*1 .42 suspension practice 14-341 from of law for a A.R.S. meaning of § within the
tate period of and the members of his will six months probate of to admit of sufficient County, Court, opinion being this of the Maricopa Superior Court of discipline minimum reflected in the Arizona. recommendation. if Now, it is ordered therefore Now, it is ordered that said therefore proper party is not substituted disciplined sus- A. Garth Nelson be 12th days from 60 in this Court within practice pension peri- Clyde of law appeal of December, 1960, day of months, suspension commence six od of stand Harvey will dismissed. H. 1961, day January, of on First day July, First terminate by further this modified order of unless Court. 623 P.2d
357 disqualified himself from PHELPS State Bar Member of the of a Matter matter. In consideration NELSON, Arizona Garth Respondent.
No. 7098.
Supreme of Arizona. Court P.2d
Dec. 1960. BUZARD, Appellant, (Jack) A. P. v. Joseph Ralph John William GRIFFIN individually right Hourihan, and in the electors and on members behalf Party Democratic of the State Case, Yuma, for'respond- Jr., Williby . E. right and on o behalf Arizona f the electors of the State the citizens ent. Appellees. Arizona, Phoenix, Examiner Mills, for and F. John No. 7055. Bar of Arizona. The State Behalf Supreme Court of Arizona. - CURIAM. PER 21, 1960. Dec. having Nelson ad- A. Garth Respondent Rehearing Feb. Denied charged and disputing matters
mitted of the State Board recommendation disciplined by Bar Governors *2 Roca, Scoville, Lewis, Beauchamp & Frank, Phoenix, Linton John Richmond, legations the statement of election con- ‘Chandler, Tullar, Tuc- Udall & test son, charge with violations appellant. for A.R.S. 16-1303 and 16-1307 A.R.S. § § appel- Madden, Phoenix, E. John dealing in- respectively with coercion and lees. changing timidation of an elector and by corrupt vote of an elector means or STRUCKMEYER, Chief Justice. inducement. primary out of case arises This proceeded Thereafter the cause to trial Three can- September election Superior result that Court of Brooks, in- didates, (Bill) T. William Maricopa County annulled and aside set Brooks and cumbent, William Corpo- the nomination Buzard as of A. P. Buzard, sought there (Jack) A. P. ration Commissioner based on the follow- six-year term nomination Democratic express findings: Corporation Commission. Arizona election, (Jack) A. P. “that W. A. Brooks did not intend to a result As votes, 56,799 T. good William abe faith candidate for of- received 26,- 48,988 Brooks Commissioner, William fice but *3 de- placed Mr. Buzard was that his name was ballot Accordingly, on the 547. for the through nominee the efforts of A. Democratic himself and the clared of nomi- (Jack) a certificate Buzard and associates to issued P. office and was (sic) confuse Brooks’ name with that nation. Brooks, a faith good of W. T. candi- a statement 20, 1958 October On date, re-election, for running who was n election appellees, by filed contest thereby draw mistaken and votes to be- right and on the "individually, and in (Emphasis supplied.) A. Brooks.” W. the members of and electors half of Contestee, A. (Jack) P. “that Arizo- Party of State Democratic committed an Buzard offense dis- Buzard moved A. Appellant na.” of the the elective voters at franchise Maricopa Superior Court and miss September 9, primary election of motion, entering a granted County 1958, by fraudulent device or con- election contest. dismissing the judgment- trivance, defrauding and elec- reversed, and this appealed Appellees primary by election de- at said tors valid complaint stated a holding causing and them to ceiving (sic) vote n election Buzard, 1959, contest, Griffin v. person for the office a different for Although P.2d 201. 342 Ariz. 86 Corporation Commissioner Arizona action, certain of the al- criminal they they appear, intended or desired to vote before were to and that than (Emphasis supplied.) following for.” all declined to day; complaint Essentially charges that Wil- good
liam Brooks a candidate in was not Proof that at the time regularly 4. set faith; plac- that the bad faith consisted of depositions Buzard, taking of A. P. ing purpose name on ballot for the questions by he refused to answer certain thereby misleading the voters and draw- invoking constitutional privilege ing It is votes from William T. Brooks. against self-incrimination. implicated in alleged also that Buzard was No other evidence whatsoever is claimed conduct, agents, such directly through establish Buzard’s connection with the
by originating, aiding abetting tak- entrance of W. A. Brooks in the race for part Assuming in that conduct. with- Corporation Commissioner. Is this evi- deciding out A. Brooks was not a W. implicate dence sufficient A. P. Buzard candidate, question good faith the crucial originating, aiding or abetting in the then is whether there is sufficient evidence candidacy of W. A. Brooks? We think conformity implicate Buzard in Jack not. complaint allegations with the of the findings of court below. Points evidence established
The court below relied on these facts as person by that a the name of Harold Bras- participation evidencing Buzard’s field, employee Corpora- of the Arizona procurement candidacy: of W. A. Brooks’ tion Commission and a friend Pearl A, DiFebbo, daughter of W.
