15 P. 673 | Ariz. | 1887
Lead Opinion
This was an indictment against defendant, Solomon Barth, accusing him of the crime of forgery of a county warrant, with a count for uttering said forged warrant. Defendant urges as error the refusal of the court to quash the indictment for irregularity in the formation of the grand jury. Defendant was present at the time the grand jury was impaneled, and.given an opportunity for challenge, which he declined to accept, on the ground that he had not been held to bail for this offense, and was under no accusation. Leaving the question whether he has waived his right of challenge, we will consider the alleged irregularity. Section 176, Comp. Laws, o. 11, provides for an order summoning 24 persons, to serve as a grand jury which order was made in this case, and the sheriff returned 24 persons served, and they all appeared. Section 178 provides that the names of persons in attendance be written on separate ballots, and put in a box, from which the grand jury shall be drawn, which was done; but the court of its own motion excused the sixth person whose name was drawn, and this is the error assigned. It does not appear for what reason this juror was excused. To know whether the excuse was justified or not the facts should be made to appear. We must assume, in the absence of the facts upon which the court acted, that the court acted for good reason, and not arbitrarily. Suppose the juror had been deaf and dumb, blind, intoxicated, or for any other reason disabled from jury service, no one can doubt for a moment the power and duty of the court to excuse the juror. The court should excuse a juror for any apparent disqualification, and we must assume that the court acted properly. Having excused this juror 23 persons remained, the number the law provides to constitute a grand jury, and it was organized with those persons. In this it does not appear that the court erred.
It is urged that the court erred in refusing to grant a
Error is assigned in the refusal of the court to grant a continuance. This is a motion addressed to the sound discretion of the court, and for the abuse of such discretion error may be assigned, and the cause reversed. Territory v. Davis, Ante p. — 10 Pac. 359; People v. Francisc, 38 Cal. 183. We do not think there was such an abuse of discretion in this case as requires a reversal. It does not appear clearly that the testimony of the witnesses Lee, Eoff, and Bibo could be procured at a time to which the ease could be postponed. But the fatal error to this showing is that the facts which defendant expected to prove by the witnesses are not clearly stated, nor are they made to appear to be material. In the main they suggest that they will contradict or discredit a witness named Silvers. It is true that an emergency might arise in the trial in which such testimony would be competent. For all that appears in the affidavit, Silvers would admit every fact expected to be proved, and in that case the evidence would be incompetent. Besides, the affidavit nowhere states that the testimony of the witness Silvers, which the affidavit anticipates, is untrue. If true, the proposed evidence would avail nothing. The witness Silvers might be filled with prejudice; might have been hired to remain in the jurisdiction of the court for the purpose of being a witness; might have even threatened to put defendant in Yuma, and yet his testimony be true. This the defendant should have negatived, and shown to the court that the proposed testimony was material to meet false testimony of the witness. By the witness Eoff he expected to prove that the
The evidence shows that a general county warrant was issued to Patterson & Co. for lumber, for $91.24, signed by Luther Martin, chairman of the board, and Charles Kinnear, clerk of the board; that J. B. Patterson, one of the company, took the warrant to defendant’s store, and handed it to Harry Silvers, defendant’s clerk. He had spoken to defendant about it, who told him he was giving 80 cents on the dollar for county warrants. Silvers gave a check for 80 per cent of the amount of the warrant. The check was signed by defendant.
The alleged warrant was offered in evidence, and was for $190, and was the same warrant delivered to Silvers by Patterson. Silvers testified that defendant told him that he expected a warrant from Patterson, and told him to pay 80 cents on the dollar for it, and signed a check in blank to pay for it with. Silvers put the warrant in the safe with other warrants. A few days after defendant asked Silvers for all the warrants, which were given to defendant, and he shortly returned with them, and Silvers noticed this to be for $191, instead of $91, and called defendant’s attention to it, who told him to keep his mouth shut. At defendant’s direction, this warrant with others were sent to a bank at Prescott for discount. Defendant indorsed the warrant. The alterations were made in the handwriting of Kinnear. There was evidence of several other warrants altered in the same way, discounted at the same time. It is urged that the witness Silvers is an accomplice, and that his testimony is not corroborated. Comp. Laws, 344. We think the corroboration is complete. The defendant indorsed the warrant; received the money for the same; false entries appeared in his books as to it; in fact, the whole case together demonstrates that defendant was engaged in a conspiracy to buy and raise warrants. He had corrupted the clerk of the board to aid him, and give the
After a careful examination of the whole case, we see no such error as warrants a reversal of the case. The instructions as a whole, submit the case fairly to the jury. We will notice but one objection to the charge. The court instructed the jury that the law presumes defendant to be innocent “until such strong proof of his guilt of the offense charged shall be adduced as to remove every reasonable doubt of his guilt. A reasonable doubt, however, means a substantial doubt, arising from the evidence, and not a mere possibility of the defendant’s Innocence. If, upon the whole case, the jury entertain a reasonable doubt of the defendant’s guilt, they should acquit;” and refused to instruct that “by reasonable doubt is meant that the state of the case which leaves the mind of the jury in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the
The judgment of the district court is affirmed.
Wright, C. J., concurs.
Concurrence Opinion
I concur; and on the question of reasonable doubt will add that explanations of reasonable doubt confuse more than they make clear. In Miles v. United States, supra., the court says: “Attempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury.”
