Fred v. State

• Decision Date: 16 December 1929
• Docket Number: Criminal 701
• Citation: 282 P. 930,36 Ariz. 48
• Parties: INDIAN FRED and HOSTEIN SET CHIZZY BEGA, Appellants, v. STATE, Respondent
• Court: Arizona Supreme Court

282 P. 930

36 Ariz. 48

INDIAN FRED and HOSTEIN SET CHIZZY BEGA, Appellants, v. STATE, Respondent

Criminal No. 701

Supreme Court of Arizona

December 16, 1929

APPEAL from a judgment of the Superior Court of the County of Apache. A. S. Gibbons, Judge. Judgment modified and affirmed as modified.

Mr. W E. Ferguson, for Appellants.

Mr. K Berry Peterson, Attorney General, Mr. Riney B. Salmon Assistant Attorney General, and Mr. Dodd L. Greer, County Attorney, for the State.

OPINION

LOCKWOOD, C. J.

A complaint was filed in the justice court of Adamana precinct, Apache county, on the thirteenth day of June, 1928, against two young Navajos, Indian Fred and Hostein Set Chizzy Bega, hereinafter called defendants, charging them with attempted train wrecking. They were given a preliminary examination and bound over to the superior court upon the charge set up in the complaint. On the twenty-third day of June the county attorney of Apache county filed an information against them based upon the order of the committing magistrate aforesaid. On July 2d defendants demurred to the information, but so far as the record shows, the demurrer was never disposed of, and the minutes of the superior court show that on the same day they filed an oral motion to quash the information. The motion was sustained, and the court ordered the "defendants remanded into the custody of the sheriff for further action." It appearing to the court that they claimed to be under the age of eighteen years, the matter was set down for hearing in the juvenile court on the ninth day of July. After this hearing, an order was made that "defendants be remanded to the sheriff and by him handed over to the Committing Magistrate." No new complaint was filed, but the magistrate set the tenth day of July, 1928, for a second preliminary hearing on the original complaint, and defendants waiving examination, they were by him again bound over to the superior court on the same charge, and the next day an information based on this order was filed against them. On August 13th, a new motion to set aside the information and a demurrer thereto were denied, the defendants were arraigned and pleaded not guilty, and on August 22d the case came on for trial before a jury, which eventually returned a verdict in the following language:

"We, the Jury, duly empaneled and sworn in the above-entitled action, upon our oath do find: Defendants Guilty as Charged and fix the punishment at, 10 years ten years."

A motion for new trial having been overruled, the court denied the same and sentence was duly pronounced on the verdict, directing that defendants be confined in the state penitentiary at Florence for not less than ten years and not more than ten years and one day, whereupon they have appealed to this court.

There are some twelve assignments of error, which we will consider as seems advisable. The first, that the court erred in overruling the demurrer to the information, is not briefed, nor was it urged by defendants on oral argument. We therefore need consider it no further than to say that the information on its face appears to charge properly a violation of section 436 of the Penal Code of 1913.

The second assignment is that defendants were not legally committed in accordance with law. The argument made in open court was based upon the proposition that when the court sustained the motion to quash the information on July 2d, the complaint upon which it was based fell with it; and that before a new order committing defendants could be made, it was necessary to file a new complaint in the justice court. Section 975, Penal Code of 1913, reads as follows:

"975. If the motion (to set aside) is granted the court may order the defendant to appear before the judge of the superior court, or any other magistrate of the county, to be examined as in other cases. If such examination be not held and an information filed against the defendant within fifteen days after the making of such order the defendant shall be discharged. Pending such examination the defendant shall be admitted to bail in such sum as the court shall fix, if the offense charged be bailable. If the offense be not bailable the defendant shall remain in custody."

