Britt v. State

• Court: Arizona Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Britt v. State, 25 Ariz. 419, 218 P. 981 (Ariz. 1923)
• Decision Date: 15 October 1923
• Docket Number: Criminal 580
• Parties: W. H. BRITT, Appellant, v. STATE, Respondent

218 P. 981

25 Ariz. 419

W. H. BRITT, Appellant, v. STATE, Respondent

Criminal No. 580

Supreme Court of Arizona

October 15, 1923

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed, with directions.

Messrs Cox & Moore, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. A. R. Lynch, Mr Earl Anderson and Mr. E. W. McFarland, Assistant Attorneys General, for the State.

OPINION

PER CURIAM.

Appellant was convicted of selling intoxicating liquors to one John Bart, at Wickenburg, Maricopa county. He was sentenced to serve six months in the county jail and to pay a fine of $150. He appeals, assigning several errors, some of which we think are meritorious. We notice only those that we consider well taken.

The defendant is a barber, and at the time of the alleged sale (March 22, 1923) had a barber-shop at Wickenburg. The only eye-witness to testify to the alleged sale was Edward Devanney, a deputy sheriff and constable of Wickenburg precinct. Devanney employed John Bart, who was a stranger in Wickenburg, to go to appellant's barber-shop and see if he could buy some whiskey. After Bart had been in the shop awhile, Devanney opened the door and saw Bart with a bottle of whiskey in his hand. Bart turned to Devanney and handled the bottle of whiskey to him, saying that he got it from appellant and paid $3.50 for it. Devanney arrested appellant and took him before the justice of the peace of Wickenburg precinct, where further proceedings were had. Whether a preliminary was held or not the record does not show. It is shown, however, that he gave bail to appear before the superior court. Bart was not a witness at the trial.

While the prosecuting witness, Edward Devanney, was testifying, it having been shown that he was the arresting officer, Assistant County Attorney La Prade asked him this question: "What were the facts surrounding that arrest or leading up to it?" To which the witness answered: "The facts were I had good cause to believe he was selling liquor." Appellant's attorney moved that the answer be stricken on the ground that it had nothing to do with the issues and was prejudicial. The court permitted the answer to stand, stating, "It is merely to show an inducement as to why he went there." Thereupon the question was asked: "Well, having that idea in mind, what did you do on it?" Over defendant's objection this was permitted to be answered, the witness stating, "I had a case of selling whiskey to a neighbor." This answer, on motion of appellant's attorney, was very properly stricken, and the jury was advised to disregard it.

The answer to the first question was quite as inadmissible and incompetent as were the second question and answer thereto. The witness' "belief" was not evidentiary, and whether it was based upon "good cause" might depend largely upon his ability to distinguish facts from fancies. However, when he was permitted to descend to details, he instanced a particular sale of liquor to a neighbor, and in doing so he might just as well have told the jury he believed appellant was the person who sold liquor to his neighbor, and that bootlegging was his business.

To permit an arresting officer to state to a jury that he had "good cause to believe" the defendant guilty of the crime with which he is charged naturally would arouse the curiosity and suspicion of the jury. If the officer is allowed to give the grounds of his belief, it opens the door to all kinds of information -- hearsay and otherwise. And if he is not permitted to state the cause of his belief, it leaves the jury a fruitful field in which to conjecture and speculate, and frequently would be more damaging than if the officer stated the reasons for his belief.

We think the court clearly committed error in refusing to strike the witness' answer. Jones v. State, 30 Tex. App. 426, 17 S.W. 1080; Prince v. State (Tex. Cr. App.), 20 S.W. 582, His belief was a mere conclusion and might be founded on facts entirely irrelevant to the question of defendant's guilt of the present charge.

The next complaint is as to the misconduct of the assistant county attorney. This assignment is based upon the questions and answers, rulings of the court, and remarks of the assistant county attorney during the cross-examination of defendant, as follows:

"Q. And do you recall that you led me off to one side and talked to me? A. Yes, sir.

"Q. I will ask you if it is not a fact that you told me in effect that you just started this. A. No, sir; I did not.

"Q. Didn't you tell me in effect --

"The Court: Just a minute, Mr. La Prade. You say he took you off to one side. Is it your purpose to take the witness-stand in the case? If you are trying to show a statement in the presence of somebody, you may do it; otherwise I won't permit it.

"Mr. La Prade: It is a funny state of affairs if a man can come to the county attorney and tell him how he committed the crime --

"The Court: Are you going to take the witness-stand?

"Mr. La Prade: I don't think that should be anticipated as to whether I am going to take the stand or not.

"Mr. Cox: We object to the remarks of counsel that he told him the way he committed the crime. It is improper.

"Mr. La Prade: Do I have to disclose at this time whether I intend to take the stand?

"The Court: Proceed.

"By Mr. La Prade: Q. Do you remember having told me in effect at that time and place that you had purchased five gallons and that you had only sold two of it? A. No, sir.

"Mr. Cox: Now, may it please the court, you can see the purpose of this. He is trying to bring in about something else there, absolutely reversible error.

"The Court: I will sustain the objection to it unless you say you are going to take the stand and testify in regard to it."

Before the assistant county attorney asked the above impeaching questions, the appellant had testified denying that he had sold any liquor to Bart. In that state of the evidence, no legal objection to the impeaching questions existed. We know of no rule of law that would prevent the assistant county attorney from becoming a witness to contradict statements made to him by a defendant.

The court's purpose evidently in interrupting the cross-examination was not so much to stop the line of cross-examination as to learn if the prosecutor was acting in good faith and intended to become an impeaching witness. The court's efforts were fruitless, but afforded an opportunity for the prosecutor to make most damaging statements against the accused. We do not think the jury could tell from what was said by the court whether the impeaching questions and answers were stricken or not. Strictly speaking, it was not necessary that the prosecutor disclose at the time whether he intended to take the stand. But we think fairness and candor with the court demanded that he state his intention. Apparently it was the prosecutor's impatience with the court, and not anything that counsel for appellant had said or done, that caused him to make the very damaging statement:

"It is a funny state of affairs if a man can come to the county attorney and tell him how he committed the crime -- "

Of course, this was uncalled for, disrespectful to the court, and must have been harmful to the appellant.

Akin to the foregoing assignment of error is one that occurred during the progress of the argument to the jury, which has a tendency to shed light upon and illustrate more fully the seriousness of the misconduct of the prosecutor. It is as follows:

"Mr La Prade: . . . And if a fellow comes to the county attorney and tells him how he committed it, then the county attorney is precluded from testifying, getting on the witness-stand and testifying.

"Mr. Cox: We object now to what counsel says about what the defendant told him. It is unfair to the defendant here and not proper argument.

"The Court: I will sustain the objection with reference to...