1. Proof that some of the nomination Brooks, visited the W. A. Brooks home on petitions of W. A. Brooks and Buzard at least two occasions during campaign persons; circulated the same were petitions and circulated two nomination supporter that a (who 2. Proof behalf, thereon; obtaining signatures supporter A. Brooks) also of W. petitions that he delivered nomination daughter a friend of W. A. Brooks Brooks to paid Patricia Brown visited the home of W. A. Brooks on them; circulating her 28 of that he had during campaign; two occasions *4 husband, Georgia C. Watts and her Bennie people that certain Watts, 3. Proof who petitions were circulate and fill in 12 subpoened purpose Brooks; giving depo- for the of that he A. also W. circulated five request, appellees’ pri- at after the petitions sitions on behalf of the of candidacy A. Buzard, after mary election and contest was and obtained P. 100 names on them; started, met in hotel room the evening that he worked in the Tucson of- - part Point 3. based Corporation court below fice of the Commission fi- judgment Hardin, acted its certain wit- who on refusal of Millard C. knew expense questions nesses answer primary any concerning agent and nancial filed campaign Brooks. Brooks. Its behalf A. of A. on W. W. statement of predicated conclusion petition the fact that circulated one on Hardin five after A. Brooks the statement of election contest was names on behalf of W. 20, 1958, subpoenas behalf petitions containing names on on October filed were purpose depositions taking issued for Buzard. A. P. of certain witnesses on October appear that both therefore lawyers, evening On the of October two part leading and Hardin took a Brasfield being Buzard, attorney one for A. P. candidacy Brooks and were of W. A. with, met in a hotel among room Tucson part in the in and took interested also others, Buzard, Brasfield, A. P. Harold W. is, how- There candidacy A. P. Buzard. Brooks, Brooks, A. Mrs. A. Pearl Di- Bras- testimony ever, or evidence no Febbo, Millard C. Hardin and Wagg- Pete activities engaged in their Hardin field or ner. The day duly at following the time instiga- A. behalf of W. on taking depositions, set for the of their these P. Buzard. of A. suggestion tion (except individuals Buzard) P. refused any questions. to answer The court below Williams, a that E. T. is evidence There inferred from people the refusal of the Commissioner, Pete asked one Corporation present at the in the meeting hotel room employee an Waggner, plan there was a P.A. Buzard to campaign Tucson, to Commission prevent from witnesses giving Waggner knew that Pete Buzard testimony. From this inference it derived in contact with Brasfield Harold a second inference that their had the same both worked in office since him given, been it would been adverse to falls far short evidence This latter Tucson. A. P. Buzard. establishing a connection between A. P. Brasfield and the efforts of conclusion, think We such a basing promote the A.W. Hardin inference, an inference does, as it there an inference from If Brooks. the chain of spins reasoning out into the Brasfield, knowing it can do no Waggner’s conjecture. Wholly barest region of aside speculation support the that E. than more rule lawof that no inference exert was able to sufficient Williams T. either can prejudicial party legitimately Brasfield and Hardin to induce from witness’ assertion drawn influence testify, refusing to privilege Common- candidacy of Buzard. assist Jack
47 N.E.2d was Ries, plan prevent Mass. 150 P. these v. 337 A. Buzard’s to wealth States, 527, 541; any 87 U.S. giving testimony. Billeci v. United witnesses from Each may independent 24 A.L.R.2d have decided 274, 184F.2d others App.D.C. on the present rule Arizona that in advice of long the counsel what has been it his course of an infer conduct would an inference from be. In draw to order respect Brooks, the record be established shows that prior inference must W. A. ence, the Mrs. Brooks, W. A. any other reasonable Pearl DiFebbo and the exclusion to Millard Hardin by probability. a New C. all refused to theory than rather McNeely, following day specific Life Insurance Co. v. instruction from York attorney, their Schneier, Ira 181, 196, present. P.2d there Ariz. further shows that Harold Brasfield below drew the court instant In stated: plan A. a P. there was that inference night “Last I heard Mr. Schneier from prevent witnesses to Buzard * * advise his clients to *. I heard testimony. inference was This giving any him complaint read the to them and meeting of the derived, stated, from a I heard him advise his clients, he felt refusal their room and witnesses a hotel the court jurisdiction lacked in this be following day. It will testify the matter, I personally my believe inferred, first must that there noticed rights constitutional to refuse an- Buzard’s A. P. it was plan, that second any swer questions, further prevent plan that the plan and third ground it would be invading my into testimony. giving from witnesses political activities, beliefs and and un- possible conceivably is of course it While get til I can advice from counsel, I proba- inference, is also it such an to draw answer refuse to any further ques- meeting that conclude ble to tions.” lawyers was to ascertain the with the hotel present. persons those rights of legal is clear