Midkiff v. State

• Decision Date: 17 February 1926
• Docket Number: Criminal 608
• Citation: 29 Ariz. 523,243 P. 601
• Parties: HARRY MIDKIFF, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

243 P. 601

29 Ariz. 523

HARRY MIDKIFF, Appellant, v. STATE, Respondent

Criminal No. 608

Supreme Court of Arizona

February 17, 1926

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Affirmed.

Mr. R E. L. Shepherd, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. Earl Anderson and Mr. Frank J. Duffy, Assistant Attorneys General, for the State.

OPINION

ROSS, J.

The defendant was convicted of an assault with a deadly weapon charged in the information to have been committed on the person of one E. L. Guernsey with a knife, on January 31, 1924.

He appeals and asks that the judgment of conviction be reversed and he be granted a new trial for thirteen reasons, which he makes the basis of that many very informal and insufficient assignments of error. We will overlook the informality and the lack of compliance with our rules and take up these assignments and give to each of them such consideration as they seem to merit.

The first is that "the court erred in overruling defendant's motion for a continuance." The defendant's efforts to avoid a trial of his case were manifested in many devious ways. He was informed against March 17, 1924. He was arraigned before Honorable M. T. PHELPS, Judge of the superior court of Maricopa county, on March 27th, on which date the time for taking his plea was set for March 31st. On the last-mentioned date, on defendant's motion, the time for taking plea was reset for April 2d. On his motion, the time was again postponed to April 4th, when he was heard on a motion to set aside the information, also on his demurrer. The motion being denied and demurrer overruled, he then pleaded "not guilty," and the case was set down for trial May 15th. On May 5th he moved that the case be reset to a later date, which motion was considered on May 7th and 8th and defendant given time to file amended affidavits. On May 9th the setting for May 15th was vacated and the case reset for July 1st.

In the meantime, the defendant, instead of filing an affidavit of bias and prejudice, gently broke the news to Judge PHELPS that such an affidavit would be filed unless he voluntarily transferred the case to another judge. Thereupon, on June 3d, Judge PHELPS, moved no doubt by a desire to save defendant the trouble of making and filing such a paper and to assure defendant a trial before a judge free from bias and prejudice, assigned the case to the Honorable E. E. BOLLINGER, judge of the superior court of Mohave county. It appeared a little later that the good intentions of Judge PHELPS, in assigning the case to Judge BOLLINGER, were wasted, for on June 27th, the latter, happening to be presiding over one of the divisions of the superior court of Maricopa county, was made to know by defendant that he also was objectionable because of his bias and prejudice, whereupon Judge BOLLINGER, without exacting an affidavit and on his own motion, assigned the case to the Honorable RICHARD LAMSON, judge of the superior court of Yavapai county. On the call of the case for trial on July 1st, it developed that Judge LAMSON was too ill to preside, and in his absence the Honorable FRED C. STRUCKMEYER, one of the regular judges of the superior court of Maricopa county, took the case up and was proceeding to try it, when defendant, who had beforetime prepared an affidavit to disqualify Judge LAMSON, wrote in the blank space left for Judge LAMSON'S name the name of Judge STRUCKMEYER, and thus another judge was disposed of. The Honorable DUDLEY W. WINDES, one of the regular judges of the superior court of Maricopa county, was sent for and assumed the bench and presided during defendant's trial.

