*1
not base opinion is not
alone, especially when such . Hemphill
supported the evidence Commission, supra; McAllister
Industrial Commission, supra; Tashner
v. Industrial Commission, supra. In view
v. Industrial concerning condition of facts not that it we think neces petitioner, do thirty per “a
sarily cent dis follows hip per amounts to a ten cent
ability hip since the is one-
disability leg 23-1044, leg.” entire
third requires compensation B
subd. leg loss use of a be based partial use.” evidence in “loss the finding substantiate
record to the percentage the Commission petitioner’s leg. It in of use
loss disability greater. much
dicates aside. is set award BERNSTEIN, J., C. C.
CHARLES J.,
UDALL, Vice C. STRUCKMEYER LOCKWOOD, JJ., concur. *2 Russin, Barber, and Robert
Alexander
O.
Tucson,
appellant.
for
Pickrell, Atty. Gen.,
Robert W.
I.
Jack
Podret,
County Atty.,
Sidney
Pima
L.
Kain, Deputy County Atty.,
appellee.
BERNSTEIN, Chief Justice.
appeal by
This is an
Richard Shaw from
grand
conviction
the crime of
theft.
The evidence
at the
adduced
trial showed
the following
During
evening
facts:
September 11, 1961, two officers of the
*3
County
Pima
Sheriff’s office were driving
investigate
in an unmarked car to
an occur-
rence unrelated
this case.
they passed
to
As
equipment yard
the fenced
of the Burris-
Company
Machinery
they
White
observed
parked
automobile
at the side of the
micro-midget
road with a
racer protruding
compartment.
from the trunk
One of the
occupants of the automobile was motioning
past
traffic on
road to
for
drive
parked
slowly moving
automobile. The
officers made a
to investigate
U-turn
drew abreast of the automobile
spotlight on
flashed
its occupants.
their
The automobile drove off at high speed and
chase ensued.
chase,
During the
the racer fell from the
Shortly
trunk
automobile.
there-
which
tend-
automobile
istence of
like nature
after the officers discovered the
facts of
de-
however,
Here,
ed
empty
in an
The officers
to show
abandoned
lot.
bias.
by
Brown,
these facts
sought
establish
registration
Joseph
fendant
traced
evidence,
custody.
subsequently
the introduction
of extrinsic
took him into
part
by
rather
than
cross-examination
taking
admitted his
the racer
He
desired
implicated
the witness
bias
yard
from the
whose
Burris-White
question wheth-
show. This raises the
Ronald Alkire and the defendant.
er a
introduction
foundation
for
pleaded guilty
charge
Brown
of a witness
showing
evidence
bias
accessory after
fact
crime
cross-examining
must be laid
first
theft,
grand
suspended
and received a
sen-
court,
the witness
This
himself.
Alkire and the defendant were
tence.
P.
Ross
Ariz.
of grand
tried for
crime
Alkire
theft.
discussion,
adopted,
without extended
acquitted
granted
and mistrial
as to
majority
rule that
a foundation
aAt
the defendant.
second trial defendant
required.
opportun-
We have taken this
guilty and
appeals.
was found
now
case,
ity to re-examine the
ruling
and now
minority
reaffirm it. A
Defendant assigns as error
(see
courts
(1922))
Annot.
A.L.R.
court’s refusal to
into
trial
admit
evidence
necessary
hold
it is not
to establish’
entirety
its
defendant’s Exhibit
Ex
A.
a foundation for
evidence
bias
extrinsic
of a
A consisted
confession signed
hibit
by cross-examination. Some draw distinc-
appeared
Brown who
Joseph
as a state’s
tion between statements showing bias and
portions
trial. The
witness
Shaw’s
ex
bias,
showing
acts
and require a foundation
consisted of
cluded
statements
the wit
only in the former case. We think this
ness
committed' crimes other
distinction too tenuous to be material. One
one
he was
than
.arrested.
