Ackerman v. Houston, Civil 3506
| Decision Date | 01 April 1935 |
| Docket Number | Civil 3506 |
| Citation | 43 P.2d 194,45 Ariz. 293 |
| Parties | ABRAHAM ACKERMAN, Appellant, v. CLARENCE E. HOUSTON, County Attorney, Appellee |
| Court | Arizona Supreme Court |
APPEAL from an order of the Superior Court of the County of Pima. Charles L. Hardy, Judge. Order affirmed.
Mr Abraham Ackerman, Appellant, in pro. per.
Mr Clarence E. Houston, Appellee, in pro. per.
In November, 1933, Abraham Ackerman presented to the justice of the peace of the Tucson precinct a criminal complaint charging Mrs. Eleanor Hill with the crime of perjury alleged to have been committed by her while testifying in a case entitled, "Abraham Ackerman v. Southern Arizona Bank and Trust Company," and requested that officer to file it and issue a warrant for the arrest of Mrs Hill, but he refused. Some days later Ackerman took the matter up with the county attorney and requested him to proceed with the prosecution but he likewise declined. So on the 12th of December, following, he filed in the superior court of Pima county a petition for a writ of mandamus in which he sought to have the court issue an order directing the county attorney, Clarence Houston, to file a criminal complaint against Mrs. Hill and all other guilty parties, charging them with the crime of perjury. The court, Honorable Charles L. Hardy, of Santa Cruz county, presiding, the local judge having been disqualified by the petitioner, denied the application and it is from this ruling that the appeal has been taken.
In the action in which the alleged false statement was used the plaintiff was seeking an accounting of the rentals collected by the bank on his property in Tucson, Arizona, during the years 1921 to 1924, and the recovery of a judgment for the sum he claimed such an accounting would show to be due him by the bank, something over $8,000. That action was tried in 1933 and at the hearing a check dated July 28, 1914, and drawn by Ackerman to the order of one Sam Hughes for $1,966, was shown the witness Hill, who was then asked concerning it by the attorney for the bank, whether or not the statement of Ackerman's bank account which she held in her hand disclosed that on July 28, 1924, a check for $1,966 was withdrawn through the account, and to this Mrs. Hill answered, "Yes." The check was indorsed by Sam Hughes, Sr., and had written on it in the left-hand corner, "Paid in full for a lot on W. Congress Street." The plaintiff contends that the answer was not only false but corruptly, knowingly and feloniously so, and given to aid the bank, her employer, in avoiding its responsibility.
In declining to proceed with a preliminary hearing, the magistrate, before whom the plaintiff laid a full record of the case, and in refusing to take the matter up with the magistrate, the county attorney, before whom he also placed the full facts, were both evidently fully satisfied that any misstatement Mrs. Hill may have made concerning the check in question was not intentional but merely inadvertent and the result of a misunderstanding as to the date involved in the question and, therefore, that there arose no occasion whatever to institute a criminal proceeding against her.
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