Argetakis v. State

• Decision Date: 25 January 1923
• Docket Number: Criminal 500
• Parties: GUS ARGETAKIS, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

212 P. 372

24 Ariz. 599

GUS ARGETAKIS, Appellant, v. STATE, Respondent

Criminal No. 500

Supreme Court of Arizona

January 25, 1923

APPEAL from a judgment of the Superior Court of the County of Maricopa. A. G. McAlister, Judge. Affirmed.

Mr. F C. Struckmeyer and Mr. Clarence E. Johns, for Appellant.

Mr. W J. Galbraith, Attorney General, and Mr. George R. Hill and Mr. Wm. A. Harkins, Assistant Attorneys General, for the State.

OPINION

LYMAN, J.

In a joint information, this appellant with one other was charged with an attempt to cheat and defraud by means of a trick or device known as a confidence game, a felony. Both were convicted in separate trials.

Appellant bases his appeal upon five assignments of error, the discussion of which can be more logically developed by taking up first the fifth assignment, which is as follows:

"The court erred in overruling the objection to the following questions: 'Q. Now I want to go into the matter, Chief Brisbois, as to whether at that time such charge had been made upon a reasonable cause? And to that end, I will ask you to tell what had been reported to you, and from what source and to what extent you had been following the matter up?'

"Mr. Struckmeyer: 'If the court pleases, that certainly is objectionable. It calls for hearsay of the worst kind; in fact the very question is but requesting him to relate hearsay evidence.'

"The Court: 'As I view the matter, Mr. Struckmeyer, that goes to the very essence of the proposition. The objection is overruled; it may be answered.'"

Upon the trial of appellant, his counsel, by cross-examination of witness Brisbois, chief of police of the city of Phoenix, under whose direction appellant was arrested, disclosed that the arrest was made and certain articles taken from appellant's room without warrant of arrest or search-warrant. This cross-examination was followed by a question asked by the county attorney of witness Brisbois, objected to by appellant's counsel, and the overruling of that objection forms the basis of this assignment. The witness by this question is asked to disclose upon what authority the arrest was made, and the articles sought to be introduced in evidence were taken possession of.

The statutes of Arizona provide that an officer may without warrant make an arrest "on a charge made upon a reasonable cause of the commission of a felony by the party arrested," or "when a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it."

An issue having been raised as to the authority for the arrest and seizure of appellant's property, the county attorney sought to discover upon what authority the officer had proceeded in the premises. Objection to this question is based solely upon the ground that it calls for a hearsay statement. The information upon which a peace officer is authorized to act without a warrant may be acquired either by personal observation or by statements made to him by others. Neither by statute nor by common law was the officer required to act only upon his own observation. In fact, the very terms of the statute, "on a charge made," indicates that the officer is authorized and required to act upon information furnished him by others. The question is not whether the charge made or the information conveyed to the officer was true, but whether or not any charge was made or any information conveyed to the officer, and, if so, what that charge was, and what that information consisted of. The thing to be proved was the information or the charge, and what that information or what that charge was.

The best possible evidence concerning that was the testimony of the officer as to what he had heard and seen, whether what he had heard consisted of spoken words or of anything else. The ultimate test as to whether or not a statement is hearsay is whether the witness may be cross-examined concerning the fact about which he testifies. The question here was whether the officer had heard, and what he had heard. As to both those things, he was subject to cross-examination. He could not be cross-examined as to the truth of the information received; but that was not the fact to be proved. The basis of the officer's authority was not the truth of the charge, but the fact that the charge was made. It is not that the person sought to be arrested has committed the felony that is under consideration; but that the officer had reasonable cause for believing him to be the person who committed it. Paragraph 854, Pen. Code Ariz; People v. Wilson, 117 Cal. 688, 49 P. 1054; Lees v. Colgan, 120 Cal. 262, 40 L.R.A. 355, 52 P. 502.

Appellant's first assignment of error is not urged.

