*1 253 and that municipality as defined therein dictricts, and flood control age, and authority to enter County was dis- without improvement public levying tax School cooperative with into the contract organized tricts, or hereafter now County involved political sub- District 1 of Pima law, No. be shall pursuant this said null litigation and that contract state, and with vested of the divisions benefits, and void. privileges and rights, all ex- immunities and entitled reached judgment of the trial court municipalities and emptions granted the contract declaring correct result in under this Con- subdivisions
political void judgment and its is therefore affirmed. or any of the state law or stitution dis- States; such but all United STANFORD, UDALL, LA PRADE and pro- exempt from the shall tricts JJ., WINDES, concur. article and 8 of sections 7 visions (As added constitution. of this 5, adopted petition Nov. initiative 27, 1940.)” Nov.
Effective
Assuming that Article Section 7 of effect, does have this what the constitution P.2d 432 district is in no sense A school then? of. Arizona, Appellee, STATE of improvement an district. A word v. corporation organized is a school district POLAN, Appellant. Andrew purposes. Hamilton educational County, 273, 41 Cal. P. 305. Diego San No. 1058. improvement nowhere
An district such Supreme Court Arizona. of the appears in Section 7 Article 28, 1954. Dec. except title nor Arizona Constitution appear district” does the term “school electrical, agri- Irrigation, power,
therein. improvement, drainage
cultural flood improvement may all be
control districts imagina- by no
districts but stretch be held to be an
tion can a school district
improvement tax-levying nor a district
public improvement there- district. We provisions of Sec-
fore hold that under the is not 16-1503,supra, a school district
tion *3 30, 1953,
October defendant Polan and his wife, Irene, engaged common-law in a quarrel which an afternoon and followed drinking. p. evening of Around m. Irene Bak, phoned friends, some Mr. and Mrs. and and her asked them to come take from apartment Van Polan located on West Street, Burén The Baks called Phoenix. they for her and her with took them one, last visited several At the taverns. Buffet, they Seventh Street met de- cedent, Weight. When the tavern Herbert m., at 1 a. the Baks home closed went and Weight. left Irene with Mr. m.,
Some time around a. 1:30 called at the Bak home located on West and where Irene Madison asked was. When Mrs. Bak informed him that Irene com- ing home with a man she had met at a defendant swore and he said would tavern, Raymond Philip Bayham Ruff- and Alan kill man her and the with her. Defendant Phoenix, appellant. steter, wife; away in went search of his re- Gen., Atty. Jones, minutes, William twenty Ross F. turned fifteen or took ap- Atty. Gen., for Birmingham, Asst. compartment T. glove from the of his car, pellee. up again went Bak house. Bak, a
While defendant talked to Mrs. car passed STANFORD, stopped them and the street across Justice. a few houses further The horn of west. appeal judgment from a an the car to it. blew and defendant went over denial of motions to and the conviction He demanding after looked inside and prosecution, to dismiss quash information, there?”, you doing “What the hell are made in con- trial which were for new *4 pulled A Weight from the car. Herbert defendant-appel- the of trial nection with in which struggle between the two ensued degree first murder. for lant to Weight Defendant started was shot. facts, light in the most favor- viewed The upon hospital, dis- Weight the but take to judgment sustaining the verdict to able abandoned both covering that he was below, evening dead, of On the are as follows: days filing driving a from the date of the information few body car was the and the 44-1503, provided Defendant as in Section A.C.A. destination. from his blocks and, ac- 1939. picked up afterwards was soon officers, admitted arresting cording argues the trial Defendant was decedent.