purpose of the foundational cross-examina-
argues
The defendant
that Brown’s admis
give
tion is
the witness a
opportunity
fair
other crimes
dependent
him
sion of
makes
explain
which,
alone,
statements
standing
leniency of the
upon the
law enforcement
bias, People
tend to show
v. Sweeney, 55
*4
he
testifying
for whom was
in this
officials
27, Cal.Rptr. 793,
9
Cal.2d
Ariz. at 352 P.2d he was The defendant contends questions response to which per- cross-examination improperly limited in his testified witness mitted case in the excluded Brown as the matters investigating had he was no relation- further contends Exhibit A. He portion of Shaw, charge against ship to the and that cross- improperly in his he was limited knowledge of prior impending no concerning witness another examination attempt take the racer the Burris- time at the appearance defendant yard. The defendant made no offer White confession, during hearing made oral expected proof what he to indicate on the voluntariness the court before An disclose. absolute questioning to find are unable to confession. We proper cross-examine “within the bounds” testimony place where record fishing not license the defendant for a by questions of matters elicited these completely expedition, into irrelevant matter. excluded counsel' and defendant’s next assignments are without The defendant contends that These
court. trial, considering court erred in merit. *5 officer, pro- pro- peace the other than in defendant’s conduct officer, child under who arrests a bation nouncing sentence in violation years forth- age 8-228 which states: shall eighteen the officer, and the or of disposition a child The “B. child the disposition of shall make such court the given evidence in as the probation officer directs.” as evidence not be shall admissible proceeding the against child taking the surrounding circumstances * * court, another these : n defend- of the confession were the Defendant brief states at at ant was officers picked up by two the trial court pronouncing time of sentence These his home a. m. about 12:30 1:00 report Probation received a the Adult their officers and had Alkire Brown County Officer Pima which contained custody dressed time. Defendant complete ac record of the defendant’s agreed go and officers with the tivities as a offender. He further During sheriff’s ride office. a transcript states that court’s com complained sheriff’s office the defendant clearly sentencing ments on will reflect stopped and car was nauseated upon considered and relied up so he could throw outside report How setting sentence. it would car. then Defendant indicated ever, transcript part no such made a was up to throw be some time before he had appeal. of the record on We therefore sheriff’s proceeded group question consider the this use of questioning office. The officers commenced appropriate records not answer left was Alkire and Brown and defendant state of record. in the Statements to sit in an outer office. The defendant briefs do not substitute for evidence in the twice to take him to asked officers record. Hunter v. 43 Ariz. hospital complained that he had ; Thomas, (1934) P.2d 499 cf. State officers sick. One of the and was “shakes” 124, 302 Ariz. P.2d 261 aspirin gave them to obtained two assigns The defendant as error the fail- told Defendant testified he defendant. the trial exclude ure of court to evidence up, that he again had to throw oral confession made defend- to a rest room where directed was to the officers after he ant accomplished. took Defendant up by picked them. He contends that stated: stand and during a period confession was obtained “Well, me to get at first tried to violating the officers when A.R.S. § I told I wouldn’t. it. them admit to 8-221: he’d take me to Mother me in the either they just And let sit out so sick, feeling or the Higgins [juvenile kept getting office. home] hospital. right.” worse, And he said all and I thát I didn’t told Bernal me please good feel take would Each of the officers stated he can’t hospital. says, T And he him promised threatened defendant nor *6 anywhere you hospital take or leniency if statement. he would make a out statement get until some kind I the Mother defendant was taken to up you.’ go But he he would said Higgins o’clock Home about to 4:00 3:30 get aspirin. and me some a. m. to three During the two and a half ****** custody hours the defendant inwas they “Q they you Did were tell what attempt sheriff’s no officers ? charging you with they to call a officer because necessary.” “didn’t think it was they “A No didn’t. Dunn, anyone,
“Q Did either Officer inspired The philosophy which crea Russel ever ad- Bernal or Officer court, tion of juvenile and statutes- you you being vise what it, implementing recognizes, the state charged with? in majority of cases anti involving they didn’t. “A No social (including behavior criminal offens es) part offenders,, youthful “Q Did these officers ever one of there is responsibility op both a and an say you being placed are you portunity state, through special charged under arrest and treatment in a proceeding, non-criminal to- with a crime? and young people- redirect rehabilitate these “A No. operates This for the benefit of indi you “Q Did Officer Bernal ever offer vidual, society and for as a whole. How leniency you if would admit ever, states, many Arizona, as in it is- any alleged crimes participating in recognized also there are certain in evening? dividuals still the chronological within clas Well, finally got I felt so sick I juveniles, sification as special for whom this pass I going like was out. So treatment juvenile