildings, including the six upon which the mortgage was recorded October 30, 1963. In Wylie v. Douglas Lumber Co., supra, in speaking of the rights of the respective lien claimants, we said: “It may be said that such construction of section 2032 defeats the intent and purpose of section 2036. The latter section provides that all labor and material, without reference to the time when furnished or date of filing notice and claim of lien, shall be on an equal footing, and, if upon a sale of property enough is not realized to pay all lien claimants in full, they shall prorate. On the contrary, the construction we have given section 2032 will preserve and effectuate, in a large measure, the meaning of section 2036, especially when the building, structure, or improvement has been made under a general contract. In such case their liens are upon an equal footing, regardless of the date of filing lien or the date of performing work or furnishing material. The one who furnishes the last item of material or does the last work on the building, structure, or improvement is in just as good shape as the one who did the first work or furnished the first material. Their right of lien relates to the same date. No lien, mortgage, or other incumbrance can intervene between the liens when the claimants’ rights relate to and originate in a contract between the owner and contractor. “If, however, the labor is performed or the material furnished directly to and upon the credit of the owner, mortgage liens and other incumbrances may attach to the property between the dates that their rights to their liens accrue, and thereby defeat the equality provided for in section 2036. This loss of equality, however, is in a measure compensated by the personal liability of the owner for the labor and materials, which does not exist when the labor or material is furnished the contractor.” In the instant case the materials were furnished to the contractor, therefore, all the rights of the materialmen, including Ray Lumber, relate back to a date prior to October 30, 1963. This is the same conclusion reached by the Court of Appeals, but upon different grounds. The third question relating to the method of establishing the amount of a materialmens lien must be determined from the intent of the Legislature. In Wylie v. Douglas Lumber Co., supra, we stated: “We are, however, convinced that our Legislature intended that laborers and material-men, who contribute of their labor and means to enhance the value of the property of another, should be jealously protected.” In Kerr-McGee Oil Industries, Inc. v. McCray, 89 Ariz. 307, 361 P.2d 734, we said: “The Arizona Lien Statutes are remedial and to be liberally construed.” And in Leeson v. Bartol, supra, this court said: “Their purpose is that laborers and materialmen enhancing the value of another’s property should be protected.” (emphasis in original). In Blake v. Crystaline Lime Co., 37 Idaho 637, 221 P. 1100 mod. on rehearing, 37 Idaho 643, the Supreme Court of Idaho in explaining the theory of the'Materialmens Lien Law said: “The very foundation of a lien claim under our statute is the performance of labor upon or the furnishing of materials for the construction or improvement of the property upon which the lien is claimed. The theory upon which a lien is given as a prior claim upon the property is that the party claiming the lien has, either by his labor or by the materials furnished, contributed to the construction or improvement of the property upon which the lien is claimed.” Any other theory in regard to establishing the amount of materialmens lien would lead to untold difficulties, particularly in that it might not prove the value of the materials which went into the building. Materials could be delivered at a site for construction but never put into a build ing. Some could be stolen and others could be diverted to other projects in which a contractor was building for a third party. It departs from the equitable principle of giving a man a lien for the actual labor or materials which he places into a building thereby enhancing the value of another’s property. The value of labor and material furnished should not be difficult to establish. As stated by the trial court in its findings of fact in regard to Materialman Metropolitan: “This claimant did not attempt to establish the materials furnished for each apartment building, although it could have since its practice was to do so where tract homes were being built.” The same would be true as to the other materialmen. The difficulty arises from the fact that the case was tried upon the theory of one project which included the apportionment theory. The record does not show the materials, and the value thereof, furnished in the construction of the individual units. The architect was undoubtedly inspecting the buildings during the construction as well as making a final inspection after completion in order to determine whether it was being built in accordance with his plans and specifications, and whether the materials furnished as provided for in the plans were incorporated therein. However there was no evidence of the reasonable value of such materials by the testimony of those who furnished the materials, the architect or builder, or any other person, or persons, with knowledge of the construction. That part of the decision of the Court of Appeals which is inconsistent with this decision is vacated. The part of the trial court’s judgment which is inconsistent with the decision is reversed. The matter is remanded to the trial court for further proceedings not inconsistent with this decision. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and HAYS, JJ., concur.

McFarland, Justice. Michael Parker — hereinafter referred to as defendant — was tried and convicted on two counts of child molesting of two sisters — the first count was molesting a girl twelve years of age — hereinafter designated as girl one; the second count on a girl nine years of age — hereinafter designated as girl two; and was sentenced to serve a term of three and a half to ten years in the Arizona State Penitentiary on each count, to run concurrently. From his conviction and sentence he appeals. The defendant was originally charged with committing rape on the person of another sister, a 16-year-old mentally retarded girl — hereinafter designated as girl three, together with child molesting on girl one and girl two. Before the commencement of the trial the court dismissed the charge of rape on a motion of the county attorney, and defendant was tried on the amended complaint charging two counts of child molesting. The stepfather, Del-Mar Anderson, testified that he had been married to the mother of the children since 1965; that on the 16th day of July 1968 he was working at the Maleo Service Station at 16th Street and Roma, Phoenix; that he was called on a service call to start a car outside the “Branding Iron” on Indian School Road, where he met defendant, Michael Parker, at approximately 2:15 p. m.; that they had been fairly good friends; and defendant asked “ * * * if he could pick up the kids and take them over to his swimming pool again. Pie said he was going to pick up his wife and I said it was okay if he wanted to pick them up.” He testified that defendant left shortly thereafter. He also testified that the children had previously gone swimming at defendant’s home, which was located on Oregon Avenue. The girls, one and two, both testified that while they were in the swimming pool the defendant molested them. Girl one, who was thirteen years of age at the time of the trial, was examined on voir dire by the court and counsel. She explained the difference between the truth and a lie, and said that she knew she would be punished for telling a lie. She testified that while they were swimming the defendant put his “ * * * hand on my breasts with his right hand — left hand, and his right hand up the leg of my pants, my bathing suit.” Girl two, when she was questioned on voir dire by the court and counsel, stated that one would be punished and confined for telling a lie, and that she could remember back and would tell the truth. She testified as to similar actions while defendant was teaching her to float, at which time he touched her “sex” area. The victims’ brother, hereinafter designated as the brother, who was eleven years old at the time of the trial, was questioned on voir dire by the court and by counsel. He said he understood what it is to tell the truth and to tell a lie, and that the oath means that one telling a lie would be punished. He testified that he had seen defendant with his sister, girl three (the mentally retarded girl who was sixteen years of age), in the swimming pool; that defendant had his shorts down to his knees; that she had her legs around him; and that his other two sisters were in the pool at the time. His testimony was not clear as to the exact time this occurred — as to whether it was on the same day or on a prior day. The first question presented pertains to the competency of the three children to testify. This Court has held that it is within the discretion of a trial judge to determine the competency of a child testifying, and that the exercise of that discretion will not be reversed unless there is a clear abuse of this discretion. State v. Goldsmith, 104 Ariz. 226, 450 P.2d 684; State v. Phillips, 102 Ariz. 377, 430 P.2d 139; State v. Berry, 101 Ariz. 310, 419 P.2d 337; Davis v. Weber, 93 Ariz. 312, 380 P. 2d 608; State v. Dominguez, 87 Ariz. 149, 348 P.2d 919; State v. Haston, 64 Ariz. 72, 166 P.2d 141; Keefe v. State, 50 Ariz. 293, 72 P.2d 425; Sheek v. State, 19 Ariz. 509, 172 P. 662. The defendant, in his brief, contends that there were contradictions in testimony of the witnesses, and that the brother’s testimony was hazy. This would go to the weight to be given the testimony, and not to the competency. All three of the children, on voir dire examination, stated they understood the difference between the truth and a lie and that they would be punished if they told a lie. We find no abuse of the court’s discretion in admitting their testimony. The next contention of defendant is that the court erred in permitting the testimony of the brother concerning the alleged prior incident with his retarded sister, girl three. Defendant contends that the admission of the testimony was not proper, stating that it had no connection with the crime for which the defendant was being tried; that it pertained to the crime of rape which had been dismissed. We have held, in Taylor v. State, 55 Ariz. 13, 97 P.2d 543, that: “ * * * There is no question but that the general rule is 'that, in the prosecution of one accused of a particular offense, evidence showing or tending to show the commission by accused of another crime entirely distinct and independent of that for which he is on trial, even though it be a crime of the same class, is neither relevant nor admissible.’ Dorsey v. State, 25 Ariz. 139, 213 P. 1011, 1012. * * *” However, we held also in the Taylor case that: “ * * * there are several exceptions to this rule and one of them is those cases in which the evidence of similar offenses tends to show a system, plan or scheme embracing the commission of two or more crimes so related to each other that the proof of one tends to establish the other, Vigil v. State, 33 Ariz. 51, 262 P. 14; Cummings v. State, 20 Ariz. 176, 178 P. 776, and the state contends that the facts of this case bring it clearly within this exception. It occurs to us that this position is sound, for in the case of rape, either statutory or forcible, evidence of similar offenses which shows that in the commission of the offense the accused used a system or plan, tends just as much to establish the act charged, as does the evidence of similar acts in the case of any other crime. * * * ” In later cases we have discussed the rule of specific emotional propensity. State v. McDaniel, 80 Ariz. 381, 298 P.2d 798; State v. Finley, 85 Ariz. 327, 338 P.2d 790. In State v. Gibson, 103 Ariz. 428, 443 P.2d 424, we held that: " * * * Any language in the Finley case implying that prior unrelated criminal acts might be shown to establish criminal propensity is specifically disapproved.” In State v. Goldsmith, supra, we held: “While in both cases we talked about emotional propensity, it was coupled with the rule of law stated in Taylor v. State, supra, which provided that prior acts must tend to show 'a system, plan or scheme embracing the commission of two or more crimes so related to each other that the proof of one tends to establish the other.’ We recognize this principle now. Plowever, any acts to be admissi ble must tend to establish such ‘a system, plan or scheme.’ Also, they would have to be presented at the proper place in the trial. However, they were not introduced for this purpose in the instant •case. The question of ‘a system, plan or scheme’ would have to be determined by the trial court at the time it was offered in evidence by the State in its case-in-chief.” Under this holding, the question in the instant case is whether there was a “system, plan or scheme.” The rule as set forth in Taylor, supra, is applicable to the child-molesting charges. The question then is whether the evidence of the other act in the instant case comes within this •exception. The evidence shows that the defendant had on previous occasions invited the same children to go swimming in his pool, which showed his system, plan and scheme to get the children to a place where he could perform such acts. The admission of the evidence of the prior act was for the purpose of showing that he had previously, in the swimming pool, performed similar acts on the sister who was a retarded minor of the age of sixteen. There was a similarity in the acts testified to by the brother and those performed on the sisters, girls one and two. Defendant offered no evidence to contradict that of the State on either of his contentions, relying upon his contention that the evidence in each instance was inadmissible. We hold the court did not err in the admission of the testimony. Judgment affirmed. STRUCKMEYER, V. C. J., and UDALL, J., concur.

STRUCKMEYER, Vice Chief Justice. Appellant, Roy Lynn Rogers, was charged by the State of Arizona as being a fugitive from justice from the State of Washington. After the Governor issued his warrant on extradition, Rogers applied to the Superior Court for a writ of habeas corpus. The Superior Court denied Rogers’ petition and this appeal followed presenting four grounds of asserted error. Appellant first questions whether the requisition papers from the State of Washington are sufficient. It is not clear from appellant’s brief in what way the requisition papers are insufficient. In the lower court he asserted that the papers failed to include an affidavit before a magistrate. If we assume this is the point appellant is now asserting, he has apparently overlooked the affidavit of Patrick Olwell, Deputy Prosecuting Attorney, subscribed and sworn to before a Judge of the Superior Court of the State of Washington, Yakima Comity, the 20th day of February 1968. Appellant asserts as his second and third points for reversal that there was no showing he was in the State of Washington at the time of the commission of the offense, and that there was no showing he is the same Roy Lynn Rogers sought by the State of Washington. We find no merit to these positions. There was evidence presented to the lower court which has not been made available to this Court by way of transcript of the proceedings or testimony. Accordingly, we must assume that the evidence was sufficient to support the lower court’s judgment. Finally, appellant questions whether the documents on extradition show on their face that appellant committed a crime against the State of Washington. Our statute A.R.S. § 13-1305, subsec. 3 only requires that a fugitive from justice be lawfully charged with having committed a crime under the laws of another state. Appellant is charged with Grand Larceny. The sufficiency of the information charging the offense must be tested in the demanding state. Pierce v. Creecy, 210 U.S. 387, 28 S.Ct. 714, 52 L.Ed. 1113; Ex parte Rubens, 73 Ariz. 101, 238 P.2d 402, cert. den. 344 U.S. 840, 73 S.Ct. 50, 97 L.Ed. 653; cf. Application of Oppenheimer, 95 Ariz. 292, 389 P.2d 696, cert. den. 377 U.S. 948, 84 S.Ct. 1359, 12 L.Ed.2d 311. LOCKWOOD, C. J., and UDALL, McFARLAND, and HAYS, JJ., concur.

UDALL, Justice: This case is before us on a petition by Mountain States Telephone Company for review of a decision of the Court of Appeals, 12 Ariz.App. 145, 468 P.2d 596 (1970), which set aside an Award of the Industrial Commission of Arizona denying compensation to the claimant, Elva Alice Royall. The Commission found that the injury sustained by the claimant occurred “during the course of” her employment, but that the accident did not “arise out of” her employment, and that the claim was therefore noncompensable. The Court of Appeals held that the injury did “arise out of” claimant’s employment and accordingly set aside the Award of the Industrial Commission. We granted the petition for review and we accordingly vacate the decision of the Court of Appeals. For the reasons advanced below, we set aside the Award of noncompensability by the Industrial Commission. Claimant Royall was employed by petitioner Mountain States Telephone Company as a telephone operator in petitioner’s building at Adams Street and First Avenue in downtown Phoenix. Her shift began at 5:00 p. m. and ended at 11:00 p. m.; at 8:00 each evening she took a thirty-minute lunch break. She was compensated for this time, which the employer considered to be a combination of two 15-minute coffee breaks. Claimant was not restricted to the employer’s premises during her break; however, she had established the custom of having coffee in the employer’s cafetorium during this time. She was not aware of any restaurants in that area of downtown Phoenix which were open at 8:00 in the evening, and the fact that she had only thirty minutes precluded her from going outside the area. On the evening of April 17, 1968, claimant entered an employees’ lounge on the premises during her lunch break in order to make a personal telephone call. She was walking toward the telephone when she tripped over the legs of a person sitting on a couch, fell to the floor, and suffered the injury which is the basis of her claim. An employee is covered by our Workmen’s Compensation Act if he is injured by an accident “arising out of and in the course of” his employment. A.R.S. § 23-1021. In the instant case, the Industrial Commission found that claimant Royall “sustained injury by accident during the course of her employment”, but that “said accident did not arise out of claimant’s employment and it is therefore noncompensable.” The issue before this Court, therefore, is whether the accident was one both “arising out of” and “in the course of” claimant’s employment so as to be within the coverage of the Act. Any attempt to determine whether a particular injury arises out of and in the course of employment should be made only by a judging body which is constantly aware of the basic concept of the nature and philosophy behind workmen’s compensation. In Whitington v. Industrial Commission, 105 Ariz. 567 at 569, 468 P.2d 926 at 928 (1970), we stated that: “It is universally understood that the purpose of the workmen’s compensation laws is to spread the risk of injury inherent in a job, over the whole industry so that the cost of medical attention and loss of wages will be passed on by inclusion in the price of the product or service being sold by the employer, instead of having to be borne by the unfortunate individual who suffers the injury. This is a sound basis for such laws.” This Court, from the inception of the Workmen’s Compensation Act in this state, when called upon to interpret its terms, has consistently recognized that the act is remedial in nature and that its terms “should be given a liberal construction, with a view of effectuating their evident purpose of placing the burden of injury and death upon industry.” Ocean Accident and Guarantee Corp. v. Industrial Commission, 32 Ariz. 265 at 272, 257 P. 641 at 643 (1927). As to what is meant by the term “liberal construction” within the context of the Workmen’s Compensation Act, ihis Court stated in Nicholson v. Industrial Commission, 76 Ariz. 105, 259 P.2d 547 (1953), that: “A liberal construction is not synonymous with a generous interpretation. To interpret liberally envisions an approach with an open and broad mind not circumscribed by strictures or predilection, whereas a generous interpretation suggests freehandedness * * * largess. It is not in the power of this court to ‘give’ but it definitely is its duty to interpret the law to insure that what the law gives is not withheld.” 76 Ariz. at 109, 259 P.2d at 549. With these observations in mind we will proceed to consider what we believe the law to be as applicable to the facts in the case before us. We must first define the meaning and scope of the terms “arising out of” and “in the course of”, and then we must compare and contrast the elements or factors involved in each term so as to understand each individually and in its relationship to the other. Only in this way can we be properly prepared to deal with the issue of whether the injury in the case at bar was one “arising out of and in the course of” claimant’s employment so as to fall within the coverage of the Workmen’s Compensation Act. As is stated at 1 Larson, The Law of Workmen’s Compensation, § 6.10: “The heart of every compensation act, and the source of most litigation in the compensation field, is the coverage formula. Forty-one states [including Arizona] have adopted * * * the formula: injury ‘arising out of and in the course of employment.’ * * * “Few groups of statutory words in the history of law have had to bear the weight of such a mountain of interpretation as has been heaped upon this slender foundation. It is not surprising, then, that to make the task of construction easier, the phrase was broken in half * * * [and] each test [was] independently applied and met." In the interest of brevity, where appropriate we will refer to these tests simply as the “arising” and “course” tests. A compensable injury must both “arise out of” the employment, and be sustained “in the course of” the employment. The first term refers to the origin or cause of the injury, the second to the time, place, and circumstances of the accident in relation to the employment. Gaumer v. Industrial Commission, 94 Ariz. 195, 382 P.2d 673 (1963). An injury which occurs in the course of employment will ordinarily, but not necessarily, arise out of it, while an injury arising out of employment almost necessarily occurs in the Course of it. Peter Kiewit Sons’ Co. v. Industrial Commission, 88 Ariz. 164, 354 P.2d 28 (1960). This Court has discussed the terms “arising out of” and “in the course of” in a number of cases, one of the most recent of which is City of Phoenix v. Industrial Commission, 104 Ariz. 120, 449 P.2d 291 (1969). In that case we quoted at length from McCampbell v. Benevolent & Protective Order of Elks, 71 Ariz. 244, 226 P.2d 147 (1950), which defines the above terms as follows: “An injury or accident occurs in the course of his employment if the employee is injured while he is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time. ‘The words “in the course of” refers [sic] to the time, place, and circumstances under which it occurred.’ Goodyear Aircraft Corp., [Ariz. Division] v. Gilbert, [65 Ariz. 379, 181 P.2d [624] 626] supra; Thomas v. Industrial Commission, 54 Ariz. 420, 96 P.2d 407. “We believe a fair interpretation of the term ‘arising out of’ to be that the cause producing the accident must flow from a source within the employment. That source must have its situs in some risk inherent in the employment or incidental to the discharge of the duties thereof. In other words there must be some causal relation between the employment and the ‘ injury. * * *” 71 Ariz. at 251, 226 P.2d at 151. Each case must be decided on its individual facts, and within the framework of the definitions set forth above. There is no “rule of thumb” that an injury is compensable merely because it was incurred during working hours or because it occurred within the linear measurements of the employer’s premises. City of Phoenix v. Industrial Commission, supra, 104 Ariz. at 124, 449 P.2d at 294. As mentioned above and as will be illustrated hereafter, the “course” and “arising” tests involve different elements or factors — in general, time, place, and circumstances for the one and causation for the other. These factors must be analyzed separately, and their individual strengths and weaknesses noted. However, in determining whether the necessary degree or quantum of “work-connection” is established to bring the claimant under the coverage of the Act, it is also necessary to consider them together. See, in general, 1 Larson, The Law of Workmen’s Compensation, § 29. The type of activity which most clearly satisfies the .“course” test is the active performance by the employee of the specific duties which he was engaged to perform. A “weaker” class of activity— that is, which does not so clearly meet the “course” test or may fail to meet it altogether — includes those activities which are only incidental to the performance of the employee’s duties, such as seeking personal comfort, going to and coming from work, engaging in recreation, and the like. Some of the activities of the latter type have been held to fall completely short of satisfying the “course” test. For example, in this jurisdiction, if at the time of an accident an employee is on his way to work or is on his way home from work with no duty to perform for his employer, the “going and coming” rule applies and the injury is noncompensable as being not within the course of employment. See, e. g., McCampbell v. Benevolent & Protective Order of Elks, supra, 71 Ariz. at 254, 226 P.2d at 153; City of Phoenix v. Industrial Commission, supra, 104 Ariz. at 124, 449 P.2d at 294. As to the “causation” test, the type of accident which most clearly satisfies its requirements is one in which the source of the injury is distinctly associated with the employment, such as machinery breaking, objects falling, dynamite exploding, etc. The weakest type, on the other hand, exists where the source of injury or the cause of death relates to risks personal to the claimant which are in no way work-connected, such as a heart attack entirely attributable to a preexisting heart condition or a death from natural causes. In between these two types — the strongest and the weakest — fall those cases where the source of the injury is neither distinctly associated with the employment nor personal to the claimant, such as being hit by a stray bullet or being struck by lightning. Which of the situations falling within this middle category are considered to meet the “arising” test and which are not must of course be determined on a case-by-case basis, keeping in mind the purposes and intent of the Workmen’s Compensation Act in the particular jurisdiction. An examination of Arizona cases involving this area of subject matter reveals a pattern consistent with the principles stated above. For example, in Goodyear Aircraft Corp. v. Industrial Commission, 62 Ariz. 398, 158 P.2d 511 (1945), the claimant was a watchman who was injured by a pop bottle which exploded as he was preparing to lower it into a water cooler. The water cooler was provided by the employer and the cooling of soft drinks in it was with the knowledge and consent of the employer. The conditions of employment made it necessary for the guard to bring the bottle of pop to work with him and leave it in the seat of his car until he could return for it. On the day of the accident, which was during the hottest part of the summer, he picked up the bottle in midafternoon and took it inside to the water cooler, where the accident occured. The “course” factor consisted of an activity — preparing food for consumption— which was only incidental to the specific duties required by the employment but which was done during working hours and on the premises. The “causation” factor consisted of a risk “to which he was subjected in the course of his employment, and to which he would not have been subjected had he not been so employed.” 62 Ariz. at 416, 158 P.2d at 518. The factors of time, place, and circumstance were sufficiently strong to meet the “course” test; the causation factor was sufficiently strong to meet the “arising” test. Claimant was understandably held to fall within the coverage of the Act. In Nicholson v. Industrial Commission, supra, 76 Ariz. at 105, 259 P.2d at 547, the claim was by a woman whose husband was killed by the collapse of a loading platform under which he was eating lunch. He and others were there with the knowledge and consent of the employer, as it was the only shade in the desert area in which they were working. The “course” elements consisted of activities by the employee — eating lunch and winding up his affairs (the operation had been shut down until the following day) —which were only incidental to his main duties. However, the “arising” factor was unusually strong, as the cause or source of the injury related to a risk distinctly associated with the employment — the collapse of the loading platform. The employee was clearly within the coverage of the Act. Applying the same type of analysis to the case at bar, we see the following: Claimant Royall was injured in an employees’ lounge on the employer's premises during her paid lunch break. She was walking toward a telephone provided for the use of the employees by the employer telephone company when she tripped over the legs of another person, presumably a co-employee, sitting on a couch. She fell to the floor and suffered the injury which is the basis of her claim. As was stated above, in order to determine whether the accident was in the course of claimant’s employment, we must look primarily to the factors of time, place, and circumstance; to determine whether it arose out of claimant’s employment, we must look primarily to the factor of causation. As to the time factor, the accident occurred during a thirty-minute paid lunch break which the employer considered to be the same as two coffee breaks. (Claimant worked from S :00 to 11:00 each evening; her' break was from 8:00 to 8:30.) As to the place factor, the accident occurred in an employees’ lounge on the employer’s premises while the claimant was walking toward a phone provided by the employer telephone company for the use of the employees. As to the circumstance factor, the claimant had established the custom of having coffee in the employer’s cafetorium during her break. She was not aware of any restaurants in that area of downtown Phoenix which were open at 8:00 in the evening, and the fact that she had only thirty minutes precluded her from going outside the area. We are of the opinion that the time, place, and circumstance factors are more than adequate to meet the “course” test and accordingly hold that claimant Royall was in the course of her employment at the time of the accident. In considering whether claimant’s accident arose out of her employment, we must look to the factor of causation. Claimant Royall tripped over the legs of a person, presumably a co-employee, who was sitting on a couch in the employees’ lounge. Under the particular circumstances of this case, we are of the opinion that the source of injury was sufficiently associated with the employment as to constitute a risk to which claimant was subjected in the course of her employment, and to which she would not have been subjected had she not been so employed. We therefore hold that the accident was one arising out of claimant’s employment. Inasmuch as claimant Royall’s accident was one “arising out of and in the course of” her employment, A.R.S. § 23-1021, it is within the coverage of the Workmen’s Compensation Act. The Award of noncompensability by the Industrial Commission is accordingly set aside. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and McFARLAND and HAYS, JJ., concur. . This case was decided under the law as it existed prior to January 1,1969.