that he had shot the statutory days period started four after the of jury guilty mur- The found lapsed, that at did he no time waive punish- the degree fixed der first speedy right. The motion trial for 5, imprisonment. March at life On ment arraignment, time the filed at the of 1954, judgment rendered and sentence day same on which the trial date reset imposed. February from January 26th to 2nd. are assignments The first and second problem inter- is what crux quash the the to based on of motions denial pretation placed por- to the is be on latter goes information. The first to failure supra. tion of Rule It reads: 289, reporter transcript the court to file of “ * * * brought if he is not to preliminary within examination ten of sixty trial (60) the offense within examination, days after the close of days after has indictment 2, required Chapter Laws Section 67, filed, found pro- the information or 1953, 317, appearing now as Section A. 44— upon ap- secution shall be dismissed C.A.1939, Supplement. The second as- plication person, of such or of the signment goes to the fact that defendant county attorney, or on the motion of requisite preliminary ex- not did receive itself, good court unless cause to forced amination because his wife was to shown, affidavit, contrary or preliminary testify against him at the hear- proceeded unless cause has not 44-503, ing in violation of Sections A.C.A. trial because con- 44-2702, 1939 and A.C.A.1939. of defendant’s sent When good or action. 208, Rule An examination of Cr. shown, may be cause the case con- 44-1005, A.C.A.1939, Proc., Section tinued, in which event the defendant grounds for a motion to enumerates ” * * shall released bail on that neither quash, indicates of above (Emphasis supplied.) provision. is within be grounds further need look no the case we ing that the trial The State contends mo lower court’s denial affirm the act, was reset because defendant’s Dunivan, quash. State tion requesting particulars a bill a mere P.2d Ariz. days The minute entries eight before trial. goes support contention. In view of assignment error the State’s third sixty the statement that he did not right a trial within this' fact, defendant’s *5 258 practice prove the death sixty-day provision, the which de- been better
waive reset, agency connecting and criminal before the fendant made after the trial providing valid to the recognized be as Ill Warren on cannot offense. Homicide, prosecution. 23 (1938); C.J.S., for a motion Section 303 ground to dismiss Law, Criminal § defendant con- assignment In his fourth assignment goes The fifth of error error that the lower court committed tends gunshot the admission into evidence of denying timely requests that the in two patterns on blotting paper white made required an be follow order of State the State’s expert. ballistics Defendant proof corpus de- that would establish the they that contends were immaterial be- prior testimony of licti to the introduction angle cause gun experi- the of the in the of the of admissions. This reversal usual ment not the angle same as the of proof, of it made argued, is defend- order the gun which shot the decedent. appear against to be and order ant law deprived impartial him of a fair and thus principle People set out in v. trial. 1950, DeWitt, Cal.App.2d 709, 220 P.2d 981, 986, provides approach the correct corpus
Because the delicti was problem: to the subsequently proved State, by the our case Turley State, 1936, 61, 74, of v. 48 Ariz. “The rule is well established in this 312, 318, controlling 59 P.2d this mat that admissibility state the of evidence ter. given nature experiment of an
“
within the
*
lies
sound
*
discretion of
* So far as the second ob-
trial,
long
substantially
court so
concerned,
jection
while
would
experi-
same conditions obtain
regular
have been more
to wait until
ment as
original
existed in the
act.
proved
the corpus
after
delicti was
be-
And there is no abuse of discretion
offering
policies, yet
fore
order
it reasonably appears
where
is,
extent,
proof
great
to a
discre-
evidence tends to aid rather
than to
court,
since,
with
tionary
the trial
the jury.”
confuse
subsequent
admission
proved,
policies,
corpus
delicti was
gunshot patterns
were intro
think there
in ad-
we
error
very
duced at
end of the trial for the
policies
mitting
regular
out of the
purpose
assisting
its
jury in
deter
”
* * *
order.
away
mination
how far
the barrel of
Although
prejudicial
there
was no
was from the body
error
of the victim-.
permitting
expert
trial court’s
an
Defendant’s
inversion
had already testified
proof, it
usual order of
would
very close,
the barrel was
have
between
93,
P.2d
inches,
Upton,
time State
body
65 Ariz.
one and two
at
622;
expert
Eisenstein,
State v.
Ariz.
the shot was
The State’s
fired.