that think it the record We does exclusion to the no inference there is Hence support inference to the exclusion probability that reasonable theory reasonable any other there plan prevent wit- here there Buzard plan by prevent P. was a testifying. from nesses giving any testimony from 'these witnesses presence possible conclude, merely if it were because of A. P. Even lawyer at any other reasonable theo- and his conference. exclusion plan a concerted Accordingly inference not to their testi- ry, that there necessary testify, is it a conclusion that be adverse to mony would Buzard is “ * * * privi- while his possibility legitimate con- claim of a mere and no lege not be used him in clusion can thereon. be based subsequent prosecution, criminal judg- its The court below rested Point 4. inference drawn part ment in on an inference have been unfavorable to him avail- answer the refusal of A. P. Buzard to opponent able civil cause.” *6 duly for questions set certain the time at Evidence, Wigmore 8 3d ed. Pocket deposition on December taking the of his Supplement, Section 2272. the 12, invoked At time he 1959. that against self-incrim- constitutional privilege question further remains The be to an- ination, specifically at time while the same peculiar swered to whether the under actual right testify at the reserving the circumstances of this case an inference can stated: the court trial of cause. The trial be drawn pro- P. Buzard that cured and aided or assisted in the “ * * * Buzard the of action A. cause, of W. A. Brooks. At the trial of testify, preventing these witnesses appellant took the witness there- stand and answer Buzard’s refusal and Mr. after propounded answered all questions * * * taking of questions at the appellant to him. When counsel con- * * * deposition the in- raise his cluded, appellees dismissed the witness testimony, his their ference without is cross-examination. The issue would have been unfavorable given, if whether which could have inference A. P. Buzard.” to said privi- been drawn from the claiming of lege deposition of time taking the argued appellant it is by first It is witness, after continues waiving civil to draw an improper in a in- claim privilege, former subsequently privi- invocation of the from the' ference testifies in the think, proceeding. same self-incrimination. We lege against however, majority of courts that the while may An inference is a fact which between the distinction crimi-
recognizing presumed proof from the of the existence permit an infer- proceedings civil nal and facts. is non-existence a litigation as drawn in civil to be ence proven fact conclusion from or facts. the misconduct with which the the truth support fact to Here the inference charged. Wotton, Fross v. 3 is litigant of A. failure P. Buzard to at 350; testify 384, Society 44 Amana P.2d Cal.2d 337; Selzer, deposition. did testify 250 Iowa 94 N.W.2d When he later v. trial, Curtis, 449, 261 the fact 43 Wash.2d P.2d which in at v. Ikeda longer rested ference no existed and
49 judge vanished from it Ariz. P.2d 815. The trial deducible inference controlling reject extinguished. liberty fact not at uncontra- emphasized positive testimony is that dicted here to be did A. P. Buzard. testify It is at the trial of cause. Seemingly passed other state has one destroys arising fact which inference directly presented. on the here Its issue testify. prior failure holding conformity conclu- with our
Moreover, testimony A. P. sion here. unequivocal allegations was an denial “This is committed the doc complaint. He testified: appears trine that witness who Buzard, “Q. you Mr. did testifies trial on the generally of, person you authorized or knew merits not be discredited show anything entry to do with pri hearing that at a former or in a Tucson, Arizona, Mr. orly deposition Brooks given re such witness race, Corporation into Commis- fused to ground sioner, long during term might tend incriminate * * * last election? A. No sir. him. Masterson v. St. Louis Transit Co., 507, 523-525, Mo. 98 S.W. “Q. After Mr. A.W. *7 48, 53-54; 103 S.W. Garrett v. St. announced for the Cor- Co., 87-95, 65, Louis Transit 219 Mo. Commissioner, poration you per- did 68, 74-78; Weber, 118 S.W. v. State him sonally aid or assist in his candi- 475, 147, 148; 272 Mo. 199 Hill S.W. dacy way? any A. No sir. Co., Packing Mo.App., v. Missouri 24 After “Q. Mr. A. (Bill) 198; 196, Conway, S.W .2d v. State 348 race, you of Tucson entered the did 128, 580, Mo. 154 S.W.2d 134.” Frank any person authorize instruct Franklin, 442, v. 365 Mo. lin 283 S.W. to whomsoever assist aid his candi- 483, 2d dacy way ? A. No sir.” urge
Appellees that because of the claim jurisdiction In this privilege self-incrimination, triers deprived of arbitrarily reject fact not may been benefits of evidence have discovery. public is nothing there We think the pretrial where intrinsic evi state encourages litigants dence or extrinsic in itself policy circumstances suspicion fully upon testify to all testimony. which cast to material others Commission, pre- may the truth Ratley v. Industrial 74 Ariz. order matters adopt per- 997; Estate, this court to a rule Gary’s P.2d In 248 re vail. Were 50 prevail Procedure, A.R.S., over the specifically provides inference to 16
