Conner v. State

Decision Date10 July 1939
Docket NumberCriminal 878
PartiesFRANK CONNER, Appellant, v. STATE OF ARIZONA, Respondent
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Santa Cruz. M. T. Phelps, Judge. Judgment affirmed.

Mr Galbraith A. Little, Mr. Nasib Karam and Mr. Lemuel P Mathews, for Appellant.

Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Respondent.

OPINION

LOCKWOOD, J.

Frank Conner, hereinafter called defendant, was informed against for the crime of murder in the first degree. He was tried before a jury which found him guilty and fixed the penalty at death, and his appeal is now before us.

There are but two assignments of error. One of them goes to the refusal of the court to allow a challenge for cause to A. L Peck, who was called as a juror in the case, and the other is based on the alleged failure of M. I. Davis, another juror to answer truly concerning his qualifications. Section 5035, Revised Code of 1928, gives the grounds of challenges for jurors in criminal cases. Among these are the following:

"5. standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged or on whose complaint the prosecution was instituted, or in his employment on wages;... 13. for the existence of a state of mind on the part of the juror in reference to the case or to the defendant or to the person alleged to have been injured by the offense charged, or on whose complaint the prosecution was instituted, which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party."

The juror Davis was asked on his voir dire:

"Q. Are you acquainted with any of the attorneys for the State? A. I know all of them casually.

"Q. You have no business pending with them? A. Not at present.

"Q. Did you have any business with any of them? A. Mr. Robins.

"Q. How long was that? A. Sometime this year.

"Q. Is he still your attorney in that case? A. No sir.

"Q. That case is already terminated? A. Yes."

Nothing in the examination of the juror suggested that he was not in every respect fully qualified to sit, and he was then passed by both the state and the defendant. Mr. Robins was the county attorney who filed the information in the case, and it appeared, after the trial had been concluded and the defendant sentenced, that Davis had employed the county attorney to represent him in a divorce proceeding a short time before the trial of the instant case. The evidence in that proceeding had been heard and the case submitted, but the formal rendition of judgment by the court had not been made when the present case was called for trial. A motion for new trial was made raising this matter but it was denied.

Technically speaking, the relationship of attorney and client, referred to in subdivision 5, supra, had not yet been terminated, but we cannot say that the examination of the juror shows affirmatively that the deliberately perjured himself on this point. It is natural enough for the ordinary layman, after the trial of his case has been concluded, to assume that the entire matter is terminated, and that the relationship of attorney and client no longer exists. However, the language of the statute is plain that if the relationship does still exist, a challenge for cause should be allowed, and while the challenge was not formally interposed during the trial, it was due to the fact that the juror had failed to disclose the precise situation existing to the attorney for the defense, and he properly raised the matter by his motion for a new trial.

The other assignment presents a different question. Juror Peck on his voir dire disclosed a strong friendship which had existed between him and the deceased, a bitter feeling as to the death of his friend, and an expression of an opinion as to the case which it would be very difficult for him to lay aside. On the other hand, he stated that if he did serve on the jury, he would be fair and would consider only the evidence which was presented to him, and disregard everything else. He also said that if he, himself, were being tried for the murder of the deceased he would be willing for twelve men in his existing frame of mind to pass upon his case. The court finally denied the challenge for cause, but Peck was challenged peremptorily by the defendant and did not sit in the case.

Upon the face of the record, there is some doubt in our minds as to whether, technically speaking, the showing was such that it was erroneous for the court to refuse to grant the challenge as to the juror Peck, but assuming that it should have been granted, the question remains whether the failure so to do was not only error but was prejudicial. It has been held frequently that even though a juror to whom a challenge for cause was made, which should have been allowed, does not sit in the trial of the case because he is challenged peremptorily, that this does not cure the error in failing to allow the challenge for cause, if the defendant has exhausted his peremptory challenges, for the reason that, being forced to exercise one of his peremptory challenges in order to strike the obnoxious juror, he has one less challenge of that nature left to use against other jurors whom he may not desire to sit in the case. State v. Stentz, 30 Wash. 134, 70 P. 241, 63 L.R.A. 807; State v. Brown, 15 Kan. 400; Commonwealth v. Vitale, 250 Pa. 552, 95 A. 724; Holman v. State, 115 Ark. 305, 171 S.W. 107. In some jurisdictions this is not the rule, however, if the jurors who actually sit are all legally competent, even though personally objectionable to the defendant. People v. Riggins, 159 Cal. 113, 112 P. 862. Particularly is this true when no other juror who was challenged for cause is allowed to sit. State v. Thorne, 41 Utah 414, 126 P. 286, Ann. Cas. 1915D 90.

But assuming for the argument that it was error to deny the challenge for cause to the juror Peck, and to refuse to grant a motion for new trial after it had been discovered that the juror Davis was disqualified under subdiv. 5, supra, do these two matters necessarily require a reversal of the case?

Artiele 6, section 22, of the Constitution of Arizona, so often cited by us in our decisions, reads as follows:

"The pleadings and proceedings in criminal causes in the courts shall be as provided by law. No cause shall be reversed for technical error in pleading or proceedings when upon the whole case it shall appear that substantial justice has been done."

In the case of Lawrence v. State, 29 Ariz. 247 240 P. 863, 866, we had under consideration a situation very analogous to that in the present case. It also was a case where the defendant had been convicted of murder in the first degree, and sentenced to death. It appeared clearly in that case that the law of the state had not been...

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11 cases
  • State v. Hickman
    • United States
    • Supreme Court of Arizona
    • May 19, 2003
    ...of a peremptory challenge to remove that juror, did not require reversal when a fair and impartial jury decided the case. 54 Ariz. 68, 74-75, 92 P.2d 524, 527 (1939). The court reasoned that if the jury is lawful, the defendant's constitutional right to a trial by an impartial jury has been......
  • State v. Goodyear
    • United States
    • Supreme Court of Arizona
    • July 19, 1965
    ...247, 240 P. 863; Burnett v. State, 34 Ariz. 129, 268 P. 611; Kinsey v. State, 49 Ariz. 201, 65 P.2d 1141, 125 A.L.R. 3; Conner v. State, 54 Ariz. 68, 92 P.2d 524.' 68 Ariz. at 390, 206 P.2d at We hold that in the instant case the failure of the court to follow the procedure as outlined by t......
  • Burgunder v. State, Criminal 889
    • United States
    • Supreme Court of Arizona
    • June 6, 1940
    ......80." Under. this rule, injury is not conclusively presumed, as formerly,. from error but must be shown. Lawrence v. State, 29 Ariz. 247, 240 P. 863; Id., 29 Ariz. 318,. 241 P. 511; Turley v. State, 48 Ariz. 61,. 59 P.2d 312; Riley v. State, 50 Ariz. 442,. 73 P.2d 96; Conner v. State, 54 Ariz. 68,. 92 P.2d 524. . . Defendant. complains that "Counsel for the state was guilty of. misconduct in making a prejudicial inflammatory closing. argument." In the body of [55 Ariz. 431] defendant's. brief are quoted excerpts from the closing argument of a. ......
  • State v. McGee
    • United States
    • Supreme Court of Arizona
    • March 28, 1962
    ...and selection of juries if a fair and impartial jury was secured. State v. Miller, 71 Ariz. 140, 224 P.2d 205 (1950); Conner v. State, 54 Ariz. 68, 92 P.2d 524 (1939). Defendant offered no showing that his rights were prejudiced due to this technical discrepancy. The same principle applies ......
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