OPINION HOWARD, Judge. This appeal arises from the trial court’s granting of appellee’s motion to dismiss Counts III, IV and V of appellant’s complaint. Briefly, the complaint shows that on August 11, 1977, at approximately 9:20 p. m., appellant, a Mexican citizen, tried to board a Southern Pacific freight train as it was passing through Picacho, Arizona. Four employees of appellee Southern Pacific Transportation Company (Southern), caused a “jerking or bumping” of the train cars when appellant attempted to board it, causing him to fall under the wheels of the train. Appellant’s left arm was severed, his left leg was broken, and he suffered other serious wounds which were open and bleeding. Appellant’s complaint states five claims for relief. The first alleges intentional infliction of injury and the second, wanton and reckless infliction of injury. Claims three, four and five are, respectively: Interference with a savior, failure to render aid and failure to call for medical assistance or report the injury. The trial court granted appellee’s motion to dismiss Counts III, IV and V and appellant has timely appealed. We reverse for the following reasons. DID APPELLANT ESTABLISH A CLAIM FOR FAILURE TO RENDER ASSISTANCE? Appellant claims that the court erred in dismissing Count IV, his claim for failure to render assistance. When reviewing a motion to dismiss for failure to state a claim, we presume that the facts alleged in the complaint are true. Savard v. Selby, 19 Ariz.App. 514, 508 P.2d 773 (1973). The test to be applied in resolving whether the complaint established that appellant is entitled to relief under any theory of law is whether the complaint, taken in the light most favorable to appellant, is sufficient to constitute a valid claim. Savard v. Selby, supra; Veach v. City of Phoenix, 102 Ariz. 195,427 P.2d 335 (1967). Motions to dismiss for failure to state a claim are not favored under Arizona law. Folk v. City of Phoenix, 27 Ariz.App. 146, 551 P.2d 595 (1976). In order to establish a claim in tort, appellant must show the existence of a duty and a breach thereof. Wilson v. City of Tucson, 8 Ariz.App. 398, 446 P.2d 504 (1968). Furthermore, the complaint must allege that the breach of such duty was the proximate cause of the injuries sustained and that appellant was in fact damaged. Curlender v. Bio-Science Laboratories, 106 Cal. App.3d 811, 165 Cal.Rptr. 477 (1980); Restatement (Second) of Torts, Sec. 328(A). Appellant’s fourth claim for relief first alleges that the employees caused the train to “bump or jerk” while he was trying to board it. It then states: “II. Defendants SOUTHERN PACIFIC COMPANY AND SOUTHERN PACIFIC TRANSPORTATION COMPANY and their agents and employees had affirmative duties with respect to the operations of their trains and the control of their right of way, which duties it owed to all persons and to plaintiff in particular, as follows: 1. A duty to render aid to any person who is injured by SOUTHERN PACIFIC trains or who was injured on SOUTHERN PACIFIC’S right of way. 2. A duty to render aid to any person who is injured and lying helpless and disabled on SOUTHERN PACIFIC’S right of way. 3. A duty to respond to and render assistance to an injured and disabled person on the SOUTHERN PACIFIC right of way who is calling to SOUTHERN PACIFIC employees for help. III. That after plaintiff, SALVADOR MALDONADO, was severely injured by the aforesaid train and as he lay on the SOUTHERN PACIFIC right of way, in a helpless condition with his left leg severely injured and his left arm severed from his body, and with the defendants’ knowing that he was severely injured, the defendants disregarded his calls for help. As the caboose of said train went slowly by the plaintiff, he called for help to DOES I and II who were standing on the platform of said caboose, but said employees of SOUTHERN PACIFIC COMPANY and SOUTHERN PACIFIC TRANSPORTATION did nothing to help and the defendants continued past the plaintiff without rendering assistance as he lay helpless on the ground. * * * * * * VI. That the acts and omissions of the defendants in refusing to assist the plaintiff and refusing to respond to his pleas for help as he lay severely disabled and bleeding on the SOUTHERN PACIFIC right of way beside the SOUTHERN PACIFIC track after having been injured by the SOUTHERN PACIFIC train, constitutes extreme and outrageous, malicious, reckless and depraved conduct by the said agents, employees and servants of SOUTHERN PACIFIC COMPANY and SOUTHERN PACIFIC TRANSPORTATION COMPANY. VII. That as a direct and proximate result of the extreme, outrageous, intentional, reckless, malicious and depraved conduct of the defendants as aforesaid, the plaintiff suffered severe emotional distress, fear and anxiety because he felt that his only hope for survival refused to render him assistance.... ” The precise question we must answer is whether Southern did in fact owe appellant a duty to render aid after he was seriously injured by the train. As there is no prior Arizona case law to the contrary, we will follow the position taken by the Restatement (Second) of Torts, Sec. 322. Barnum v. Rural Fire Protection Company, 24 Ariz. App. 233, 537 P.2d 618 (1975). Section 322 states: “If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him help less and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.” The Comment to this section further clarifies the existence of a separate and distinct duty to render assistance to appellant. It provides: “a. The rule stated in this Section applies not only where the actor’s original conduct is tortious, but also where it is entirely innocent. If his act, or an instrumentality within his control, has inflicted upon another such harm that the other is helpless and in danger, and a reasonable man would recognize the necessity of aiding or protecting him to avert further harm, the actor is under a duty to take such action even though he may not have been originally at fault. This is true even though the contributory negligence of the person injured would disable him from maintaining any action for the original harm resulting from the actor’s original conduct. b. The words ‘further harm’ include not only an entirely new harm due to the dangerous position in which the other has been placed by the actor’s tortious act ... but also any increase in the original harm caused by the failure to give assistance ... and any protraction of the harm which prompt attention would have prevented .... (illustrations omitted) c. Where the original conduct is tortious, the duty stated in this Section frequently is unnecessary to the existence of liability for the further harm, since the connection between the original wrongdoing and the further harm is usually such as to make the actor’s conduct in law the cause of such harm. However, a failure to perform the duty here stated creates liability even though the actor’s original misconduct is not the legal cause of the further harm. d. Effect of other’s contributory negligence. (emphasis in original) The liability which this Section recognizes is not imposed as a penalty for the actor’s original misconduct, but for a breach of a separate duty to aid and protect the other after his helpless condition caused by the actor’s misconduct is or should be known. It is therefore immaterial that the accident which rendered the other helpless to care for himself was caused by his own contributory negligence as well as by the actor’s misconduct, so that he cannot recover for the original injury, nor, apart from the duty stated in this Section, for any further harm which he suffers in consequence of it, although the actor’s tortious conduct was undoubtedly the legal cause thereof.” (emphasis added) It is clear that a separate duty to render aid exists regardless of whether appellee’s original misconduct was intentional or innocent or whether it was the legal cause of any further harm suffered. A case similar to the one at bar is Tubbs v. Argus, 140 Ind.App. 695, 225 N.E.2d 841 (1967). In Tubbs, the appellant was traveling as a guest in appellee’s automobile when she was injured. Appellee abandoned the car and did not render reasonable aid or assistance to the injured appellant. Appellant’s amended complaint, alleging that she suffered additional injuries as a result of appellee’s failure to render aid, was dismissed by the trial court. On appeal, the court reversed the judgment and stated as follows: “At common law, there is no general duty to aid a person who is in peril, (citations omitted) However, in L. S. Ayres & Company [v. Hicks] supra, [220 Ind. 86] page 94, 40 N.E.2d [334] page 337, the Supreme Court of Indiana held that ‘under some circumstances, moral and humanitarian considerations may require one to render assistance to another who has been injured, even though the injury was not due to negligence on his part and may have been caused by the negligence of the injured person. Failure to render assistance in such a situation may constitute actionable negligence if the injury is aggravated through lack of due care.’ (citations omitted)” 225 N.E.2d at 842. Relying on the Restatement (Second) of Torts, Sec. 322, the court concluded: “... It is the opinion of this Court that an affirmative duty to render reasonable aid and assistance is not limited to those cases involving the flow of an economic advantage to the alleged defendant..... it is the opinion of the Court that the case at bar presents a situation in which an affirmative duty arises to render reasonable aid and assistance to one who is helpless and in a situation of peril, when the injury resulted from use of an instrumentality under the control of the defendant.” (emphasis added) 225 N.E.2d at 843. We agree with the reasoning in Tubbs. In the case at bar, appellant received his injuries from an instrumentality under appellee’s control. Under the Restatement rule and Tubbs, this is sufficient to impose a duty to render reasonable aid and assistance; a duty for the breach of which appellee is liable for additional injuries suffered. Appellee argues in its brief that even if it had a duty to render aid, recovery should be denied because its failure to aid appellant was not the proximate cause of his injuries. It bases its argument on the fact that there were others who were available to render aid and did so. We do not agree. This was not a motion for summary judgment nor was it treated by the court and the parties as such. It was a motion to dismiss for failure to state a claim. The allegations in the complaint are sufficient to establish a claim for relief. Not only do these allegations state a claim for relief under Sec. 322 of the Restatement (Second) of Torts, they also state a claim under the Restatement (Second) of Torts, Sec. 46, for intentional infliction of emotional distress. See Cluff v. Farmers Insurance Exchange, 10 Ariz.App. 560, 460 P.2d 666 (1969); Continental Life & Acc. Co. v. Songer, 124 Ariz. 294, 603 P.2d 921 (App.1979). Accordingly, we hold that the trial court erred in dismissing Count IV of appellant’s complaint. THE CLAIM FOR INTERFERENCE WITH A SAVIOR Appellant’s third count is for intentional interference with a savior. The complaint states in pertinent part: “II. The defendants in addition to the duties previously alleged, also had additional affirmative duties with respect to the operations of their trains and the control of their right of way, which duties it owed to all persons and to the plaintiff in particular, as follows: 1. A duty not to intentionally attempt to interfere with efforts by third persons to come to the aid of a seriously injured person on the Railroad right of way. 2. A duty not to recklessly, wilfully or wantonly interfere with efforts by third persons to come to the aid of a seriously injured person on the Railroad’s right of way. 3. A duty not to interfere with a savior who is the only hope of survival for an injured and helpless person on the Railroad’s right of way after the Railroad’s employees have refused to render aid or assist the injured and helpless person. III. That after the defendants had severely injured SALVADOR MALDONADO and he was lying helpless on the defendants’ SOUTHERN PACIFIC’S right of way next to the SOUTHERN PACIFIC track, three persons who heard him screaming came to him to try and help him and render aid. When the three persons arrived at SALVADOR MALDONADO’S side, his left arm was severed from his body, his left leg and knee were severely injured and he was bleeding from his wounds. DOES I and II, knowing that SALVADOR MALDONADO was seriously injured, helpless and in need of immediate assistance in order to save his life, yelled at the three persons who had arrived to give assistance in an effort to keep the plaintiff from obtaining necessary aid. Although the three persons who came to save SALVADOR MALDONADO’S life were distracted and delayed by the attempts of the defendant Railroad’s employees to keep them away from the plaintiff, the said saviors disregarded the efforts of the defendant Railroad’s employees because they knew SALVADOR MALDONADO was in need of immediate aid and would probably die without such aid. Defendants SOUTH ERN PACIFIC COMPANY, SOUTHERN PACIFIC TRANSPORTATION COMPANY and DOES I and II, recklessly, wilfully, wantonly and intentionally interfered with, delayed, distracted and attempted to further interfere with efforts of persons who had come to the aid of SALVADOR MALDONADO and who were attempting to save his life. IV. That as a direct and proximate result of the defendants’ reckless, wilful, wanton and intentional interference with the saviors, the plaintiff SALVADOR MALDONADO experienced additional physical pain and suffering and additional shock, anxiety, distress, fear and loss of blood for which SALVADOR MALDONADO is entitled to compensatory damages .... ” Whether an actor has a duty not to intentionally interfere with the aid that a. third party is rendering to a person in peril is also a question which has never been addressed by our courts. We turn to the Restatement (Second) of Torts, Sec. 326 for guidance, which states: “One who intentionally prevents a third person from giving to another aid necessary to prevent physical harm to him, is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third person from giving.” (Emphasis added) The scope note to this section gives examples of the ways in which one can prevent a third person from rendering assistance. It provides: “The actor can prevent a third person from rendering aid to another in many ways including the following: first, by so injuring the third person as to make him incapable of giving aid; second, by interfering with his efforts to give aid; third, by injuring or destroying the usefulness of a thing which the third person is using to give aid or by otherwise preventing him from using it; fourth, by obstructing the third person’s access to the other.” (Emphasis added) We have examined the case law in this area and are unable to find that the complaint alleges a prevention of the rendering of aid. The most the count alleges is an attempt to prevent the rendering of aid. THE CLAIM BASED ON APPELLEE’S FAILURE TO CALL FOR MEDICAL HELP OR TO REPORT THE INJURY Appellant’s final claim is that the court erred in dismissing Count V of his complaint requesting relief for failure and refusal to call for medical assistance or report the accident. He claims that appellee was under both a statutory and a common law duty to report the accident. Appellant’s complaint alleges in pertinent part: “That the defendants recklessly, wilfully, wantonly and intentionally failed and refused to call for medical assistance for the plaintiff or to report plaintiff’s serious injury to the proper authorities after the defendants knew that they had inflicted serious and disabling injuries on the plaintiff and that the plaintiff was lying helpless and bleeding with his arm severed on the defendant Railroad’s right of way.” It further alleges that appellant suffered a delay in obtaining medical assistance and services which resulted in additional pain and suffering, injury, loss of blood, shock, anxiety, fear, mental distress and disability. A.R.S. Sec. 40-338 gives the Arizona Corporation Commission the power to investigate the cause of all accidents upon the property of any public service corporation, arising directly or indirectly from its maintenance or operation, resulting in loss of life or injury to persons or property. Paragraph B requires every public service corporation to file a report of each accident with the commission. Pursuant to the authority granted by the statute, the commission enacted the following regulation: “D. Reports by telephone 1. Railroads shall give the Commission immediate telephone notification of the following classes of accidents: a. Accidents resulting in death; b. Accidents resulting in injury requiring immediate hospitalization; c. Accidents resulting in damage to railroad property in excess of $1,750 dollars; d. Accidents in which explosives, flammable liquids, compressed gases, corrosives, poisons, or radioactive materials are involved. 2. The immediate telephone notification shall include but not be limited to the following: a. Name of person making the telephone report; b. Name of railroad or railroads involved; c. Location of accident; d. Number of fatalities; e. Number of injuries; f. Number of derailed cars; g. Generic name or names of the hazardous materials involved, including the name, address, and the telephone number of the shipper.” R14-5-406 (emphasis added) A.R.S. Sec. 40-423(A) makes public service corporations liable to persons injured if the corporation “does or permits to be done anything forbidden or declared to be unlawful, or omits to do anything required to be done, by the constitution or laws of the state, or by orders of the commission... . ” (emphasis added) Neither the statute nor the regulation requires Southern to report to a hospital or other medical facility or service and the claim, on its face, shows no causal connection between appellant’s injuries and appellee’s failure to report to the commission. Any common law failure to summon medical assistance is included in appellant’s fourth claim. The trial court did not err in dismissing Count V. That part of the judgment dismissing Count IV of the complaint is reversed. The dismissal of Counts III and V is affirmed. HATHAWAY, C. J., and BIRDSALL, J., concur.