mitting the unimpeached procedure declara- subsequent sworn witness party when or a subsequent tions, discourage such any question propounded refuses to it answer testimony. appellees’ right upon examination, to party It was the oral opposing may for a continuance request apply court below to the for an com- court order pelling sworn refute A. P. Buzard’s an to It order answer. then becomes possible. duty testimony, such were if court to whether determine justifica- refusal was without substantial ap is one where The instant case By tion. rule 37(b), if a refuses party pellees alleged fraud. Fraud must question answer a being after directed convincing by established clear be court, do so may enter court predicated on be evidence. It not striking order pleadings. out speculation conjecture. Murillo v. appellees’ Such is not On here. 786; Hernandez, P.2d Stew 79 Ariz. compel answer, motion to A. P. Buzard Schnepf, Ariz. P.2d 529. art v. recognized right the court his constitutional palpably judgment of the court below testify and to refuse to denied the motion. speculation conjecture. upon It rests consequently There no refusal com- support in the finds reasonable evidence. no answer, ply order with the court’s as is It must set aside. appellees’ rule required'by 37(b). Since appellant’s pleadings point motion strike One further should be con rule, under the the court be- authorized After A. P. Buzard refused to sidered. refusing err in render judg- low did not deposition, appellees moved at his appellees’ favor. ment in compelling below for an order questions so Buzard to answer A. P. reasonable there no Since This motion was denied. propounded. support judgment, is or- evidence appellees Thereafter, moved to strike the instructions to enter reversed with dered grounds P. Buzard of A. answer (Jack) A. P. declaring judgment ques appellant.had refused to answer Corporation Commissioner as nominated deposition. This motion on oral tions primary long term at election of support urged is now denied. also *8 general the office elected to and appellees’ that motion judgment . in 1958. election granted judg have been and should strike have been then rendered should ment BERNSTEIN, UDALL, and plain LESHER, Appellees are A. P. Buzard. concurring. JJ., 37(a), Rule Rules Civil error.
ly in PHELPS, (dissenting). not be attained in trial of cases if this Justice quoted were not true. the following my duty regret again I that becomes Wigmore (3rd from 1 on Evidence Edition) This majority opinion. dissent to the section 41: especially is true in the case for the instant reason that have known favor- I “ * * * rule; There is no such ably period many years. This over nor hardly can be. If were, there tome fact has made it more difficult for single adequately prose- trial could .be into my translate in this matter convictions example, cuted. For on charge words. murder, the gun defendant’s is found discharged; this we infer particular the state- I find no fault with he it; discharged and from this we opinion as majority ment of in facts infer that it was his bullet which struck 2,1, points discussing delineated therein in Or, killed the deceased. the de- upon they say 3 and 4 which the trial sharpen- fendant is shown have been do reaching judgment. I its But relied knife; ing a argue from this we processes em- with the mental find fault design upon had a de- to use it majority in at their ployed arriving ceased; argue and from this we that the facts and circumstances conclusion the fatal stab was the result of this clearly by the evi- case as shown this design. In these innumberable specu- dence, conjecture lead daily up instances we build inference lation. upon inference, yet no Court ever say judge arriving They that the trial thought forbidding depart- it. All compelled base in- judgment work, reasoning, ments of all scientific inevitably upon inference which led ference day’s trials, every every day’s life and speculation. We the field said into upon proceed such data.” McNeely, 52 Life Ins. Co. v. York New 948, 955, P.2d that an Ariz. page 208, 111,, on Evidence at Udall section may predicated not an- inference states that: the preceding unless in- inference “ * * * The courts have often been established “to the exclu- has ference formula, that an theory”. mouthed inference reasonable any other sion be based on another some inference. recognized the fact that Court contrary is writers This statement to common distinguished textbook most sense, rejected by contend that is done Arizona of evidence rules justice and that decisions.” practice could actual *9 52
A all the study upon careful of facts and This done advice was Commissioner. 