State v. MooreState v. Moore
Aftеr an extended trial, running more than three weeks in June and July of 1971, the defendant Fierro was either found guilty or entered pleas of guilty to the following charges: Count I, armed kidnaping; Count II, armed kidnaping; Count III, kidnaping; Count IV, assault with a deadly weapon; Count V, assault with intent to commit a felony; Counts X, XII and XIV, each charging conspiracy; and Count XXI, aggravated assault.
Defendant Moorе had either entered pleas of guilty to or had been found guilty by the jury of the same crimes as defendant Fierro, except that in addition he was found guilty of Count XX, felon in possession of a pistol.
Each defendant was sentenced to concurrent terms which were to run consecutively to sentences in other cases. Defendants raise no issue as to the sentenсes other than the application of
The factual situation involves an attempted jail break at the Pima County Jаil. A number of prisoners, including the de *406 fendants, were participants in the attempted break. The victims in the alleged offensеs were deputy sheriff jailers.
The defendants have raised some five issues on.appeal, the first of which questions the jurisdictiоn of the Superior Court to try the defendants by virtue of the preliminary hearing procedure followed in this case. The prеliminary hearing was started before a justice of the peace who, prior to the conclusion of the hearing, commenced a term on the Superior Court to which he had been elected. With an intervening delay, the preliminary hearing was completed before the Superior Court Judge who had commenced it as a justice of the peace. The judge purported to sit as a “Magistrate for Justice Court No. 4.”
Superior Court Judges are clearly empowered tо act as magistrates. State ex rel. Corbin v. Murry,
The dictates of economy of judicial time commend the procedure followed and we find no legal impediment thereto, nor have defendants showed any prejudice.
The defendants next сomplain that the trial court admitted evidence of other unrelated criminal acts of the defendants. Although conсeding that the admission of one felony, i.e., having been convicted of crimes of violence, was a necessary element of one of the charges against each of the defendants, they contend that a showing of multiple convictions, however, was error.
The state contends that the introduction of evidence of conviction of multiple offensеs shows motive for the attempted escape. It would appear that defendants had little to lose and much to gain if the escape effort was successful. The state cites State v. Turner,
The defendants next contend that the trial court erred in shackling all of the defendants in the course of the trial. Aрparently during the trial an inmate of the jail reported that the defendants were planning an escape. The cоurt interrogated this inmate in camera. The defendants admitted their discussion of escape to their counsel but said it was all in the nature оf a joke. The judge further had received information that the defendant Fierro, on a previous occasion, had appeared in court with a pistol concealed and strapped on his leg.
In light of the previous indications of the defendants’ violent and lawless natures, and the fact that they were being tried on allegations of serious and violent crimеs, we cannot say that under the circumstances the trial judge abused his discretion in having the defendants shackled. State v. Robinson,
We do not believe that Illinois v. Allen,
As a fourth contention, the defendants argue that the prosecutor, Hortоn Weiss, was guilty of unprofessional and improper conduct amounting to reversible error. This is not a new or novel question for this court as it has been raised in numerous cases which have been prosecuted by Mr. Weiss. As we stated in State v. Moore,
The final point raised by defendants is the trial court’s application of A.R. S. § 13-1641. Defendants contend that the state should have been required to make an elеction with respect to several counts charged in the information.
The state contends that it was proper for the court to submit each count to the jury because there was at least one different element involved in each offense charged. The state further asserts that the holding of State v. Hunt,
The crux of the matter as it relates to
In order to avoid the problem of double punishment, the trial court refused to impose sentences on Counts V, XII, XIV, and XXI. We are not convinced of the merit оf defendants’ argument that each defendant can be found guilty of only one act of kidnaping. The jury found that the defendants hаd kidnaped the five different individuals. The kidnaping of each was a separate offense, although part of the acts may have been committed together. The trial court’s action in refusing to sentence on certain of the counts cured the aspect of double punishment.
Judgments of ' conviction and sentences affirmed.