OPINION WREN, Chief Judge. This appeal by the wife from a decree of dissolution questions the disposition of certain property and the amounts awarded by the court for spousal maintenance and child support. The parties, Harry Kern Wisner (husband) and Mary Jane Wisner (wife) were married in Omaha, Nebraska in February of 1962. At that time, wife was a nurse and husband was completing his final year of medical school. Following eight years of further training by husband in surgery and plastic surgery, the parties moved to Mesa, Arizona in 1970, where husband set up a medical practice in plastic surgery. During their marriage, wife was not formally employed, but rather assumed responsibilities for homemaking and raising of the Wisners’ family. The husband filed a petition for dissolution on May 13, 1976. A decree dissolving the marriage was ultimately entered on July 12, 1977. SPOUSAL MAINTENANCE AND CHILD SUPPORT Wife first urges that the spousal maintenance and child support awards were arbitrary and inadequate. We disagree. A.R.S. §§ 25-319 and 25-320 confer upon the trial court not only the power to grant such awards, but set forth guidelines to be used in determining their propriety and amount. On review, this court will not disturb that determination if there is any reasonable evidence to support it. Baum v. Baum, 120 Ariz. 140, 584 P.2d 604 (App. 1978); Williams v. Williams, 19 Ariz.App. 544, 509 P.2d 237 (1973). Here, the judgment grants to wife the custody of one of three children and child support was fixed at $250 per month. In addition, the court ordered husband to pay wife $1,500 per month for six months and $1,000 per month for 30 months thereafter, along with an allocation of community property worth approximately $80,000. In support of her argument that the support awards were insufficient, wife points to evidence that at the time of filing the petition for dissolution, living expenses for both parties were $3,500.00 per month. That figure is, however, deceptive, in that it reflects expenses incurred by the Wisners when they were living together as a family of five in a $130,000 home (subsequently ordered sold as part of the settlement). Wife testified at trial that she expected to be moving into smaller and less expensive quarters; and this, along with the fact that her expenditures now need accommodate only herself and the one child, renders the $3,500.00 figure of little use in resolving the issue. In our opinion there is substantial evidence in the record to support the trial court awards of maintenance and child support. Wife next argues that the court abused its discretion in failing to include in the spousal maintenance award a provision for future modification, citing Lindsay v. Lindsay, 115 Ariz. 322, 565 P.2d 199 (App. 1977). This argument is without merit. In Lindsay, the trial court was held to have abused its discretion in awarding a lump sum payment of $400.00 per month for three years with no provision for modification. The wife in that case was 49 years old at the time of trial, with no specialized employment skills. Further, there was testimony that she had been wholly unsuccessful in securing employment, and the property distribution to her amounted to less than $7,000. In contrast, the wife here was 39 at the time of trial, trained as a nurse, and contemplating further schooling. Also, as before noted, she received a property award approximating $80,000. Nor is there any indication in the record that she had been unsuccessful in securing employment. We therefore find no abuse of discretion in the trial court’s failure to include a provision for modification. Due to their conceptual similarities, the next two issues raised by wife will be considered together. She first posits that the trial court failed to properly classify certain intangible personal property of the parties, and then asserts that even if the property was properly classified, the court erred in its valuation of that property. The items wife refers to are the following: (1) common stock of husband’s professional corporation; (2) goodwill of the corporation; (3) retirement plan assets; (4) social security retirement accounts; and (5) medical license, board certificate and value of postgraduate education received by husband while he was married. We consider these items in order. COMMON STOCK OF HUSBAND’S PROFESSIONAL CORPORATION Wife contends that the trial court incorrectly ruled that husband’s stock in his professional corporation was his sole and separate property. We agree. A.R.S. § 25-211 establishes that all property acquired during marriage, except that which is acquired by gift, devise or descent, is the community property of the husband and wife. The stock in question was acquired during marriage and does not fall under any of the exceptions. Husband, however, argues that the trial court’s characterization as separate property was correct by virtue of the provisions of A.R.S. §§ 10-907 and ÍO^OS^). We think otherwise. These statutes set strict guidelines for the organization and ownership of professional corporations. They are not intended to alter the statutory scheme of A.R.S. § 25-211. See A.R.S. § 10-902(4). The stock therefore should properly be characterized as community property. The trial court’s error in characterization does not, however, require reversal, since only errors which prejudice a party’s substantial rights justify reversing a trial court’s judgment. In the Matter of the Estate of Tortensen, 125 Ariz. 373, 609 P.2d 1073 (App.1980); Seely v. McEvers, 115 Ariz. 171, 564 P.2d 394 (App.1977). Here, though the court’s characterization of the stock as separate property was error, the court went on to find that wife was nevertheless entitled to one-half the value of the stock. We therefore find the error to be harmless and the wife’s argument in this regard moot. In a related argument, wife asserts the trial court erred in it's valuation of the fair market value of husband’s “interest” in the professional corporation. She claims that the court’s figure of $8,050 is not supported by any evidence. The court found: The assets of the professional corporation entitled to community property recognition consist of cash on hand, equipment and prepaid expenses. The total value of these assets less liabilities is $8,050.00. Again we agree. A diligent search of the record has failed to produce any supporting evidence for this valuation and husband has not referred us to any. Accordingly, we remand this issue to the trial court for a determination of the basis for the value fixed, or an appropriate division of this asset. GOODWILL VALUE OF THE CORPORATION Wife next challenges the court’s determination that a professional corporation cannot possess a “goodwill” value. In the alternative, she urges that the judge erred in placing no value on the goodwill of husband’s corporation. In support of her first argument, wife refers us to a number of cases which support the proposition that a professional corporation can possess goodwill. We do not reach this question, however, since in our opinion, the trial court made no such finding. The judgment merely determined that there was no goodwill value to be attached to this professional corporation. On this point the judgment read: 10. That the petitioner is a sole practitioner, has no present plans to engage in any other form of practice, and is a specialist who tends to see a patient for only one surgical procedure of short duration rather than treating a patient over an extended period. The life of the professional corporation is directly and literally tied to the life of the petitioner. The Court finds that the goodwill of the petitioner’s practice to be of no value, (emphasis added). In our opinion, the trial court’s finding that a professional corporation “is directly and literally tied to the life of the husband” is an incorrect statement of the law and is unsupported by the evidence. A.R.S. § 10-908(3Xa) provides that a professional corporation shall cease to exist upon the death of the last surviving shareholder. Moreover, under A.R.S. § 10-908(6), the shares of a professional corporation are transferable to “persons duly licensed to perform the same category of professional service as that for which the professional corporation was organized ...” It is thus conceivable that through transfers of shares, husband could extend the life of the professional corporation indefinitely and well beyond his natural life.