Assignments 2 and 3, presenting to some extent the same questions of law, are discussed together in appellant's brief, and will be so treated here. These assignments are as follows:

"Assignment 2. The court erred in denying the petition for restitution of property.

"Assignment 3. The court erred in overruling the objection of the appellant made during the course of the trial, as follows:

"Mr. Struckmeyer: 'Now, if the court pleases, I desire to object to the witness testifying not merely to the introduction of the exhibits in evidence and its use, but I desire to object to the witness testifying of and concerning anything seized without the necessary predicate therefore being laid, namely, the obtaining of a search and seizure warrant, or the witness testifying to any knowledge concerning the things seized without a search and seizure warrant, and knowledge gained by him in the unlawful act, and this, if the court pleases, I contend is one of the things he is now interrogated about, now questioned about, knowledge gained by him in the unlawful act.'

"The Court: 'The court overrules the objection' -- and erred in receiving in evidence the various exhibits in this case so obtained, and receiving in evidence testimony, the knowledge whereof was gained by unlawful search and seizure."

The record discloses that the police officers of the city of Phoenix who made the arrest of appellant in this case had information that an attempt had been made by appellant to cheat and defraud by the use of a small black box, which he used and exhibited as a means of effecting the crime, a felony. Acting upon this information, the police officers went to the lodgings of appellant, knocked at the outer door, and were admitted by appellant's codefendant, who was immediately placed under arrest. The adjoining room, communicating with this by double doors, and occupied by appellant, was next entered by the officers after knocking and getting no response. Appellant was not found in the room, but shortly after, and during the same visit, he was arrested within the same building, brought into the room, and, along with the black box, which was there found, and some other articles used in connection with it, taken into the custody of the police. The box was found inclosed in a suitcase. Other articles were taken from various pieces of furniture.

Before the trial, appellant applied to the court for the restoration to him of the black box and the other articles taken under the circumstances just recited, upon the ground that the property had been taken from appellant without search-warrant or other authority. This application was denied, and the denial forms the basis of the second assignment of error.

Upon the trial the black box and the other articles used with it were offered in evidence, together with testimony concerning the place and circumstances of their discovery at the time of the arrest. All this evidence was objected to upon the ground that the articles offered in evidence were the property of appellant, and had been taken from him without search-warrant or in other lawful manner, and the objection overruled. This ruling is assigned as error numbered 3.

Two questions are suggested by these assignments, considering them together: Did these articles come into the possession of the officers and under the control of the court by unlawful or irregular means, and were they inadmissible in evidence because of being improperly procured or for any othe reason?

The arrest was made by police officers of the city of Phoenix, who under the laws of this state are peace officers. Paragraph 841, Pen. Code Ariz. Peace officers are authorized to make arrests without warrant on a charge made upon reasonable cause of the commission of a felony by the party arrested, or when a felony has in fact been committed and the officers have reasonable cause for believing the person arrested to have committed it. Paragraph 862, Pen. Code Ariz.; Wiley v. State, 19 Ariz. 346, L.R.A. 1918D, 373, 170 P. 869; Miles v. Wright, 22 Ariz. 73, 12 A.L.R. 970, 194 P. 88. It appears from the record that such information had been received by the officers as authorized them to make the arrest. The authority to make the arrest without a warrant necessarily included the authority to do any other thing, in connection with the arrest, which a warrant would have given. The statutes in setting forth the bases of authority upon which an officer may make an arrest makes no distinction in the scope and extent of the authority conveyed, or the manner in which the arrest is to be effected. If the officer is authorized to arrest at all he is authorized to perform that duty in the same manner and with like incidents by whatever form that duty is imposed. Whatever the officer is authorized to do by virtue of a warrant of arrest he is authorized to do on a charge made upon a reasonable cause of the commission of a felony by the party arrested. 1 Bishop's Criminal Procedure, 196.

This brings us to a consideration of the authority and duty of a peace...