1959, gleaned 25, from the evidence Again circumstances of counsel. on November beyond rea- all question relating in this case convinces me he any refused to answer Brooks of sonable doubt that to such all any questions candidacy or en- 'Tucson a mala candidate in ground was de- that it would tend fides Corpora- tering long grade him, the race for the term and and incriminate invoked for position, protection tion contest Commissioner’s Ari- Art. Section 10 of being waged then before Constitution, A.R.S., which was zona Fifth and T. people appellant and William between and Fourteenth the Consti- Amendments to Court, in (Bill) Brooks. As found majqrity tution of United States. The n effect, political was (Bill) Brooks opinion W. A. concede in a civil action that n unknown. political He for a had never run the above law action of Brooks under the n office experi- previous no He had permits before. the inference be drawn that the qualify him background that ence charged misconduct with he is which is Corporation Commission- any for degree in cases). (citing agree. true With this I responsibility so any office er or only The evidence that Brooks discloses He disclosed. was born evidence far as the speech during campaign made one there all and had farmed Arkansas park made Tucson on La- 1939 or 1940 when around he his life until Day. According testimony bor He lived there for a to California. went spend daughter, his he did not one dime of Arizona then came to where months few money campaign his own he because pro- him and where he joined family spend. have it to She further did not testi- Sign Company Kleiser job cured campaign during fied that he was at to work few months later went then evenings except usual home in as when company Express. This Fruit Pacific for he her would be out for a little mother refrigerator Southern cars furnishes Saturday Sunday evenings; on while cars upon order. The Railroad Pacific that between the time entered race Brooks, in Mr. repaired Tucson. were determine, which, best I could was some- as nearly F. E. working had been Primary and the election he time June 1958 and was at that years in October away were mother for two weeks and her driver. a truck time where, I do not know. She on a vacation — attempt made October An his intention nothing of to run for knew deposition Brooks’ in Tucson. to take petitions were out which until office any questions touch- answer refused to have been in Mr. Buzard’s appears He June. signatures early bore as as around petitions upon his be the it to This April according I believe “Bill”. first of cir- begin daughter, Febbe, all candidates Mrs. Pearl Di who custom they can early as was the member petitions family from their culate whom (cid:127)conveniently information do so. could be extracted. (with circumstances The above facts question The sole for the determination constitutional invoking the (cid:127)exception of of this Court in is, this case therefore who evi- giving protecting provision one procurement instrumental *10 character incriminating dence anof entry of (Bill) Brooks A. the race into standing alone if would not himself) here involved? It logically cannot be ar- n sufficientto establish his of mala fides gued entry that his under a name almost n to- are considered all but when identical with the incumbent William T. eloquently than gether they speak more (Bill) (already Brooks in the opposing race com- They that fact. establishing words appellant sought who displace to him) was candidacy was his pel the that conclusion accidental or incidental. Nor could it be intent, no he had and that good not in faith logically argued that the two names so n desire evidence The hope winning. or of nearly identical running for the same office dis- totally unqualified (cid:127)discloses he was would not tend to confuse the voters at the purport- he charge of the office the duties polls. And I believe per- the inference is edly sought. fectly light clear in the of the mala fides (Bill) of W. A. Brooks entering race, The the race?
Why he enter then did that those who were per- instrumental inescapable de- someone inference is that vising plan conspiracy designed it would be him What suaded to do it. and carried it into execution for the sole him enter purpose having for or motive purpose of deceiving and confusing the infer- particular Again, race ? but one this voters of this State. The significant fact is name can that is that ence be drawn and that W. (Bill) A. Brooks made no cam- Brooks —it Alford was Brooks —William That, paign. doubt, no was it His was job was a natural to be done. planned. say I many dare people did not but appear with name could the ballot even know he was in the race until (Bill) slight variation as William polls, went people It William Bill are the same. who knew Brooks. he had mattered not that back in Arkansas (Bill) William by reputa- Brooks T. by “Sally” been known “Al” or by name of reason of long tion pub- service as a early —an He was childhood nickname. lic officer who were but slightly ac- always by wife, called “Alford” quainted with him did not know which one neighbor next-door in Tucson called him was the incumbent and which not. was The course, (Bill) unity was strength.” that “in setup William A. there is of the name as If the strength unity purpose confused. more is used made confusion Brooks “Bill” an by anyone as immoral or unlawful not achievement He addressed society. danger neighbor. becomes except by his next-door creating this Let us remaining look at facts and profit most Who would be- appellant circumstances of to- Naturally tie them this confusion? opposi- gether appellant’s split the The necessarily it would own conduct. cause majority opinion opponents, Wil- two declined decide tion vote between his (Bill) question (Bill) and William T. whether William A. liam supply good a Brooks I think was a faith candidate. fact alone would Brooks. This falls I is alone have shown But this above he was not. for the motive action. place my necessary view proof a mala fact that far short