futile. The court I’d told Bernal that admit it if therefore refuse to juris- continue its officers 1. The knew' all at had a asked warrant for his ar juvenile. They replied that Shaw was times Shaw’s rest. did not need juvenile. testified father that when the ar 'officers he one as was a pick Richard, up (the father) rived .to special begins these need for treatment cases, may remand diction in such instant is contacted proceedings regular individuals for Arizona, peace recognized this was criminal Under the law court. legislature. few of the treat- exclu- hours court, has until the ment hard- children sometimes accorded mature and delinquent jurisdiction sive of all give impressionable con- ened crime,2 criminals can has children accused youth warped the mind of a indelibly view the matter and decided sidered its society will particular who interest in him. is not one individual treatment, a child special benefit from its youthful That the offender stands before jurisdic- offender remains in the interrogators posi different tion. occupied from that crim the mature inal recognized. Oklahoma, confes ju While under sions of obtained in the absence dis risdiction, is under certain a child parents or guardian in or counsel are isHe attaching to an adult.3 abilities not evidence, admissible in such defend because bail; not released on entitled incapable ants are waiving deemed con right by jury, of trial stitutional statutory safeguards, unless *7 the at compel process compulsory of to appears beyond it a reasonable doubt guar on his behalf tendance of witnesses the minor fully offenders understand in crim by the Arizona Constitution anteed effects waiver, of such a Olivera v. some compensate for To prosecutions. (Okl.Cr. inal 354 P.2d (1960)). 792 disabilities, statutes (cid:127)of these Quite recently the Supreme United States officer probation provide that the Court held that the admission evidence into n shall behalf,4 representative his a act as a a juvenile of confession of obtained dur- by peace if he is a arrested and further period day a five when he had seen no n officer, officer “shall forthwith such friendly process adult violated due stand- officer, make such and shall probation ards, although boy informed been (cid:127)disposition of as counsel, right although of his and 5 n officerdirects.” by confession earlier was corroborated 6, 15, ac welfare unless immediate § Art. A.R.S. or morals Const. Ariz. Moreover, 2. may by any taken,” 8-221, A.R.S. subd. § be arrested B. he is 3. 8-204, only violating C, subd. “He shall: 1. peace if he is § neglected, “reasonably law, interests of if he is be after but Look dependent fugitive parents delinquent children a from bis be lieved ”* * * “surroundings county. justice,” or if bis or endanger health, 8-221, subd. his § 5. A.R.S. A. are Colorado, statements, Gallegos may only swers used not before State be specialized L.Ed.2d a crim- possibly U.S. S.Ct. court but subject recognized inal been text on court. has child Where a officer, questioned delinquency states : police a alone - opportu- without having given an been presumed "Because of the im- child’s nity par- presence to secure his maturity, special be should safeguards ents, guárdian, counsel, his state- or police inter- around a thrown officer’s ments should be such interview a child a view presumed induced either to have been situations, delinquent act. In certain immaturity child’s or depending age child on only idea that in the would (cid:127) used be committed, to criminal the act waiver specialized should, court and possibility. may Moreover court be n therefore, presumption is unless the interview, it is not at the time overcome, be excluded from admission spe- whether or not the known n cializingin children’s before criminal court in which the retain cases will Glueck, child be a' defendant.” petition if a over the case jurisdiction p. Delinquency The Problem jurisdiction its filed,- will waive publication (quoting from a tried in the child be permit the U. S. Bu- Government Children’s Therefore, it cannot criminal court.. reau.) inter- police always be assumed that the only a noncriminal will lead
view Unquestionably, purpose of A.R.S. proceeding. 8-221 was alter usual method of interviewed, the child
Before
suspicion
handling persons
arrested
parents
be informed
and his
should
investigation of criminal activities
when
present
legal
to have
counsel
Moreover,
persons
juveniles.6
are
it
those
questions if
refuse
to answer
apparent that
this alteration
methods
so
should
decide.
cases where
he
to protect
intended
interests
possible,
also
waiver
should
rather
than to
facilitate
answers,
his an-
major
cautioned
investigations.7
Since
feature
*8
transported
8-221 was
company
§
not
intended to ac-
in
6. A.R.S.
with
adults
segregation
complish
charged
of
with
convicted of crime.”
problem
offenders
detention
facilities.
adult
are aware of the
We
confront-
purpose
ing
is effected
8—
A.R.S. §
This
law enforcement officers in their
in-
226,
vestigation
B:
subd.
of a crime when
have
child, pending
hearing,
good
apprehended
shall not
reason to
believe
cell,
placed
apartment,
place
juvenile
in an
be
involved
On the
therein.
one
confinement,
hand, they
room or vehicle or
of
are anxious to obtain informa-
per-
newly
probation officer,
arrested
such officer shall “forth-
of
treatment
the usual
one of
probation
with”
interrogation,
it follows
officer and follow
sons
protect
disposition
to
8-221 is
instructions for the
of A.R.S.
purposes
§
this
of
“immediately,
effects
“Forthwith”
the adverse
child.
meáns
juvenile from
delay, promptly”,
without
Harbel Oil Co.
procedure.