- Even if such transfers were not to occur, A.R.S. § 10-909(D) provides for transferral of shares of the corporation, upon death of a shareholder, to “persons qualified to own such shares. . Significantly, there is nothing in the record to indicate that husband would not or could not take any of these actions. Of more importance, we have further determined that the finding that the husband is “a specialist who tends to see a patient for only one surgical procedure of short duration rather than treating a patient over an extended period,” while supported by the evidence, is not conclusive that husband’s practice possessed no goodwill value. To the contrary, the record is clear that husband’s medical practice relied for its success, not on repeat patients, but on repeat referrals of patients from physicians and other medical personnel (his so-called “referral base”). In such a situation, the mere lack of the one element, repeat customers, cannot preclude, ipso facto, the existence of a goodwill value. Admittedly, “goodwill” value is a term which is elusive of any precise definition, and courts have long struggled to set forth appropriate criteria for its determination. (See C.J.S. Good Will, § 1; 38 Am.Jur.2d Good Will § 1 and cases cited therein.) In Arizona, goodwill has been defined as “[T]hat asset, intangible in form, which is an element responsible for profits in a business.” Jacob v. Miner, 67 Ariz. 109, 120, 191 P.2d 734, 741 (1948). It has also been defined as, in its broadest sense, reputation. Spheeris v. Spheeris, 37 Wis.2d 497, 155 N.W.2d 130 (1967). These definitions are more usable in this case since they capture the essence of the concept, without placing undue reliance on the aspect of repeat customers. The court’s decision focused on the lack of repeat or habitual patients and was undoubtedly premised solely on the following testimony from husband’s expert witness: Q. Okay. So in fact, you still maintain there is no good will in this— A. In my mind, there is no good will. The witness went on to state that this opinion was premised upon the lack of repeat patients: ... in valuing a practice, much like buying an accounting practice, I’m buying the opportunity to serve repeat, in our case, clients. Hopefully, we can serve them and keep them. If we don’t, we lose them and adjust the price. However, in the absence of even the chance to serve a repeat clientele or, in the case of doctors, repeat patients, what could I possibly be purchasing is the question. As we have just discussed, the medical practice of a plastic surgeon cannot and need not be dependent on “repeat clientele” for goodwill value to exist. Rather, in the case of a professional corporation, the determinative factors, among other things, are: the practitioner’s age, health, past earning power, reputation in the communi ty for judgment, skill and knowledge, and his or her comparative professional success. In re Marriage of Lopez, 38 Cal.App.3d 93, 113 Cal.Rptr. 58 (1974); In re Marriage of Lukens. We hold that the testimony of the witness was therefore based on an erroneous assumption of law. Since the evidence otherwise reflects that husband’s professional corporation did possess a goodwill value, we remand the case to the trial court for a determination of that value; recognizing, however, the difficulties presented in placing a value on it. Jacob v. Miner. No rigid and unvarying rule for the determination of the value of goodwill has been laid down by prior case law and each case must be determined on its own facts and circumstances. Spheeris v. Spheeris. See generally, Annot. Accountability For Good Will Of Professional Practice In Actions Arising From Divorce Or Separation, 52 A.L.R.3d 1344. LIFE INSURANCE POLICIES AND RETIREMENT PLAN ASSETS The court adopted the cash surrender value of certain life insurance policies on the husband as being their monetary worth for dissolution. Wife proposes that the policies should have been valued at something greater than their cash value, arguing that, even if an insured has drawn on the cash value of a policy, thus reducing it, the beneficiary is still entitled to the full face value of the policy less any cash drawn, if the insured died. Such an argument is fallacious. An insurance policy upon dissolution is its cash value. Grost v. Grost, 561 S.W.2d 223 (Tex.Civ.App.1977); Ray v. Ray, 336 S.W.2d 731 (Mo.App.1960). See de Funiak-Vaughn Principles of Community Property, § 233, pps. 528-532 (2d Ed., 1971), cf. Blaine v. Blaine, 63 Ariz. 100, 159 P.2d 786 (1945) (referring to value of life insurance policies upon dissolution in terms of cash value.) Wife also protests the court’s failure to include in the decree a pre-trial stipulation regarding the so-called “3251 Building”. The retirement plan of husband was involved as a partner in ownership of the land upon which this building was located. A completely different partnership owned the building itself. Wife and husband entered into a stipulation that if the land partnership should purchase the building from the building partnership, wife would receive a one-half interest of the retirement plan’s land partnership interest. The stipulation is absent from the decree of dissolution, but husband argues that since wife failed to raise this issue before the trial court, it is deemed waived on appeal. O. S. Stapley v. Logan, 6 Ariz.App. 269, 431 P.2d 910 (1967). Wife disagrees and asserts that her submission to the trial court of a critique and objection to husband’s proposed findings of fact, conclusions of law and judgment and decree of dissolution, in addition to her own motion for hearing and for order adopting wife’s proposed findings of fact and conclusions of law, both of which included the stipulation, constituted a valid objection to the judgment and preserved the issue for appeal. We agree. The record so reflects and, therefore on remand, we order that this stipulation be included in the decree. THE SOCIAL SECURITY ACCOUNT Vested social security benefits of husband are next considered. Wife points out that under 42 U.S.C. § 401 et seq., an account vests when a wage earner contributes to it six months out of each year for a total of 10 years. With regard to married couples, if the couple remains married at least 20 years and the contributing spouse dies or the couple is divorced, the non-contributing spouse’s entitlement at age 60 is secured. However, if the couple is married for 10 contributing years, and the death or divorce occurs between the tenth and twentieth year, the Social Security Act at that time provided that the non-contributing spouse was entitled to no benefits. Wife argues that since the Social Security benefit plan is nothing more than a government-provided pension plan, contingent only upon survival for a requisite number of years, the trial court should have awarded her a sum equal to one-half the benefits possible under the fund, since the contributions to it were paid by the marital community. We cannot agree with this contention. As stated, 42 U.S.C. § 401 et seq. provided that, at the time of the decree, a non-contributing spouse’s benefits did not vest until he or she had been married for 20 years (unlike the contributing spouse’s benefits, which vested after 10 years). Thus, at the time of the dissolution in this case, by operation of the Federal statute, the benefits were the sole and separate property of husband. Cf. Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) (Provisions of Federal Railroad Retirement Act preempt conflicting provisions of California community property statutes). MEDICAL LICENSE, BOARD CERTIFICATE AND EDUCATION VALUE Lastly, wife advances the novel argument that husband’s medical license and board certificate are property within the meaning of A.R.S. § 25-211, and, hence, having been acquired by husband during marriage, are community property, as to which she should be awarded one-half the value thereof. Alternatively, she asserts that she should be compensated for her contribution in obtaining them in order to avoid unjust enrichment of husband. This issue is one of first impression in this state. However, it is not unique and has been the subject of judicial inquiry in other jurisdictions. Most states which have considered the question have rejected the concept that such educational attainments constitute “property”. In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75 (1978); Hurley v. Hurley, 94 N.M. 641, 615 P.2d 256 (1980); Muckleroy v. Muckleroy, 84 N.M. 14, 498 P.2d 1357 (1972); Stern v. Stern, 66 N.J. 340, 331 A.2d 257 (1975); In re Marriage of Aufmuth, 89 Cal.App.3d 446, 152 Cal.Rptr. 668 (1979); Todd v. Todd, 272 Cal.App.2d 786, 78 Cal.Rptr. 131 (1969); In re Marriage of Horstmann, 263 N.W.2d 885 (Iowa 1978); Hubbard v. Hubbard, 603 P.2d 747 (Okl.1979). Contra, Inman v. Inman, 578 S.W.2d 266 (Ky.App.1979); Lynn v. Lynn, 49 U.S.L.W. 2402 (N.J.Super.Ct., Bergen County, December 23, 1980). In Muckleroy it had been argued that the husband’s education was the product of the joint labor and industry of both parties after their marriage and was therefore community property. In turning aside this argument the court concluded: A medical license is only a permit issued by the controlling authority of the State, authorizing the individual licensee to engage in the practice of medicine. The medical license may be used and enjoyed by the licensee as a means of earning a livelihood, but it is not community property because it cannot be the subject of joint ownership. 