De Leon v. Territory of Arizona

• Decision Date: 30 March 1905
• Docket Number: Criminal 177
• Citation: 80 P. 348,9 Ariz. 161
• Parties: CHARLES DE LEON, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

80 P. 348

9 Ariz. 161

CHARLES DE LEON, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 177

Supreme Court of Arizona

March 30, 1905

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. Richard E. Sloan Judge. Affirmed.

The facts are stated in the opinion.

Henry T. Andrews, Joseph E. Morrison, and Samuel L. Pattee, for Appellant.

The demurrer to the first indictment, which was sustained by the court, going to the merits, the resubmission not being merely formal, the defendant having no right to challenge after the first submission of the case, and having in apt time made his motion to set aside the indictment because of the disqualification of the grand jurors, and they being disqualified as a matter of law, under the following authorities, it was error to deny the motion. Terrill v Superior Court, (Cal.) 60 P. 38; People v. Hanstead, 135 Cal. 149, 67 P. 763.

E. W Wells, Attorney-General, for Respondent.

OPINION

DOAN, J.

-- The appellant in this case, Charles De Leon, was indicted on November 10, 1903, by the grand jury of Yavapai County, for the crime of embezzlement. On the eleventh day of November, 1903, a demurrer to this indictment was sustained by the district court, and the case ordered resubmitted to the same grand jury, which was still in session. On the following day, November 12, 1903, the said grand jury returned a second indictment against the defendant, charging him with the same offense. Upon arraignment under the second indictment, the defendant moved to set aside the indictment upon the ground, among others, that "at the time of finding said indictment a state of mind existed upon the part of each and every one of the grand jurors by whom the said indictment was found, in reference to the case and to the above-named defendant, by reason whereof each and all of said grand jurors could not give a verdict impartially and without prejudice to the substantial rights of the defendant," and upon the further ground that "on the 10th day of November, 1903, an indictment had been returned and found by the same grand jurors who found and returned the indictment herein moved to be set aside, purporting to charge the defendant with the same offense, and upon arraignment the defendant's demurrer to said indictment was sustained, and the case ordered resubmitted to the same grand jury. And thereupon the same was so resubmitted, and on the 12th day of November, 1903, the indictment herein moved to be set aside was found and returned by the said jury, charging the same offense as that attempted to be charged in the said former indictment. That each and every one of the grand jurors who heard said evidence offered upon said resubmission, and found and returned said last indictment, were members of the grand jury who heard the testimony, and found and returned said first indictment. . . . And that prior to said resubmission each and every one of said grand jurors had formed or expressed an unqualified opinion that an indictment should be found and returned against said defendant upon said charge, and that prior to the said resubmission this defendant had had no opportunity, and no right was given to him by law, to challenge the grand jury or any member thereof." The motion to dismiss was overruled by the court, and, upon the overruling of a demurrer to the indictment, the defendant pleaded not guilty, and the case was tried to a jury.

The evidence at the trial tended to show that the defendant and one Mrs. Edith Brown were married March 24, 1903; that prior to her marriage to the defendant the collection of some money due Mrs. Brown (now Mrs. De Leon) had been intrusted to the Branch Bank of Arizona, at Jerome; that on March 27th Mr. De Leon, the defendant, deposited to his own credit one hundred dollars, and that afterwards, upon the collection of part of the money aforesaid, Mr. and Mrs. De Leon went to the bank on April 6, 1903, and placed in the bank four hundred dollars thus collected, and the one hundred dollars that had been deposited by De Leon, to the credit of Mrs. or Charles De Leon, under an arrangement that either Mr. or Mrs. De Leon could draw checks against the account without the consent of the other, and such checks would be honored by the bank. The balance of the money, amounting to $310.12, was on May 18, 1903, deposited in the bank under the same arrangement. Prior to May 25, 1903, some small checks were drawn by Mr. De Leon on this account, and paid by the bank. On May 25, 1903, Mr. De Leon presented to the bank a check drawn by him for five hundred and fifty dollars, payable to himself, for which he received a cashier's check for that sum, payable to the Bank of Arizona, at Prescott, Arizona. This cashier's check was indorsed by Mr. De Leon, and subsequently paid by the bank upon which it was drawn. Some time during May or June, 1903, Mr. De Leon was arrested, upon the charge of which he was subsequently convicted, by the sheriff of Yavapai County, at Santa Barbara, California, and brought to Yavapai County for trial. At the time of his arrest he said to the sheriff that he took the money, and was sorry for it; that he was drunk at the time, and didn't know what he was doing. At the trial the prosecution sought to introduce a letter alleged to have been written by the defendant, while in jail, to his wife; and the sheriff was permitted to testify, over the objection and exception of the defendant, that the signature of the letter was in the same handwriting as the indorsement of the cashier's check. It was also shown that the letter had been mailed to Mrs. De Leon, and it was not produced at the trial. The sheriff testified from his recollection as to the appearance of the signature. The sheriff also stated, over the objection of the defendant, his recollection of the contents of the letter, which was to the effect that the defendant knew that he did wrong in taking Mrs. De Leon's money, and offering, if she would stop the prosecution, to pay it back.

At the close of the testimony for the territory, the defendant moved the court to instruct the jury to return a verdict of not guilty, on the ground of the insufficiency of the evidence to sustain the charge made in the indictment. This motion was denied, and, the defendant offering no evidence, the case was submitted to the jury, after instructions from the court, and the jury returned a verdict of guilty. The defendant, after verdict, moved for a new trial, which was denied, moved in arrest of judgment, which was also denied, and he was thereupon sentenced to imprisonment in the territorial prison for two years. From the judgment of imprisonment, and the denial of the motion for a new trial, the defendant has appealed.

The eighteen assignments of error contained in appellant's brief may be grouped under five different heads. The first second, and third assignments present the correctness of the ruling of the trial court in overruling the defendant's motion to set aside the indictment filed November 12th, on the ground of the disqualification of the grand jury that returned an indictment for this offense against the defendant on the 10th to again consider the same charge against the same defendant and return a second indictment on November 12th, after the first indictment had been declared insufficient by the court to properly charge the offense attempted to be charged therein. Subdivision 4 of section 862 of our Penal Code provides that "the indictment may be set aside by the court upon motion when the defendant has not been held to answer before the finding of the indictment, on any ground which would have been good ground for challenge either to the panel or to any individual grand juror." Section 792 of the Penal Code gives as one of the grounds for challenge to an individual grand juror that "a state of mind exists on his part in regard to the facts of the case or to either party, which satisfies the court in the exercise of a sound discretion, that he cannot act impartially and without prejudice to the substantial rights of the party challenging." The appellant bases his assignments of error on the provisions of these two paragraphs, and claims inasmuch as he had not had an opportunity for challenging the grand jury after they had passed upon the first indictment, as provided by section 792, he was entitled to his motion to dismiss under the provisions of section 862. Our Penal Code provides that a challenge to the panel of a grand jury may be interposed by a person held to answer to a...