Steele,
v.
80 Ariz.
Because
dence.
effort
conscious
necessary
explain
ruling,
feel it
we
advantage
delays
take
of unavoidable
position
nowwe
take. A.R.
some detail
probation officer,
contacting the
by sub
requires
following
the arrest
8-221
S. §
by an officer
other than the
jecting
interrogation,
of a
is con-
by interrogation
concerning
inducing
con-
statements without
real
sure
may
understanding
legal rights.
which he
have with the
of his
nection
advantage
crime,
know the
of con-
as extreme a rule as
is not
some
8. This
interrogation
ducting
adopted
before the sus-
have been
enforce the
pect
provisions
has had time
dissemble after
re-
statutes.
Cf.
hand,
Cochran,
(Fla.
other
On the
must
131 So.2d
flection.
Willis
ordinarily
notify parents
1961) (failure
charge
the factor of im-
realize
maturity
greater
required by
against
induces
sense of fear
statute
conviction).
insecurity
part
juvenile,
of a
to invalidate
held
pres-
amount
unreasonable
*9
duties,
tainly
spirit
proper discharge
in the
of his
A.R.S.
trary
policy and
by
the latter
in
acting
would not
the interest
obtained
be
8-221 and statements
§
juvenile
merely by
of the
society
or of
procedure are inadmissible.
preventing
interrogation
could
—he
cases in oth-
distinguishable
We consider
only prevent
pressure.
should
overzealous
held that a
which have
jurisdictions
er
interroga-
present
In the
case the
of detention and
defendant’s
period
short
statement
period
to a deten-
was obtained
prior
taking
juvenile
when
comply
no effort was made to
with
(where
governing
statutes
tion home
not A.R.S.
8-221
“didn’t
immediately) was
because the officers
required .he be taken
§
necessary.”
think it
controlling stat-
Under the rule
policy
The
illegal.
expressed
herein the admission
this con
toward
utes in those cases was directed
of-
fession
error.
adult
segregation
from
policy
expression
statutory
of a
fenders.
judgment
The
the case
reversed and
effects
protect juveniles from the adverse
remanded for a new trial.
not a feature
police interrogation was
Smith,
See,
g.
e.
State v.
these cases.
STRUCKMEYER,
JENNINGS
Harper
(1960);
was plied.) September m. m. to 3:30 a. about 1:00 a. In support position majority of their the his deten- 12, 1961, the time of during and cites the case of Olivera v. (Okl.Cr. State voluntary state- made a defendant tion the 1960), 354 P.2d proposition 792 for the that al- the participation concerning his ment “confessions of obtained in the allowed crime which the lower leged parents of guardian absence or counsel defense of objection the evidence over evidence, are inadmissible because such the officers that The facts show counsel. incapable are defendants deemed waiving of defendant the threaten or coerce not did and statutory constitutional safeguards.” they make did making the statement nor into support But rather than position the taken induce- a matter of to him as any promise supports majority position the it the I The said statement. make for him to ment urging. am I page opin note on 794 of that of that one evidence gave some defendant ion that failure to advise a of them give if he would said officers the prior questions rights his answering hospital. be taken would statement officers was testimony the be considered as of “should affecting the the However being judges the admissibility otherwise, jury the of and statements made issue in favor of purporting this him resolved fact confession of the defendant. against guilt.” the state sig threats, promises, intimidation, are case the facts Oklahoma In * * * page quote nothing 794: “The There I abuse. nificant. proof supports as to offered no that case defendant’s State’s defendants involuntary contentions, except they character were 17 contention age. confessions, opinion years and the We are of the contention by promises standing alone is were obtained fact not suf- contrary, To the to void a confession when officers. ficient the same clearly validly law.” established made under the only voluntarily not case before were Such is us. fact confessions made, were not result officer not that a was contacted but voluntarily say 17-year-old boy not
It does that it will bar the admission case where con- short and in that case the made a two (cid:127)of the confession confession Supreme period. one-half hour fession was admitted and error held harmless error if (cid:127)Court was by majority final relied case at all. State, Ala.App. the case of Felder v. surrounding opinion tak- my this old The circumstances So. including support ruling case from Shaw confession as- majority. arresting the fact that the There involved parents years age that the a female child 15 and in cross- work and signed deputy time present defendant were examination the sheriff who had the custody the reasons the arrest and were told testified as follows: custody taking the defendant into were for “Q you any promise Did make an the trial court. In the absence before her? discretion, least shown or at abuse sir, Yes, her, I told