Brady v. Territory of Arizona

• Decision Date: 28 March 1900
• Docket Number: Criminal 144
• Citation: 7 Ariz. 12,60 P. 698
• Parties: PETER R. BRADY, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

60 P. 698

7 Ariz. 12

PETER R. BRADY, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 144

Supreme Court of Arizona

March 28, 1900

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Pinal. F. M. Doan, Judge. Affirmed.

The facts are stated in the opinion.

E. J Edwards, J. S. Sniffen, and Mark Smith, for Appellant.

C. F Ainsworth, Attorney-General, for Respondent.

If the facts constituting the offense are sufficiently charged in the indictment, the appellation of the crime is an immaterial matter. People v. Phipps, 39 Cal. 331; People v Cuddihi, 54 Cal. 53; People v. Dalton, 58 Cal. 226.

The rule in the United States is, that to disqualify a juror on the ground that he has formed an opinion on the case the opinion so formed must be a fixed, absolute, positive definite, settled, decided, unconditional opinion. People v. Reynolds, 16 Cal. 132; People v. King, 27 Cal. 507, 87 Am. Dec. 95; State v. Kingsbury, 57 Me. 238; O'Mara v. Commonwealth, 75 Pa. St. 424; Staup v. Commonwealth, 74 Pa. St. 458.

The fact that he heard part of the evidence on a former trial will not disqualify the juror, if the opinion he has formed is merely a qualified one. Lycoming Fire Ins. Co. v. Ward, 90 Ill. 545.

A juror is not disqualified by an opinion formed from hearing or reading the testimony of witnesses, or from hearing what purport to be the facts from persons in whom the juror has confidence, if the opinion is not in fact a decided one, and the juror believes that notwithstanding such opinion he can try the case fairly. Pollard v. Commonwealth, 5 Rand. 659; Jackson v. Commonwealth, 23 Gratt. 919; People v. King, 37 Cal. 507.

The fact that the juror says that it will take some evidence to remove his opinion is no disqualification so long as the opinion is a qualified one. People v. King, 37 Cal. 507.

In the following cases it was determined that jurors stating that they had formed opinions which it would take evidence to remove were nevertheless competent if they were able to say that they believed that notwithstanding such opinions they could try the case as impartially as if they had never heard of it. State v. Lawrence, 38 Iowa 51; State v. Millain, 3 Nev. 409; Ortwein v. Commonwealth, 76 Pa. St. 414, 18 Am. Rep. 420; Wormeley's Case, 10 Gratt. 658; Grisson v. State, 4 Tex. App. 374.

OPINION

DAVIS, J.

-- The appellant was prosecuted for a violation of paragraph 675 of the Penal Code, which provides: "Every officer of this territory, or of any county, city, town, or district of this territory, and every other person charged with the receipt, safe-keeping, transfer, or disbursement of public moneys, who, without authority of law, appropriates the same, or any portion thereof, to his own use, . . . is punishable by imprisonment in the territorial prison for not less than one nor more than ten years, and is disqualified from holding any office in this territory." The charging part of the indictment upon which the prosecution was based is as follows: "The said Peter R. Brady, Jr., on or about the 12th day of July, 1899, at the county of Pinal, territory of Arizona, and before the finding of this indictment, who was then and there an officer of said county of Pinal, to wit, county treasurer of said county of Pinal, and by virtue of his said office then and there by law was charged with the receipt, safe-keeping, and disbursement of the public moneys of said county of Pinal, and there acting in said office as such treasurer, did then and there willfully, feloniously, and without authority of law appropriate to his own use a part of the moneys intrusted to him as aforesaid, to wit, six thousand one hundred and ninety and eight one-hundredths dollars, lawful money and circulating medium of the United States of America; he, the said Peter R. Brady, Jr., well knowing that he was not entitled to the same." The indictment was demurred to on the grounds -- 1. That it does not substantially conform to the requirements of the Penal Code of the territory; and 2. That the facts stated therein do not constitute a public offense; and the demurrer was overruled. Upon the impaneling of the jury for the trial of the cause, a challenge was interposed by the defendant to a juror (P. H. Loss) for the existence of a state of mind on his part which would prevent him from acting in the case with entire impartiality. The juror was examined upon his voir dire, and the challenge was disallowed. Thereafter the defendant exercised the full number of his peremptory challenges upon other members of the panel, and the juror named was sworn, and served in the trial of the case. A verdict of guilty was rendered. Motion for a new trial was made and overruled, and the defendant was sentenced to confinement in the territorial prison for a term of five years.

Two assignments of error are made by the appellant, one based upon the refusal of the trial court to sustain the demurrer to the indictment, and the other upon its refusal to allow the challenge for cause interposed to the juror P. H. Loss. We will consider first the ruling upon the demurrer, which involves the question of the sufficiency of the indictment. The requirement of the statute is that the indictment must contain a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. Pen. Code, par. 1457. It must also be direct and certain as regards (1) the party charged, (2) the offense charged, and (3) the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. Id., par. 1459. The statute further provides that no indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits. Id., par. 1467. Tested by these requirements, is the indictment sufficient in form, and do the facts stated constitute a public offense? The point is urged that there is no definite allegation that the defendant ever received, as public money, the sum which he is charged with having appropriated. The indictment intelligibly sets forth however, that he was an officer of a class referred to in the statute; that his duty was to receive public moneys; that while acting as such officer (i.e. performing the duties of such office) he appropriated some of the moneys intrusted to him as such officer. If money is intrusted to a public officer in his capacity as such, he certainly receives it as public money, and he must surely have received it to have appropriated it to his own use. The point is, we think, merely technical. Against the sufficiency of the indictment it is also urged that "Pinal County" is the proper name of the political subdivision, and that there is no such body politic or corporate as the "County of Pinal." There is no express provision of the statute that the name shall be "Pinal County," and the two forms of county designation are used interchangeably in both the Civil and Penal codes. The material part of the name is "Pinal," and for the...