inches, 320,
evidence used registration was guilty of tion and that car ment, prove him it was used proper subject We being tried. cross-examination. for he was crime prove do could agree. not Unless State and find the record We have read registration was of defendant’s car as questions either prejudicial error way charge some relevant to alleged insinuations. imprisonments or murder, im- was degree question first convictions has When defendant important an proper. problem not background takes felonies one, however, fact that after in view of the stand, having at the he does so risk of was with- objected, question defendant prior laid be- record convictions of such not constitute incident drawn. This does State, 1923, 25 jury. Hadley fore the reversible error. Ariz. P. questions on matter of comments togo assignments The ninth tenth more serious. defendant’s marital status is un- testimony concerning the admission of the' statement, counsel for opening In his by the defend- related acts of misconduct prove going that he State announced in- the State’s ant. Defendant contends wife Entsminger not the that Irene that the designed show terrogation was objected and of Andrew Defendant Polan. stolen and car driven given No reason was *7 was overruled. lived that defendant had with a woman who why prove necessary to there to was was not wife. In the marriage. no valid cross-examina- dispute no prin There is as to the the asked him tion of defendant State ciples applied. excep to With certain Entsminger whether he lived with Irene tions, past might acts of misconduct which alleged the before Indiana common-law person’s prove guilt to in tend a the case marriage. Defendant was also asked when at are hand not State admissible. v. married, where got ceremony he the took 1947, 49, 64, Singleton, 66 Ariz. P.2d 182 place, church, it was in whether a what 920, specific are acts 929. Nor of mis was, of marriage idea common-law in conduct admissible this state im for license, whether there was whether there peachment purposes. Harris, State v. marriage, the a record of whether 142, 138, 1951, 957, 238 Ariz. P.2d 73 959. minister, preacher there awas or he when Polan, started Irene Mrs. calling and who car, the Taking first matter of the marriage. he told about the argues purpose that defendant interjecting questions The in its State State brief contends that it that necessary.to insinuate defendant had the was elicit the to stolen marital status The State that between car. contends mention of defendant and Irene in order
261 minority of states with the contention that Arizona to disclaim defendant’s prove holding that on cross-examination and to accident homicide was an specific acts of cannot be misconduct motive and intent. shown been unless witness has time he From the was arrested defend- convicted that In crime. other ant that was married to insisted Irene. words a mere accusation of a felonious reasoning In line with State’s is there crime not admissible unless brief, simple marriage fact of this would ” * * * has been a conviction. ample provide evidence of motive. And test used court to this determine attempt prove logically, an no marriage prejudicial whether an error is is: Had prove lack of would tend to motive. committed, probable errors not been is it that verdict might have been different? event, any In we can conceive Singleton, supra. State v. In view of the why validity reason mar of no fact opening from the statement placed have riage should before the the end of the trial State flaunted the completely jury. The matter was collateral. dubiousness of the common-law marriage only purpose It would seem ceremony jury, before point parading the circumstances surrounding at one time there were even snickers from ceremony the common-law would be to courtroom, generally insinuate that the rear of defendant was we feel that qualms jury might immoral have well and hence would no have returned a differ- about killing Weight. ent verdict had the Herbert matter been excluded. The Arizona Constitution guaranteed has had, prior
Assuming that everyone trial, a fair type this ceremony, open the common-law lived in trial cannot be highly had if prejudicial cohabitation with Irene violation of an is matter used to secure a A conviction. statute, justification Arizona there prosecuting officer acts a semi-judicial jury. putting the fact before capacity required principle follow stated, clearly court has very in State v. alone, prejudice. without bias or Walker Harris, supra, 142, at page Ariz. 238 1921, State, 59, 398; v. Ariz. P. 959, P.2d page at the Arizona rule as to Leahy State, Neb. 48 N.W. past acts misconduct: “ ** * majority of courts *8 to The examination relative the common- will allow on cross-examination marriage prejudicial law constituted error witness, specific acts of mis- granted. a new trial must and be by a conduct not sustained conviction Assignment eleven based to be shown which affect veraci- on the re- * * * to ty. But this court has fusal of lower court direct allied a verdict riage jury well might for case. that the have returned the defendant the close of at only ver- The in Rule a different verdict. The different test is set forth used 318, Cr.Proc., 44-1835, that envision is.that on dict I can retrial A.C.A. Section may pen- defendant well receive death 1939: alty. “If, at the of the evidence close evidence all the When the defendant in a criminal case state or at close of opinion cause, veracity is of testifies in his own behalf his and the court credibility may war- insufficient to be tested cross-examina-
