In re Application of Speakman

• Decision Date: 06 July 1927
• Docket Number: Civil 2656
• Citation: 32 Ariz. 307,257 P. 986
• Parties: In the Matter of the Application of HOWARD C. SPEAKMAN for a Writ of Habeas Corpus. v. JERRY SULLIVAN, Sheriff of Maricopa County, State of Arizona, Respondent HOWARD C. SPEAKMAN, Petitioner,
• Court: Arizona Supreme Court

257 P. 986

32 Ariz. 307

In the Matter of the Application of HOWARD C. SPEAKMAN for a Writ of Habeas Corpus.

HOWARD C. SPEAKMAN, Petitioner, v. JERRY SULLIVAN, Sheriff of Maricopa County, State of Arizona, Respondent

Civil No. 2656

Supreme Court of Arizona

July 6, 1927

An original proceeding in habeas corpus by Howard C. Speakman against Jerry Sullivan, Sheriff, to procure his release from detention under commitment for contempt. Petitioner discharged.

Messrs Alexander B. Baker, Edw. J. Flanigan, Thos. W. Nealon, Thos J. Croaff, Joseph W. Conway, J. B. Zaversack, Henry H Miller, Joseph E. Morrison, Lin H. Orme, Gene S. Cunningham Chas. A. Carson, Jr., A. T. La. Prade, Hess Seaman, H. M. Van Denburgh, Joseph M. Holub and Thos. A. Flynn, for Petitioner.

Mr. Geo. T. Wilson, County Attorney, and Mr. Benton Dick, Assistant County Attorney, and Messrs. F. C. Struckmeyer, F. H. Lyman and J. L. Gust, of counsel, for Respondent.

OPINION

McALISTER, J.

The petitioner, Howard C. Speakman, a practicing attorney, was adjudged guilty of contempt on June 4th in the superior court of Maricopa county, Hon. M. T. PHELPS presiding, and directed to pay a fine of $300, or in default thereof to serve a term of sixty days in the county jail. He declined to pay the fine, and obtained from this court a writ of habeas corpus and an order admitting to bail pending a determination of the legality of his imprisonment.

In his return the sheriff states that he holds the prisoner by virtue of an order, judgment and decree of the superior court of Maricopa county, made and entered on June 4th, 1927, a copy of which is attached to the writ, and reads as follows:

"State of Arizona

v.

"Christ Corras,

"Defendant.

"On this the 4th day of June, 1927, at the hour of 9:30 A.M., comes Benton Dick, deputy county attorney, present on the part of the state, the defendant being represented by his counsel, Howard Speakman, and thereupon, this having been the time heretofore set for the appearance in open court of the affiants to the affidavits of disqualifications in this cause, in accordance with an order heretofore made and entered herein that defendant's counsel, Howard Speakman, produce said affiants at the hour of 9:30 A.M. on Saturday, June 4th, 1927, in open court, and said affiants not being present in open court in person or by counsel, and evidence being produced that said Howard Speakman made no attempt to carry out the order of the court to produce said affiants in open court;

"It is the judgment of the court that you, Howard Speakman, are guilty of contempt of this court in willfully disobeying the order of the court, and that you shall be punished therefor by the payment of a fine of three hundred and no / 100 ($300.00) and that you shall be committed to the Maricopa county jail until said fine is paid, not in excess of sixty (60) days from this date.

"You will be committed at this time to the custody of the sheriff."

The return alleges further that on June 2d, 1927, there were pending in the superior court of Maricopa county certain indictments against one Christ Corras, and that, for the purpose of disqualifying the Hon. M. T. PHELPS from presiding in the trial thereof, the petitioner, who had been employed to represent Corras in defending himself against the accusation therein contained, filed on that day in each of these causes the affidavits of three persons, each stating that he was a resident elector of Maricopa county, Arizona, that he knew the above-named defendant, Christ Corras, and that, on account of the bias and prejudice of the Hon. M. T. PHELPS, before whom said cause was then pending, said Corras could not have a fair and impartial trial of said cause; that it thereupon became the duty of the said M. T. PHELPS to determine whether the persons signing such affidavits were resident electors of Maricopa county, Arizona, and that for the purpose of enabling the court to ascertain this fact it made the following order on June 3d, 1927:

"It is ordered by the court requiring Howard Speakman to produce persons signing affidavits in open court on June 4th, 1927, at 9:30 A.M."

Shorthand notes of what took place the following morning, June 4th, at 9:30 A.M., when the matter was called, were made by the reporter and a transcript thereof is attached to, and made a part of, the return. It discloses that, in reply to the court's query as to whether the affiants were in court, the petitioner replied that they were not, and that, in answer to the further question whether he had made any effort to produce them, he stated that he had not, giving as reasons therefor that he did not represent them; that he had no process by which he could compel their attendance, that the law did not provide any, that he did not know where some of the affiants who appeared in his office and executed the affidavits lived, and that the judge of the court had no further jurisdiction in the case after the affidavits disqualifying him had been filed, except to call some other judge to preside at the trial. Following this colloquy the court said:

"It is the judgment of this court that you are guilty of contempt of this court in wilfully disobeying the order of the court, and that you shall be punished therefor by the payment of a fine of $300, and that you will be committed to the Maricopa county jail until the fine is paid, not in excess of 60 days from this date. You will be committed at this time to the custody of the sheriff."

The return further alleges that the order to produce affiants was a lawful and necessary order, and that obedience to it was imposed upon petitioner by law and the canon of ethics for the practice of law controlling the relation of courts and attorneys.

The petitioner controverts certain portions of the return, excepts to the sufficiency thereof, and alleges certain facts to show the unlawfulness of his imprisonment. He denies that upon the filing of the affidavits it became the duty of the court to determine whether the persons who made them were resident electors of Maricopa county, and alleges that, at the time they were made and filed, the affiants were such resident electors, and that the only duty devolving upon the judge of said court after they were filed was to call in some other superior judge in the state to preside at the trial. He denies further that the order to produce the affiants was a lawful order; that obedience to it was imposed upon him by law or by the canon of ethics for the practice of law controlling the relations of courts and attorneys; and that in disobeying it he was guilty of contemptuous conduct. He alleges upon the contrary that to obey the order would have caused petitioner to deprive the affiants of the rights granted them by the Constitution of Arizona and the Constitution of the United States, in that it would have resulted in the petitioner's depriving said affiants of their liberty without due process of law, in his disturbing them in their private affairs, and possibly invading their homes, and in denying them the equal protection of the law. He alleges also that the order was void and of no effect because it was an attempt on the part of the court to use the petitioner as an officer, instrument or agent of the court to deprive the affiants of their constitutional rights by depriving them of their liberty without due process of law, and to disturb them in their private affairs, and invade their homes without authority of law.

Under the law of this state any person charged with an offense may, if he desires, have his case heard by a judge other than the one presiding in the county where the charge is pending, and, in order to do this, it is necessary that he comply with the provisions of paragraph 999, Revised Statutes of 1913, Penal Code, reading as follows:

"A criminal action may be removed from the court in which it is pending, on the application of the defendant, on the ground that a fair and impartial trial cannot be had in the county where the action is pending, and if the defendant shall make affidavit, supported by the affidavits of three resident electors of the county that he...