Elias v. Territory of Arizona

• Decision Date: 26 March 1904
• Docket Number: Criminal 174
• Citation: 9 Ariz. 1,76 P. 605
• Parties: TEODORO ELIAS, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

76 P. 605

9 Ariz. 1

TEODORO ELIAS, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 174

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. George R. Davis Judge. Affirmed.

The facts are stated in the opinion.

Antonio Orfila, and Josiah Ide, for Appellant.

E. W Wells, Attorney-General, and Roscoe Dale, District Attorney of Pima County, for Respondent.

OPINION

DOAN, J.

The appellant was indicted in October, 1902, for murder, alleged to have been committed on the twenty-sixth day of July, 1902, by shooting and killing one W. H. Katzenstein. After continuance for the term, and denial of change of venue and further continuance, he was, in May, 1903, tried in the district court of Pima County, and found guilty of murder in the first degree, the jury fixing the penalty at death. His motions for a new trial and in arrest of judgment were denied, and after their denial judgment of conviction was pronounced, and the death sentence imposed. He now prosecutes his appeal from the order of the trial court denying a change of venue, from the order denying a continuance, from the judgment of conviction, and from the orders overruling and denying his motion for a new trial and in arrest of judgment.

The first assignment of error presented is the court's refusal to grant appellant's application for a change of venue, based upon affidavits representing that the appellant could not receive a fair and impartial trial in Pima County by reason of the prejudice of the people of said county. In support of said motion were presented the affidavits of appellant and his two counsel, citing articles published in two daily papers about the time or shortly after the killing of Katzenstein, and the declarations of different persons made on the streets of Tucson on the night of that occurrence. Counter affidavits were filed by the district attorney, sheriff, and different residents of the county. This motion was argued and submitted to the court at the October term, 1902, and was denied, but permission was granted to renew the same at the time the case might be called for trial. The case was then continued on motion of the appellant from the October term, 1902, to the April term, 1903, and on May 8, 1903, before the trial of the cause, the appellant filed a supplemental affidavit and renewed the motion, the consideration of which was then continued to be taken up during the impaneling of the jury. Before the completion of the impanelment of the jury, the motion, being again renewed, was denied by the court, to which ruling the appellant excepted. The facts set forth in the affidavits and counter affidavits do not, upon a careful examination, indicate any abuse by the judge of the lower court of the discretion that he was called upon to exercise in passing upon this motion. Before the court is justified in sustaining an application for a change of venue on account of the prejudice of the inhabitants of the county, it must affirmatively appear from the showing that there is such a feeling of prejudice prevailing in the community as will be reasonably certain to prevent a fair and impartial trial. State v. Daugherty, 63 Kan. 463, 65 P. 696. The intemperate expressions of a mass of people congregated on the streets at the time of the killing, and the publication of a couple of inflammatory articles in the daily papers on the following day, or within a few days thereafter, might properly be considered by the trial judge insufficient to demonstrate the impossibility of a fair and impartial trial in a county as large as Pima County, with one city of more than ten thousand inhabitants, from which to select jurors, and this more particularly as the trial occurred nearly a year after such killing and the public expressions and newspaper articles in reference thereto. An application for a change of venue calls for the exercise of a sound judicial discretion. The presumptions are in favor of the correctness of the conclusions arrived at and the ruling made by the trial court, and they will not be interfered with on appeal by the supreme court except when a clear case is shown by the record of an abuse of such discretion. State v. Armstrong, 43 Or. 207, 73 P. 1024; Parker v. Territory, 5 Ariz. 283, 52 P. 361.

It is next urged that the court erred in refusing appellant's motion for a continuance of the trial. A continuance was granted the appellant from the October term, 1902, to the April term, 1903, because of the absence of the witnesses Gamez, Carrizosa, and Kline. On March 6, 1903, he caused a subpoena to issue for these witnesses, without instructing the sheriff where they could be found. The officers returned the subpoena, declaring their inability to find Gamez, and stating that Carrizosa had left Tucson long prior to the homicide, and that his residence and present location were unknown. Kline was subpoenaed, and was present at the trial, but was not called by the defendant. It was disclosed by the testimony of other witnesses during the trial that the witness Juan Gamez was generally known among his associates and about town as Quate el Maromero, and, while generally known as Quate el Maromero, but few of his associates knew that his name was Juan Gamez. Neither the defendant nor his attorneys, in ordering his subpoena under the name of Juan Gamez, advised the sheriff that the witness was the person generally known as Quate el Maromero. Appellant averred his ability to prove by the witnesses Carrizosa and Gamez that between eight and nine o'clock on the evening of the homicide, being about two hours before the killing, the deceased, without any provocation, abused the defendant by applying vulgar and degrading epithets to him, and that the witness Gamez would testify that within a few minutes prior to the killing the deceased again applied vulgar language to and struck the appellant. The affidavit presented in support of the motion did not show any probability of the appellant being able to secure the attendance of Carrizosa at any future time to which the case might be continued, and the facts do not show due diligence on the part of appellant in attempting to secure the attendance of Gamez. These facts, in consideration of the further fact that the case had been continued for six months on account of the absence of these two witnesses, and the very serious question whether the evidence sought to be furnished by them would materially affect the defense of the accused, satisfy us that the trial court did not in this instance abuse the judicial discretion to which an application for a continuance is addressed.

It is next urged that "the court erred in overruling the challenge to the impanelment of the trial jury." This claim is found, on an examination of the statute and the authorities to be untenable. The undisputed facts as shown by the record and conceded by the appellant, are that of the regular panel there were forty-six jurors in attendance on May 1st; that on May 6th, two days before the commencement of the trial of this case, the court ordered: "It appearing that there were not a sufficient number of jurors present for the transaction of the business before the court, that twenty good and lawful men qualified to serve as trial jurors be forthwith summoned by the sheriff." Under this order the sheriff made return of service by special venire upon twenty persons. Afterwards, on May 9, 1903, during the course of the trial, after the panel was exhausted by excuses and challenges for cause, another order was made requiring the sheriff to summon thirty additional jurors by special venire. There was no challenge made or objection offered to the regular panel or to the last special venire of thirty, but on May 8th, when the case was called for trial, and twenty-nine jurors were called into the box, a challenge was offered to the array of such trial jurors on the grounds that the same had been improperly drawn, because the array of twenty-nine represented jurors from the regular panel and from the special open venire of May 6th, and the entire number of jurors constituting the regular panel had not been exhausted before the order was made directing the special venire to issue, and because the names of the special veniremen had been mixed in the same box with the names of those who had been regularly chosen from the proper list.

Paragraph 2807 of the Revised Statutes of Arizona of 1901 provides: "Where jurors are not drawn . . . or a sufficient number of jurors fail to appear, such court may in its discretion order a sufficient number to be drawn forthwith and summoned to attend such court, or it may, by an order entered on its minutes, direct the sheriff of the county forthwith to summon so many good and lawful men of his county to serve as grand or trial jurors as the case may require.

Paragraph 2819 provides: "At the opening of court on the day trial jurors have been summoned to appear . . . the clerk must then write the names of the persons present and not excused upon separate slips or ballots of paper . . . and . . . deposit the slips or ballots in a box, which must be kept sealed until ordered by the court to be opened."

Paragraph 2820 provides: "When an action is called for trial by jury, the clerk shall prepare separate ballots containing the names of the jurors summoned who have appeared and not been excused, and deposit them in a box; he shall then draw from the box twelve names, and in addition thereto as many more as shall equal the number of peremptory challenges to which the parties are entitled."

This challenge is offered under the provisions of section 906 of the Penal Code of Arizona, which...