that the evidence is may, conviction, and on tion as other rant witnesses are tested. a shall, Witnesses, Am.Jur., direct Sec. 687. motion of defendant acquit jury defendant.” The that defendant testified when he occupied by his into stuck head the car beginning at the facts forth The set Entsminger Irene and the deceased am there was opinion that of this indicate making sexual latter was advances toward The ple conviction. to warrant evidence wife. Defendant wanted the (Polan’s) his de denying lower was correct court He said advantage of the unwritten law. motion for a fendant’s directed verdict. car jerked that from the he the deceased our finding In of reversible error view being on because of these made advances unnecessary assignment it will be to discuss him; “wife”; that his Weight struck twelve, new which was motion for a trial pulled de- (Polan) gun; he out that the verdict was the result ground on the grabbed gun ceased the scuffle and passion prejudice. and discharged. think it was I reversed case remanded for Judgment legitimate cross-examine new trial. where, when, she learn and how became he and going wife. Prior to to Indiana PHELPS, J., and C. UDALL and together Irene had lived here Phoenix WINDES, concurring. JJ., wife, admittedly having man without married, circumstance
been PRADE, friends, most Mr. (dissenting). known to their intimate LA Justice Bak, they Mrs. with whom lived. agree disposition with'the I cannot made county attorney appeal. asked defendant this The defendant received a The married, impartial question got trial and to which the state should fair and when expense objected ground on the that “It has put retrying not be the counsel opinion relevancy this case majority whatsoever”. áre that no. case. . Defendant was objection was overruled. had the defendant not. cross-examined church?”, asked, “In what so-called common-law “Where?”. concerning the mar- then *9 preceding the murder Irene evening given, reason objection, no There was an her her get come and and called Mrs. Bak to then Defendant by the court. ruling and no clothes, her given “Polan had saying that mar- “common-law it was a testified that gate”. with no “by agreement”, riage”, mutual ceremony. After formal and no
license Shortly a murder and within few after the own defendant’s cross-examination this the de- minutes defendant abandoned after explain in detail how counsel had defendant Street, Yavapai at 7th ceased Avenue and they were car in which stopped the he at defendant and Irene were arrested roadside, by and presumably riding, Burén, driving 20th and West Avenue Van quote defendant: exchanged vows. To police car. When accosted defendant’s anything knowing officersdefendant denied ‘Irene, says, you take me as if will “I particular. in killing about and this one a God, husband’, says, I ‘Before your I At time Irene identified herself to the this my you you I have as wife. and love Entsminger”. officersas “Irene way?’, it that and she you want Do ‘ es, way Y want it that but there says, I my In mind this cross-examination was have’, have to she only thing we legitimate one warranted. The and defendant’s ” my ?’ ring says, veracity credibility ‘Where is were issue. The placed jury by its verdict no credence very went to a The cross-examination anything the defendant said. point. gone Had the defendant material Assuming that this cross-examination wife? I think that his rescue his erroneous, prejudicial? was was relationship very was marriage material. legal marriage, a common-law jury If it was did not convict defendant be- inception explained its but had or had cause he not lied about his a proof to establish that common- marriage. This feature of offered claimed the case legal in Indiana. When marriage completely law overshadowed the fact they to Arizona defendant, returned went jury he and Irene believed that the that the on friends, the man, their Baks. De- live with that Irene was with a learning became “they” Bak, told the Baks “I testified and told Mrs. will enraged fendant kill the “marriage”; this Mrs. Bak denied. that with their her”. After this son-of-a-bitch they lived at her home as returned testified motel and She statement they and, learned that were gun flashing wife but she while man secured by overhearing quarrel landlord, a said, presence married of his “I not will demanding that Polan getting Irene son-of-a-bitch”. After get n throughout her marry Mrs. Bak her. within few minutes defendant gun and “Irene” or testimony to Irene as referred Bak residence where like returned While he was wait- were made. p. m. statements At about ten Entsminger”. “Mrs. 26á P.2d street, up and
ing parading down up. drove Irene and the deceased McKINNEY, Petitioner, Garrett thirty after within minutes event occurred pickup stranger. Weight, Irene had met The INDUSTRIAL COMMISSION up Weight drove defendant rushed When Hill, Arizona, A. State of and B. F. F. and, according street to the car across the Nathan, Kleindienst, members and A. R. Ari- said The Industrial Commission of Bak whose narration is follows: Mrs. *10 zona, Respondents. standing just “From where I was Then I heard yanked him out. Mr. No. 5962. him, sorry, say am I didn’t Weight T Supreme Court Arizona. trouble’, want no
know. I don’t Jan. saw the then heard a shot and I man stumble.” evidence,
All the state’s case of jury, shows a clear
believed jury
a wilful and deliberate murder. police officers and disbelieved
believed said, including
everything the defendant the facts his claimed
his recitation of marriage marriage.
common-law
story insignificance into in the face sank lying on the material
all of defendant’s killing and his disavowal
facts of the first anything about when
knowing the cross-
arrested. I can’t conceive of substantially prejudicial being
examination jury two-time loser whom the brand-
to this
ed as a liar and a murderer. constitution commands that crim-
Our upon shall be reversed when
inal case appears
whole case it substantial
justice has done. Const. Art.
Sec. 22. conviction, my reversal of this miscarriage
judgment, constitutes
justice.