act, deception, implicit in is candidate an essential de- factor fraud fides case, presence termining appellant. primary issues of the door is, even a conviction whether instrumental necessary motive presence designed pre- a bar violation our law nor is its a criminal case purity con- serve the acquittal. a factor for of elections in Arizona. It is however part of the whole. as a sideration significant It is a most fact that Harold Brassfield, employee when all the however that convinced I am *11 Commission, had tied circulated or circulated of this are and circumstances facts petitions paid containing irrefutable and for over 80 they present an conclu- together 2,000 space names, findings judgment and the for over and of Millard C. the sion Hardin, employee Corpora- amply by evi- also of sustained the the are trial Commission, reported Secretary tion be the judgment should affirmed. and its dence campaign expenses strongly election bring to of State of here mind a Wil- facts The Brooks, in (Bill) Mc- A. the sum a child one of the liam of around as story read I Although a father W. A. Brooks running who called was Guffy’s $600. Readers of his against (Bill) Brooks, William and handed each T. then a together small sons seven appellant, member of the Commission size and told them and to break similar twigs of displace seeking to they easily did. the latter was William them, Then he asked which Neither (Bill) him and Brooks. Brassfield them to T. nor return bound them intended, slight- desired nor had together and handed them Hardin the tightly back them them, hope (Bill) that William A. and them to break not est asked even and elected. The among or strongest them could break could amount of expenses clearly campaign story, moral The of indicated the of bend them. even immediately The appellee as their intent. Counsel for inevitable result as well almost working plain filing after they inference is that were of election contest statement appellant, (Bill) subpoenas had for and William T. take duces tecum issue to deposition Brooks, of the Commission. of then member witnesses Tucson on This clearly produce October 1958, ordering That fact established. them knowledge letters, documents, etc., touching certain not been without could have Eddie appellant. entry and consent of of Brooks into Williams, long corporation Com- member of the term commissioner race. T. also actively appellant. mission, supporting (Bill) These witnesses included William A. Waggoner, Brooks, wife, Pete daughter had instructed Pearl Eddie and Mrs. Commission, Febbe, to Di employee Brassfield, of Harold another Millard C. Waggoner was in Hardin appellant. Pete and support Waggoner. Pete both Brassfield contact close All of the ap- above-named witnesses could campaign and during the Hardin peared lobby of the Pioneer Hotel of their activities know have failed to not p. at around 10:30 m. the evening candidacy. A. Brooks’ behalf of W. They October later retired room T. must that Eddie Williams follows attorney appellant for Waggoner of been informed Senner, (Duke) another member Hard- disloyalty Brassfield and apparent Corporation Commission running for the action The record discloses no in. unexpired predecessor. term of his deceased there- inference reprisal The therefor. Appellant present was also at that meeting approved their action. that he fore Schneier, Ira attorney representing important are circumstances above Brooks, Brassfield and Hardin and they tend show that Williams perhaps exception others. With re- opposed employees to the were these Senner all Mr. remained in the room (Bill) Brooks T. of William election to two hours. one appellant. the election favored morning they appeared The next when relate, my opinion, place designated next time I shall What taking plan, depositions all indisputably into the ties their above-named you conspiracy, witnesses, except appellant or whatever who was agreement (Bill) any questions it, bring. called, William to answer refused to call want entry concerning involved for the William race here *12 into the A. Brooks opposition splitting into said race for vote Brooks purpose appellant’s As stated in calculated result appellant, Commissioner. Court finding of facts in its action concerted election. attempted ground part witnesses that his of such would tend to appellees, interrogated by incriminate counsel him. be upon plan agreed indicated that such (Jack) and who previous night. No upper room present meeting a Pioneer from drawn logical inference can be 1958, Hotel room on 22, October was sub- Appellant present at the facts. poenaed appear 12, 1959, on December therefore meeting night He before. purpose deposition for the taking and in the upon agreed knew what was (and rub” “there is the from his stand- repudiation must of a thereof absence point). testify He concerning refused to The author agreed thereto. deemed to have upon the matters above-mentioned that other opinion majority states ground that it would tend to incriminate drawn been inferences could have protection him and invoked the they example, he said facts. For these provisions of the Arizona Constitution and advice merely following the been later, of the Federal He Constitution. agreed to they Nevertheless, of counsel. witness, cause, the trial of said took counsel whether from advice negative stand