Here the extraordinary means theretofore adopted to avoid a trial were abandoned, but be it known that Judge WINDES, in the course of the trial, had no path of roses to tread, but was confronted with motions, petitions, objections, etc., some of them being novel as well as unique. The first was the motion for a continuance. This motion was based upon the affidavit of defendant, in which he states that one Marion Maberry was present at the time he is charged with assaulting the prosecuting witness or witnesses, and that he would testify, if at the trial, that such witness or witnesses attacked and assaulted defendant with knives and a stove poker without any cause, and before defendant used any force to defend himself, and that defendant used only such reasonable force as a reasonable and prudent person would use in defense of his life or to keep from receiving great bodily harm. The affidavit shows diligence in causing a subpoena for such witness to be placed in the hands of the sheriff for service, and states that such officer neglected and failed to serve same and permitted Maberry to leave the jurisdiction. It is obvious that the contents of the affidavit are insufficient. Most of the things he states Maberry would testify to are his own conclusions and not evidence at all. Even if the prosecuting witnesses did first assault defendant, so far as the affidavit shows, they might have in good faith withdrawn from the affray, in which case the defendant's assault would not have been justifiable. However, it was not stated in the affidavit that what was proposed to be proved by Maberry could not be proved by others who were present. In the trial it developed that there were present a great number of eye-witnesses. Besides the prosecuting witness, the following named witnesses for the state testified to being present and seeing what took place: Oliver Gompert, Herbert Geare, C. L. Curry, Mrs. Edith Brown, Bob West and Dick Morris -- and for the defendant: George Pray, Ben Blumm, James Baldwin, Oscar Burnett and Richard Kilpatrick. It is very improbable that Maberry's testimony, if he had been present, would have been other than a repetition of what the witnesses present and testifying stated the facts to be. Even if the affidavit had stated that defendant had no other witness by whom he could prove what he had stated Maberry would testify to (which it did not) the after-developments at the trial completely refuted it.

The affidavit for continuance further set out that defendant's wife was ill and unable to appear in court and testify; that, if she were present, her testimony as to what took place at the time of the assault would be corroborative of that of Maberry. The affidavit does not state that defendant's wife was present at the time, or that she personally saw or heard anything. It was clearly insufficient.

It is also stated in such affidavit that one Charles Sorenson, for whom a subpoena had been issued but not served, if present, would be an important and material witness for defendant, but "that the nature of the evidence that the said Charles Sorenson will give . . . is such that this affiant cannot safely set it out, as his testimony would be such as will empeach certain witnesses subpoenaed by the state of Arizona, and it would be highly dangerous and inconsistent for this affiant at this time to disclose the testimony of said Charles Sorenson. . . ."

It is apparent that no sufficient grounds for a postponement of trial were set out in the motion, and that it was properly denied. When the evidence sought is cumulative or for impeaching purposes, ordinarily a continuance will not be granted; and in this case, in view of the defendant's pernicious tactics beginning with his arraignment on, to have further delayed the trial, would have been a marked abuse of the court's discretion.

The next assignment is that "the court erred in overruling defendant's challenge to the entire trial jury." By looking to the entire record, we find this assignment is intended as an attack upon the jury list as made by the board of supervisors under paragraph 3522, Civil Code of 1913, for the year 1924, and upon the manner of selecting the regular trial jurors from said list for said year by the clerk of the superior court, county recorder and chairman of the board of supervisors, the officers upon whom the duty of selecting such trial jurors is conferred by paragraph 3525, Id. The grounds of such challenge were (1) because the original list (dated January 14, 1924) did not contain the names of all persons within Maricopa county qualified and liable to serve as jurors; (2) because the original list had not been revised from time to time so as to keep such list as complete as practicable; and (3) because the officers whose duty it was to select from such list the trial jurors for 1924 had struck therefrom the names of persons of African and Spanish blood.

After a trial of the challenge as is provided in section 1017 et seq of the Penal Code, and after hearing the testimony offered by defendant in support thereof, it was disallowed, and a jury to try the case was impaneled. The clerk of the board of supervisors was questioned by the defendant, and testified that the jury list was made from registration books (of voters) of the various precincts of the county, leaving off those persons granted exemption from jury service, such as policemen and firemen, that he could not say that it was a complete list, but that he thought it was, and that the list had not been revised. The clerk of the court, a witness interrogated by defendant, testified that no discrimination against persons of African or Spanish blood was made in drawing the trial jurors for the year 1924. The original list with the certificate of the clerk of the board of supervisors was offered in evidence, as the record shows, but only the certificate was admitted, with the privilege to defendant of substituting a copy therefor. Neither the original list nor a copy of such list is in the record here. We have nothing therefore to show that it was...