A motion to set aside an information is based on the ground, either that it was not signed by the county attorney, or else that the defendant has not been legally committed. If granted, the law originally provided the defendant must be discharged, but that the order should be no bar to a future prosecution for the same offense. Sections 974 and 976, Pen. Code 1913. These sections appeared in the Code of 1901, but section 975 was absent therefrom. Of course when the law so read, an order setting aside an information required that every step preliminary to a criminal prosecution be taken de novo (including, of course, a new complaint), in case it was desired to file a new information. In 1913 the legislature added section 975. We think its effect was to provide that when the superior court so ordered, the case went to a committing magistrate for a new examination wherein the error which caused the sustaining of the motion might be corrected without the necessity of repeating steps which were already legally taken. Any other construction would make the section purposeless.

The first order of the court, after the motion was, sustained, was that the defendants be "remanded into the custody of the sheriff for further action." The next proceeding taken was the hearing in the juvenile court, and after such hearing the order was "that the defendants be remanded to the sheriff and by him handed over to the committing magistrate," and "that all witnesses appear here before the committing magistrate, tomorrow morning." While the minutes do not show than an order was made in the exact language of section 975, supra, we are of the opinion that the legal effect of the orders above quoted was the same as if it had been. Since there is no contention the original complaint is faulty, the court properly denied the motion to set aside the second information.

The third assignment is that the court admitted certain hearsay evidence over the objection of defendants. It appears that the state attempted to offer in evidence a confession alleged to have been made by them. Upon the offer, their counsel promptly objected and asked that its admissibility be argued in the absence of the jury. The jury was thereupon excused, and the court investigated the matter. The evidence showed that the defendants were two Navajo Indian youths who neither spoke nor understood the English language, and that while they were in jail they made certain statements through one Jim James, an interpreter, in the presence of the county attorney and Deputy Sheriff Platt. The latter testified to certain statements made by defendants, but admitted that he did not understand their language and that his testimony was based on what the interpreter told him. This was clearly hearsay, and since properly objected to, was inadmissible. The interpreter, however, testified in person as to the statements made by defendants, and since the hearing was before the court and not before the jury, we must presume the court was not influenced by the improper evidence. Abernathy v. Reynolds, 8 Ariz. 173, 71 P. 914; Boston & Arizona etc. Co. v. Lewis, 3 Ariz. 5, 20 P. 310. Thereafter the jury was called in, and the interpreter again testified before it as to the terms of the confession. Platt was then called to the stand, and after testifying without objection that he heard defendants make a statement in reference to the case in the presence of the county attorney and Jim James, the following questions and answers appear in the record:

"Q. State just what was said and done? A. I was up to the court house on Sunday and Jim James --

"Mr. Ferguson: We object to that on the ground that the proper foundation has not been laid.

"The Court: He may answer.

"A. I asked him what they wanted and he said they wanted to talk.

"Mr. Udall: Was this in the presence of the defendants, these statements that were made? A. Yes, through the interpreter. I asked them what they wanted to tell and they said the truth about the wreck, and I said if you want to talk I will get the County Attorney and I went and got Mr. Udall and we took them out of jail and up to the County Attorney's office.

"Q. What preliminary statements, if any, were made by the County Attorney, before the defendants made any statements? A. You told the defendants through the interpreter that they didn't have to talk if they didn't want to.

"Mr. Ferguson: That is hearsay.

"Mr. Udall: It is in the presence of the defendants.

"The Court: He may answer.

"A. He told them anything they said would be used either for or against them.

"Q. And following those admonitions by myself what statements, if any, did these defendants make in the presence of the group that you have named there in the County Attorney's office on June 17th, 1928, and through the interpreter Jim James?

"Mr. Ferguson: We object on the ground that it is hearsay. I would like to ask a few questions on voir dire.

"Q. Do you speak Navajo? A. No, sir.

"Q. Did these defendants speak English? A. No, sir.

"Q. Then so far as you are concerned you do not know what they said? A. No, sir.

"Mr. Ferguson: We object on the ground of hearsay.

"Mr. Greer: I think the objection is good, your Honor.

"The Court: James has already testified, sustain the objection."

It appears that the first objection on the ground that the testimony was hearsay was made to the question, "What preliminary statements, if any, were made by the County Attorney, before the defendants made any statements?" This was answered: "You told the...