answered in three out carried or otherwise questions as follows: morning of the letter on the agreement October “Q. Buzard, you Mr. did person you authorized or know William on November Again anything entry of have to do testify under refused to Brooks Tucson, of Mr. W. A. Ari- above stated the matter as concerning oath zona, corporation into the race for incriminate that it would upon ground during commissioner for term long testify without wife refused to His him. the last election? give it. and he refused his consent ground testify on refused to Brassfield “Q. After A.W. (Bill) Brooks an- him, testimony would incriminate nounced his Corpo- for the appear response refused Hardin personally ration Commission did you contempt subpoena and was held aid assist him his candidacy in non-appearance. Eddie of court for any way? Commissioner, Williams, on the second
T. day of February 1960 invoked the pro- [*] if: [*] [*] sfi “Q. After Mr. W. A. (Bill) Brooks of the Arizona Art. section 10 tection you entered the race did Tucson Fourteenth Amend- and the Constitution any person and instruct authorize the Federal Constitution ment to *13 his candi- It will assist stated, aid or be observed, whomsoever that the above denial way?” any dacy any wrong by appel- in whatsoever lant at the trial deadly is in conflict with fact that the majority assert The the reason he gave refusing answer at stand appellant the witness took any questions deposition when his was out, no pointed testified, as above trial and sought to be taken. He stated there that from drawn can be inference whatever his answers would tend to incriminate him. upon the refusal his earlier questions The on both occasions were of to incriminate might tend ground that it import. identical He was under oath on were of which Citing cases. All him. both say occasions. To that one or the awas them one Missouri and of other of these answers were untrue is a rule a different criminal case to which generous most characterization of the term. applies in civil cases. than If he actually believed that his answers is say this Court majority further covering exactly the subject same matter may court rule that a trial committed to the as that at the trial would tend to incrimi- testimony where arbitrarily reject such him, nate as he testified, then his answers to nothing intrinsic evidence there is questions the three propounded by his coun- circumstances extrinsic in the itself or sel at the trial are bound to be false. The testimony. suspicion upon the cast which two wholly are answers irreconcilable and Therefore, not at the trial court was I do not believe that logically can testi- liberty reject the uncontradicted hold under such circumstances that his mony appellant. (Citing cases.) testimony given at the trial would blot out pointed As be hereinafter out there will the inference of truth of charges made itself, ir- intrinsic the evidence against him. If there are un- are which, contradiction if one was reconcilable worthy recognition by this Court. true the other had to be false. There is In two of the cases cited in the majority also extrinsic in the circumstances opinion the witnesses were motormen for point view, unerringly, my facts which persons the defendants where had been testimony given to the fact killed while the motormen were operating Therefore, trial untrue. cases cited the car. In Masterson v. St. Louis Transit application have no here. Co., supra, the witness claiming his testi- place, respect
In the first
mony might
incriminate him before the
claim that
taken the
having
stand
did not know
coroner
whether he had
testifying
at the trial erased the
justified
infer-
a criminal law and was
violated
charge
ence of truth
his constitutional
invoking
privilege.
him.
Hill
testimony
another
Packing Co. was
and conduct become
v. Missouri
boy.
public
killed
property,
where the driver of
truck
and should
ac-
testify concerning
impeach
him
used
to contradict and
He refused
when
subsequently
whenever
cident for
of self-incrimination
he
takes
fear
he took
When
stand
deposition
taken.
him-
testifies and conducts
behalf of
differently
self
trial
be-
the witness stand
from what
did
happened.
how
Coun-
fore
though
the coroner
defendant he told
his subse-
even
impeach
quent
him
plaintiff
tried to
sel for
a case
given
deposition
give
refused
which
showing he
he is on trial
life or
*14
* * *
him.
might
incriminate
ground it
liberty
the
on
however self-incrimi-
properly
Missouri
Appeals
may be,
his
nating
The Court of
answers
even to the
question.
the
objection to
asking
the
him he did not testi-
sustained
extent
if
fy
resemblance
slightest
differently
not the
That
has
before the coroner or
* *
Louis Transit
my
St.
other
this
In Garrett v.
court.
*. To
mind it
case.
the conductor
Co.,
case where
is an anomalous rule of law that
another death
will
coroner
prevent
the
before
previously
interposing
testified
one from
had
the
questions
personal
con-
privilege
care to answer
he
not
a
that
did
of witness to an-
attorney for
accident,
the
questions
cerning
might
swer
which
incrimi-
to, the
him not
him,
company
permit
had told
a
yet
party
nate
will
defendant
to suc-
to these
objections
object
cessfully
court sustained
trial
the introduction of
**
*
assigned.
testimony
error
questions and
pur-
such
Justice
opinion
writing
pose
But,
impeaching
him.
