185 P.2d 315 | Ariz. | 1947
The defendant was informed against for the crime of misappropriation of public money. The information was signed and filed in the Superior Court of Navajo County by John L. Sullivan, the Attorney General, on March 30, 1945. A plea of not guilty was entered by the defendant and trial of the case was first had on June 18, *147 1945, which trial ended with the jury failing to agree upon a verdict. On November 26, 1945, the case was again called for trial and the jury again failed to reach a verdict. On February 25, 1946, the defendant appeared for trial for the third time and the case proceeded to the point where a jury was selected and evidence was offered by the state.
On the following day, February 26, 1946, the Honorable John D. Lyons of Pima County, to whom the cause had been assigned for trial, became ill and ordered the case continued until March 4, 1946. However, on March 2, 1946, the trial judge entered an order "that due to the continued incapacity of the presiding judge, the order continuing the trial herein to March 4, 1946, is vacated; that the trial of this matter is further continued indefinitely to a date to be fixed by future order of the court, and the jury is discharged."
On September 17, 1946, the order of March 2, 1946, was amended to include the following: "That neither the Defendant nor his counsel are present at the time of making this order but that the Court has consulted the Defendant's counsel, Mr. C.B. Wilson, and has been advised by him that it is agreeable to discharge the jury under the circumstances, provided that consent is concurred in by his co-counsel, Mr. McCauley, or, if he cannot be reached, by the Defendant; that the Court has been unable to reach Mr. McCauley, but has consulted with the Defendant who has advised him that in view of the Judge's illness it is agreeable with him to discharge the jury if Mr. Wilson has no objections. That this order is not entered in open court, but in Chambers, and that the jury is not present and that the Sheriff is authorized and directed to notify the individual jurors not to return on March 4, 1946, as previously ordered. That this order is made in this manner because the presiding Judge is ill; that he has been confined to his bed constantly from February 26, 1946 until noon of the present day; that there is no accommodation in the local hospital and no proper facilities for convalescence at the hotel where he is staying and it is imperative that he return to Tucson at once by reason of his illness, and it is therefore not possible to await the return of the jury or the attendance of counsel so that this order might be entered in open Court in their presence. Approved 9-17-46, John D. Lyons, Presiding Judge."
The case proceeded to trial on the date of the amended order before a new jury and resulted in a verdict adjudging the defendant guilty, from which verdict he has appealed.
Defendant's principal contentions are that the trial court erred: (1) in denying defendant's motion to dismiss because more than 60 days had elapsed since the last trial; (2) in denying defendant's motion to quash on the ground of previous jeopardy because of the proceedings begun on February 25, 1946, and terminating on *148 March 2, 1946; and (3) in denying defendant's motion to quash on the ground that the information was not subscribed or presented by the County Attorney but by the Attorney General without authority of law.
The first contention urged by defendant is based upon the proposition that since the trial, which resulted in a verdict of guilty, occurred more than 60 days after the last trial such lapse of time is in violation of article
The facts disclose that the defendant was not tried within the 60-day period but it also appears that the delay was concurred in by counsel for defendant, who wrote to the Attorney General on May 10, 1946, which was 68 days after the jury had been discharged on March 2, 1946, to the effect that the defendant would stipulate to a trial setting by the presiding judge in his home county, and further indicating that the resident judge was uncertain as to when a jury would be called but had stated that a jury call would be made the latter part of July. This amounted to express acquiescence in the delay beyond the statutory period and authorized the trial judge to set the case for trial whenever the resident judge had a jury available.
The rule announced by this court in the cases of Hunter v. State,
The next contention deals with the plea of double jeopardy. It will be noted that the trial which began on February 25th terminated on March 2, 1946, because of the illness of the presiding judge. It is settled beyond controversy that a jury having been impaneled and sworn and the proceedings commenced jeopardy attaches and, unless removed for some legal reason, the one in jeopardy cannot be again tried for the same offense. However, the courts are likewise in accord that the existence of the necessity for the discharge of the jury removes the jeopardy and a new trial may be had. This rule is recognized in section 44-1932, A.C.A. 1939, as follows: "Re-trial. *149 — In all cases where a jury is discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged from the indictment or information during the progress of the new trial, or after the cause is submitted to them, the cause may be again tried."
The authorities are extensive which hold that sickness of the trial judge is legal ground for discharging the jury and in such case jeopardy does not attach. 15 Am.Jur., Criminal Law, sec. 420; 22 C.J.S., Criminal Law, § 259; People ex rel. v. Barr,
The amended order of September 17th made by the trial judge clearly showed the necessity for discharging the jury and constituted a judicial determination of such necessity.
The order further indicated that the jury was discharged with defendant's consent. The right of a defendant to insist that when the trial has once commenced it shall proceed to a verdict is personal in its nature, being designed for protection against arbitrary and oppressive criminal proceedings, and therefore it may be waived. 15 Am.Jur., Criminal Law, sec. 407.
The third point relied upon by the defendant questions the right of the Attorney General to file the information upon which the defendant was tried. The defendant's position is that the power to subscribe and present an information is solely within the province of the county attorney of the respective counties, and in support of that position he cites sec. 17-902, A.C.A. 1939, which provides that
"The county attorney is the public prosecutor of the county and shall:
"1. Attend the superior and other courts within the county, and conduct, on behalf of the state, all prosecutions for public offenses;
"2. * * *
"3. Draw all indictments and informations, defend all actions brought against the county, prosecute all recognizances forfeited in the courts of record, and all actions for the recovery of debts, fines, penalties and forfeitures accruing to the state or his county;* * *"
and also section 44-705, which section requires that all informations shall be subscribed by the county attorney. *150
The Constitution of Arizona, in article
"1. * * *
"2. Appear in the Supreme Court and prosecute or defend all causes therein to which the state, or any officer thereof in his official capacity, is a party; and when required by the governorto appear for the state or any officer thereof, and prosecute ordefend in any other court any cause wherein the state is a partyor is interested;
"3. Exercise supervisory powers over the county attorneys in all matters pertaining to their offices, and may require of them reports as to the conditions of their public business; and may,when he deems the same necessary, and shall when directed by thegovernor, assist the county attorney of any county in thedischarge of his duties; * * *." (Emphasis supplied.)
This court in the case of Shute v. Frohmiller,
In the light of that decision and the rule of stare decisis it is clear that in Arizona the Attorney General has no common-law powers, and that consequently his authority to sign the information must be found either expressly or by reasonable intendment in the statutory law. It appears from the record that on January 5, 1945, the Governor instructed the Attorney General "to immediately take the necessary steps and institute the necessary proceedings and actions to the end that this money be restored to the public treasury at the earliest possible moment; you are also directed to take the necessary steps to fix the responsibility for the shortage and to bring the guilty to justice."
The defendant contends that the Governor's instructions to the Attorney General did not empower that officer to initiate the prosecution but merely authorized him to assist in such prosecution; and that until the county attorney had been requested to act and had refused to do so, the Attorney General was powerless to proceed with the prosecution.
In our view that position is not tenable. The Supreme Court of Kansas, in the case of State v. Bowles,
The language of the court in the case of Ex parte Kelly,
See also People v. Gibson,
We have examined with care the other assignments of error, in addition to the principal points discussed at length in this opinion, but have concluded that they are not well founded. For the foregoing reasons the judgment appealed from is in all respects affirmed.
STANFORD, C.J., and LaPRADE, J., concurring.
NOTE: Judge Levi S. UDALL, having disqualified himself, the Honorable Gordon FARLEY, Judge, Superior Court, Santa Cruz County, was called to sit in his stead.