Lawrence v. State
| Decision Date | 06 November 1925 |
| Docket Number | Criminal 623 |
| Parties | WILLIAM A. LAWRENCE, Appellant, v. STATE, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.
Mr. L C. McNabb, for Appellant.
Mr John W. Murphy, Attorney General, Mr. Frank J. Duffy and Mr Earl Anderson, Assistant Attorneys General, and Mr. Arthur T La Prade, County Attorney, for the State.
About midnight on the 5th of February, 1925, Haze Burch, at that time a police officer in the employ of the city of Phoenix, was shot and fatally wounded. He was immediately carried to the hospital, and on his way there, and while in it, he made certain statements describing the man he claimed had done the shooting and his companion. The alarm was immediately given, and search was made throughout the district for two men of this description. The next day William A. Lawrence, hereinafter called defendant, and Babe Lawrence, his brother, were arrested by the city marshal of Tempe on the Tempe Butte. They were brought to the sheriff's office, and while there questioned as to their connection with the shooting. Thereafter they were taken to the state penitentiary at Florence, and two days later again questioned by the county attorney and his assistant; a stenographer taking down what was said. Burch having died of his wounds, they were later jointly informed against for murder, a severance was demanded, and William Lawrence, defendant herein, was tried under the information. The jury returned a verdict of guilty of murder in the first degree, and fixed the penalty at death. After the usual motion for new trial had been made and overruled, defendant appealed to this court.
There are some fourteen assignments of error which we will consider in their order. The first is that the court erred in not sustaining the challenge of defendant to the jury panel. This challenge was filed in proper form, and alleged the grounds to be substantially as follows: That, while the law requires that the boards of supervisors of the different counties at the regular meeting in January of each year "shall cause to be made a list of all persons within their respective counties, qualified and liable to serve as jurors . . . and such boards shall cause certified copies of such original and revised lists to be filed in the office of the clerk of the superior courts in their several counties" (paragraph 3522, Civ. Code, Rev. Stats. Ariz. 1913), the board of supervisors of Maricopa county omitted from the list prepared in January, 1925, nearly two-thirds of the names of those who were actually qualified and liable to serve as jurors, and that such omission was wilful and deliberate. The challenge was supported by affidavits and certificates which tended to show the truth of the facts set forth in the challenge.
Under chapter 1, title 9, of the Penal Code of 1913, it is provided that, when a challenge is made to the panel, the adverse party should except thereto or else deny the facts set up, and the court must try either the questions of law or fact as the case might be. The record does not show that this procedure was followed, and the challenge was overruled, but whether because the court held the facts alleged were insufficient to justify a challenge, or because in its opinion they were not proved, we are unable to state. Since it does not appear the state denied the allegations of fact set forth in the challenge, we shall assume them to be true, and that the trial court held them insufficient as a matter of law.
The qualifications of jurors are set forth in paragraph 3516, Civil Code, Revised Statutes of Arizona of 1913, which reads as follows:
The qualifications of electors are found in paragraph 2879 of the Civil Code, supra, which provides:
"Every citizen of the United States . . . of the age of twenty-one years or over, who shall have become a resident of the state one year next preceding the election, and of the county and precinct in which he claims the right to vote, thirty days, and who, . . . is able to read the Constitution of the United States in the English language, . . . shall be entitled to register for the purpose of voting at all elections, . . . but idiots, insane persons, and persons non compos mentis or under guardianship, shall not be qualified to register for any election, nor shall any person convicted of treason or felony be qualified to register for any election unless restored to civil rights."
It will readily be seen from comparing the above two sections that practically every registered male elector of a county is presumably a qualified juror, and, indeed, many persons who have not yet acquired the qualifications of electors may be entitled to sit upon a jury. It appears that some three months before the jury list was prepared by the board of supervisors there were some seventeen thousand registered male electors in Maricopa county, but that the list as certified to the clerk of the superior court contained only a little over six thousand names. Without even considering the qualified jurors who had not taken the trouble to register, it is apparent that the jury list could not have contained much over onethird of the names which should have appeared upon it. Nor does the certificate of the clerk of the board even pretend to show as it did in Ubillos v. Territory, 9 Ariz. 171, 80 P. 363, that it was a list of "all persons within the county qualified and liable to serve as jurors," but merely that it was "a full, true and correct list of jurors complied by the Board of Supervisors in conformity with provisions of title 26, Civil Code, Revised Statutes of Arizona of 1913," thus stating a conclusion of law and not an ultimate fact.
While we do not think that a literal fulfillment of the statute is required, or even possible, for the reason that the number of legal jurors in a county the size of Maricopa fluctuates from day to day and almost from hour to hour, yet we do believe it is the duty of the board of supervisors to make an honest attempt to comply substantially with the law, and, when a list of seventeen thousand presumably qualified jurors is actually existing and easily accessible to them, the certifying of only six thousand names shows on its face that there was not even an effort to comply with the plain language of the statute. No doubt the board of supervisors thought that a list of six thousand names was ample to insure fair and impartial jurors for any case that might arise in Maricopa county in the year 1925, and that the certifying of seventeen thousand names would merely be an additional expense to the taxpayers, a greater burden upon the officers of the county, and honestly believed they were doing their duty. Public officers, however, have not the right for mere purposes of convenience or economy to disregard the plain language of a statute, even though with the best intentions in the world. It may be argued that a handpicked jury list is better than the one provided by law, but that is a matter for the legislature and not for the members of the administrative or judicial departments of the government to determine. The jury list was not prepared, as set forth in paragraph 3522, supra, and the board of supervisors could have been mandamused in the manner set forth in paragraph 3523, and compelled to perform their plain duty. The court erred in denying the challenge to the panel.
There is no doubt that many decisions hold that an error of this kind is always fatal and counsel for defendant with commendable zeal has collated them and urged them upon us. We feel, however, that the principle of law upon which they are necessarily based, to the effect that it is presumed any error in a criminal case is prejudicial, is a fallacious one.
One of the chief causes for the alarming increase of crime and the lessened esteem in which the administration of criminal justice is notoriously held by the layman undoubtedly is the tendency of the courts to adhere to archaic rules of procedure, when the reasons which caused their adoption have long since vanished. In ancient times a man accused of crime had no right to counsel; could not even testify in his own behalf; had no means of compelling the attendance of witnesses; was not entitled to bail as of right; and the cards were in many ways heavily stacked against him. It was in order to lessen, partially at least, these heavy odds that the courts adopted the rule that any error against a defendant in a criminal case was presumed to be prejudicial. But of late years the situation has changed. Every disability of the defendant has been removed, and he is now brought to trial, not only with every right enjoyed by the state, but with many privileges denied the latter. As an illustration of this we cite a few instances: The defendant must be advised in advance of trial of the exact nature of the charge against him. The state can only guess at his line of defense. He may ask for a change of place of trial, and disqualify the trial judge. The state cannot. He always has more challenges to the jury than the state. He may take the depositions of absent witnesses on his behalf. The state may not take them against him. He need not testify unless he wishes, and the state cannot...
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