I said: ‘You abuse, conclude the court we should got ring, I know If it. felt the facts and none all considered you up give ring, don’t me enough to bar admission of the compelling you might go off confession. get it. you ring, If me the *11 Gallegos Next case of State of you juve- will turn over Colorado, 49, 1209, L. 370 S.Ct. 8 U.S. 82 people’ nile she went —and (1962) support is 325 cited in Ed.2d got around it.” the house opinion. Again disagree I majority apparent statement, It is that this made by the opinion handed down the divided custody, in his the officer while the child was authority ruling for Supreme Court threatening, a was coercive statement majority making are this since in case Supreme unquestionably Court was entirely dissimilar. There the are the facts voluntary. in out ruling it as not years age 14 had was involved child days recognizes which time during majority held five that the for The extreme- been parent, lawyer, adopted opinion no other friend ly rule in the saw liberal will was A conviction reversed adhere ly adult. difficult to in rural coun- Supreme split pertinent but in a de Court It is S.- ties of Arizona. note that the U. vastly This four three. 12 14 10 to of the counties of have cision state probation officer, only the facts involved in this one many from and in different anti hours after than two one-half to void a confession when the sooner same is “standing validly not sufficient arrest alone is made under the law.”
53 impossible interpretation be almost situations it will “forthwith” term pe- a probation contact bar there officer within circumstances of the case day. law How- riod of even a several hours or seems to been violation no ever, opinion for the tone of take it from defendant holding mere of the half, early voluntary dur- only during statement was two and a hours other time the statement be ad- morning would hours the officers while This missible. matters attend. to which had to complying delay was not an unreasonable ad It is must be fundamental the law provisions with the of the statute. uniformly in the counties ministered all of inter of the state and the law should not be One held arresting officers who special preted put emphasis on a 1 to so as defendant at the office sheriff’s interpretation constitutes strict as to what 3:30 a. m. had not contacted stated Maricopa County as a reasonable time because during period county. distinguished from a rural The necessary.” “I didn’t think it was crux of the case whether the did majority on this makes inferential comment report pro “forthwith” the matter to the fact. The not disclose nor did record does expression has been bation officer as attorneys question either of him as to 8 Applying interpreted by courts.2 necessary. why he think it didn’t involving court, only length 2. This civil case no tnean unreasonable authorizing perform- of cattle statute by seizure shall intervene before time purpose determining inspector Ball, 351, 255 121 ance.” State v. N.C. .title, (1961). the term defined “forthwith” 604 S.E.2d regard Smith, used the statute 32 161 In State v. N.J. A.2d report inspector (1960) time the should in which a confession superior period clerk seizure to the taken from a illegally as follows: to have in which he claimed been page detained it was said at “The word ‘forthwith’ mean A.2d: any particular time, within tially but substan- “ * * * speed with as much as is reason- e do [W] not conceive that ably possible under 6:8-3(b) (c), speaking the circumstances R.R. McEuen, of the case.” State v. 42 Ariz. has who taken a an officer into 385, 397, process 26 P.2d custody making without ‘immedi- Bell, F.Supp. arrangements’ See United States v. to have him ate removed place approved in which the Federal District in an to his home de- Court, District, California, requires facility, Southern used that such must tention necessarily the same definition in a criminal action. *12 be done before action in opportunity criminal North Carolina a reasonable are afforded recently as gard as 1961 question, it was said re- where that course is de- meaning important." (Emphasis sup- of the terms “forth- sirable “immediately”: plied.) with” “Such never terms mean the absolute time, exclusion of interval of but busy record were shows both prisoners
questioning who the two adult
were arrested at the same time as
juvenile, and it is con- more reasonable to
clude that it was didn’t think officer
necessary night at that hour —when busily discharging engaged
their duties —than it conclude that is to
were deliberately acting in defiance of Every
law. presumption should be duty,
in favor of an discharging every testimony inference from the given
should be integrity maintain Superior Court, the officer. Lorenzen v. Cal.App.2d 506, 310 P.2d judgment should be affirmed. P.2d RAYBURN, Appellant,
Hazel M.
STATE of Arizona ex rel. William E. WILLEY, Appellee.
No. 7257.
Supreme Court of Arizona.
In Division.
Jan. 1963.
Rehearing Denied Feb.