Woodson
however
have
“clearly Crady could not
may appear,
rule
said:
unreasonable that
compelled
have testified before
definitely
has
settled in
been
this
been
state
*
**
testimony
considered his
he
in the case of Masterson
coroner
v.
if
supra.”
65, 118
him.”
Mo.
Transit Co.
incriminate
[219
zvould
He later
(Emphasis ours.)
S.W. 77.]
case had
appellant
actually
If
be-
said:
deposi-
he refused to
on
lieved when
“ * * *
refusal,
would incriminate him.
tion that his answers
according
That
unquestionably had
authorities,
right
guar-
of the
then he
all
and
reason
right.
ap-
upon
constitutional
If
all of his
stand
witness
con-
to the
antees
self-incrimination if
an-
give
feared
he
rights
pellant
to decline to
. stitutional
propounded
questions
against himself. So it
must
swered
they could not have been
deposition
that when
follow
witness
logically
***
questions
gave
he
to the three
at
testify,
or declines to
answers
testifies
gave at
to do an unlawful act
to use unlawful
trial
if the answers
and
blot out means
an act
untrue, it would no more
to do
which lawful.”
trial were
1959, in invok-
his action of December
plan
I
agree-
therefore believe
protection
section
of Art.
ment
evening
arrived at here that
amounted
provisions
and the
the State Constitution
conspiracy
to a
just
to do
exactly what
blot
would
than it
the Federal Constitution
they
morning
did do the next
and he is
If
yesterday which it occurred.
out the
by it,
bound
and the statement thereafter
it still
true
trial
the answers at the
were
every
present
each and
witness
in the
conflict
constitutes an irreconcilable
have been
and
admissible
each
does
and
not have
evidence and should
every
person present.
majority.
by the
such
as claimed
effect
plan?
Was there a
dic-
Common sense
litigant
permit
party
or a
a witness
To
tates that
meeting
in the hotel
room
question
proper
refuse to answer
attorney
dig-
with William
power
ground strikes
false
(Bill) Brooks,
wife,
daughter
very
heart
nity
our
courts
Harold Brassfield and Millard
Hardin
C.
justice itself.
(employees
Commis-
opinion
states
majority
further
sion) was not an accident.
ar-
plan
appellant with
to connect
in order
ranged.
Manifestly
What
for?
do
Room
Pioneer Hotel
consummated
just
what
all
following
did
do
n onOctober
pres-
1958, prevent
those
every
when
morning
one of them refused
*15
following morn-
testifying on the
ent from
testify
relating
anything
as to
to Wil-
plan (2)
(1)
inferred
must be
ing there
(Bill)
liam A.
Brooks’
for the
Buzard, and
plan of A. P.
it was the
that
Corporation
conceding
Commission. Even
pres-
prevent
those
plan
the
(3) that
arguendo
the
that
rule that an inference
day. I assert
testifying the next
ent
predicated upon
be
not
inference
did not have to
the law. It
is not
this
that
preceding inference
unless such
excluded
He
appellant.
in mind of
the
originate
theory
every
reasonable
as
stated in
vitally
There-
interested.
He was
present.
McNeely, supra,
Life Ins. Co. v.
New York
by him of
repudiation
what
absent
fore
in
instant case
the evidence
met that
night
enough
that
it
transpired there
requirement.
acquiesced in it. Web-
or
agreed he
if
Dictionary, Sec-
New International
ster’s
opinion
majority
The
further states that
conspiracy
as “An
Edition, defines
ond
evidence that
there is no
Hardin and
manifesting
in words or
itself
William
(Bill)
worked for
agreement,
Brassfield
instigation
suggestion
or
Brooks at
persons confederate
more
or
two
deeds
sonably inferred that
given.
if
their
Lewis, Roca, Scoville, Beauchamp &
Frank, Phoenix,
and
Linton
and
John
circumstances stand
The above facts and
Stockton & Aldrich
Robert
Hing,
O.
coupled
and when
relief
out in full
Phoenix,
appellant.
refusing
in
own action
appellant’s
Perry
Perry, Phoenix,
&
Riggs,.
12,
thing on December
the same
concerning
Jacobowitz, Phoenix,
Moore &
appel-
might
that
tend
the ground
lee.
later,
trial,
him and
to incriminate
that he had done
under oath
denying
STRUCKMEYER, Chief Justice.
view,
my
eloquently
whatsoever,
wrong
Pending
determination
this court
charge
made
the truth of
proclaims
appeal
Griffin,
al.,
Buzard v.
et
him in the statement
contest.
89 Ariz.
tradictory statement of fear of incrimina- appeal. reversed on ques- he then answered same if tion has This court reversed and declared tions. *16 duly P. Buzard was elected and qualified candidate for judgment should the office affirmed. of Cor-