84 N.M. at 15, 498 P.2d at 1358. The same question arose as to an M.B.A. degree earned by the husband in Graham. Again the “property” concept was rejected: An educational degree, such as an M.B.A., is simply not encompassed even by the broad views of the concept of “property.” It does not have an exchange value or any objective transferable value on an open market. It is personal to the holder. It terminates on death of the holder and is not inheritable. It cannot be assigned, sold, transferred, conveyed, or pledged. An advanced degree is a cumulative product of many years of previous education, combined with diligence and hard work. It may not be acquired by the mere expenditure of money. It is simply an intellectual achievement that may potentially assist in the future acquisition of property. In our view, it has none of the attributes of property in the usual sense of that term. 194 Colo, at 432, 574 P.2d at 77. The wife in Graham had worked full time throughout the couple’s six-year marriage, and had contributed 70 percent of the family income in addition to most of the household work while her husband was acquiring his degree. The trial court found that the degree was jointly owned property and had determined that the future earning value to Dennis Graham of the M.B.A. degree was $82,836.00. Anne was awarded $33,134.00 of that amount. On appeal the supreme court affirmed the reversal of the trial court by the court of appeals. The fact that the decision left Anne with nothing to show for her six years of labor prompted a three judge dissent which strongly urged that the husband’s increased earning power represented by the degree should be considered marital property, where there was no accumulated property and the spouse who subsidized the degree was ineligible for maintenance. The dissenting justices bemoaned the fact that Anne Graham walked away empty-handed when, had she been widowed by the tortious act of a third party, she would have been entitled to compensation based on her husband’s projected future earning capacity. The Supreme Court of Iowa in the Horstmann case, and the California Court of Appeals in Todd, accepted the reasoning of the majority in Graham in holding that a law degree was not a communal asset of the spouses for the purpose of distribution upon dissolution of the marriage. See also Stern v. Stern, supra. Unquestionably, if we were to hold that these items are property, by statutory definition they would be community property, A.R.S. § 25-211, and wife would be entitled to an equitable division of their value. A.R.S. § 25-318. As to the method of valuation, wife would have us place an actuarial dollar value on the increased earning capacity of husband. As an alternate solution, she asserts her right to reimbursement because of her husband’s reduced income during his education and training period, and for her part in the joint effort of the community in obtaining that education. To buttress this latter argument of reimbursement, she points to additional language in Graham : A spouse who provides financial support while the other spouse acquires an education is not without remedy. Where there is marital property to be divided, such contribution to the education of the other spouse may be taken into consideration by the court. (Citations omitted) . . . Further, if maintenance is sought and a need is demonstrated, the trial court may make an award based on all relevant factors. Section 14-10-114(2). Certainly, among the relevant factors to be considered is the contribution of the spouse seeking maintenance to the education of the other spouse from whom the maintenance is sought. Again, we note that in this case petitioner sought no maintenance from respondent. 194 Colo, at 433, 574 P.2d at 78. We agree with the majority opinion in Graham that education is an intangible property right, the value of which, because of its character, cannot properly be characterized as property subject to division between the spouses. In our opinion, the marital property concept simply “does not fit.” However, while an education itself is not property subject to division, it is still a factor to be considered, in addition to others, in arriving at an equitable property division and in determining matters of spousal maintenance and child support. Graham; Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972). Cf., Greer v. Greer, 32 Colo.App. 196, 510 P.2d 905 (1973) (so- called “alimony” award was actually an adjustment of property rights in consideration of wife’s contribution to family expenses while husband was in medical school). Thus, while education, along with the potential for greater earning capacity which can accompany it, is doubtless a factor to be considered by the trial judge in determining what distribution of property would be “equitable”, and is even more obviously relevant upon the issue of spousal maintenance, it cannot be deemed property as such within the meaning of the Arizona statute. Obviously, also, an important factor to consider in the overall picture is the extent to which the non-license or degree holder has already or otherwise benefited financially during coverture from his or her spouse’s earning capacity. The rather common situation in which one spouse puts the other through professional school, followed closely by a dissolution upon the completion of schooling, is perhaps the clearest picture of the injustice which may evolve. In that situation, the spouse who has devoted much of the product of several years of labor to an “investment” in future family prosperity is barred from any return on his or her investment, while the other spouse has received a windfall of increased earning capacity. However, the acquisition of a considerable estate obviously solves this problem. Such is the situation here. Wife shared in the fruits of husband’s education for many years during their marriage, and ultimately realized a value therefrom by a substantial award to her of the community assets, plus spousal maintenance as set forth above. We find that the court did not abuse its discretion in this regard. In conclusion, we would like to make some observations concerning wife’s argument of “unjust enrichment.” In our opinion, unjust enrichment, as a legal concept, is not properly applied in the setting of a marital relationship. Marriage is by nature not an arm’s length transaction between two parties. If two individuals wish to define their marriage as such, they may of course do so and memorialize it in a contract that spells out the specific rights and duties of each. However, in the absence of such an agreement, we believe it is improper for a court to treat a marriage as an arm’s length transaction by allowing a spouse to come into court after the fact and make legal arguments regarding unjust enrichment by reason of the other receiving further education during coverture. In the absence of a specific agreement, such legal arguments simply do not fit the context of a marital relationship. In each marriage, for example, the couple decides on a certain division of labor, and while there is a value to what each spouse is doing, whether it be labor for monetary compensation or homemaking, that value is consumed by the community in the on-going relationship and forms no basis for a claim of unjust enrichment upon dissolution. We believe if the decision is made that one or both spouses shall receive further education, courts should assume, in the absence of contrary proof, that the decision was mutual and took into account what sacrifices the community needed to make in the furtherance of that decision. In this case, wife’s testimony clearly illustrated that the decision as to husband’s further training was mutual, consensual and made with full understanding of the sacrifices that necessarily accompanied the decision. There is nothing to support a claim of unjust enrichment. We therefore hold that the items in question are not property, and that the court did not abuse its discretion in denying further compensation to the wife. Finally, wife argues that the trial court erred in denying her request for an accounting of the professional corporation. The request was made in a counterclaim filed by wife on September 1, 1976, alleging, inter alia, that husband had undervalued and hidden assets. The burden of showing that an accounting is necessary is on the party requesting the accounting. Associates Finance Corporation v. Walters, 12 Ariz.App. 369, 470 P.2d 689 (1970). The trial court apparently was of the opinion that wife failed to carry her burden and we see no reason to upset that determination. Affirmed in part, reversed in part and remanded with instructions. DONOFRIO, J., concurs. . § 10-907. Nature of corporate activity A. A professional corporation may only be organized for the purpose and may only engage in the rendering of one category of professional service. B. A professional corporation may render professional service only through shareholders, directors, officers, agents and employees who are themselves duly licensed in that category of professional service. C. No person who is not licensed in that category of professional service shall have any part in the ownership, management or control of the corporation, nor may any proxy to vote any shares of such corporation be given to a person who is not so licensed. § 10-908. Number of incorporators; continuity of life; centralized management; corporate liability; transferability of interest A professional corporation shall: * * * * * * 6. Permit shares to be transferable to persons duly licensed to perform the same category of professional service as that for which the professional corporation was organized, or to the professional corporation itself, provided that this shall not be construed to prohibit such further lawful restrictions thereon upon which the shareholders may agree. . Golden v. Golden, 270 Cal.App.2d 401, 75 Cal.Rptr. 735 (1969); In the Matter of the Marriage of Fleege, 91 Wash.2d 324, 588 P.2d 1136 (1979) (relating to a dental practice); In re Lukens, 16 Wash.App. 481, 558 P.2d 279 (1976); In re Nichols, Colo.App., 606 P.2d 1314 (1979) (relating to a dental practice). . Now ten years by virtue of amendments to the Social Security Act 42 U.S.C. § 416(d)(1) and (2), 42 U.S.C. § 402(b)(1)(G). . Guerrero v. Guerrero, 18 Ariz.App. 400, 502 P.2d 1077 (1972), referred to by wife, is of no assistance in this case, since it involved social security disability benefits which had not only vested but for which payments had actually been made to husband, a totally different situation than that presented here. . Wife further refers us to Arizona' case law holding that community contributions to separate property are reimbursable upon death or dissolution. Horton v. Horton, 35 Ariz. 378, 278 P. 370 (1929); Hanrahan v. Sims, 20 Ariz. App. 313, 512 P.2d 617 (1973). We point out that, unlike here, those cases involved compensation for actual contribution of money to the separate property involved, and that in those cases, Unlike here, the items in question were clearly property.