Murray v. State

• Decision Date: 19 May 1917
• Docket Number: Criminal 419
• Citation: 165 P. 315,19 Ariz. 49
• Parties: JAMES MURRAY and ANDY JOHNSON, Appellants, v. STATE, Respondent
• Court: Arizona Supreme Court

165 P. 315

19 Ariz. 49

JAMES MURRAY and ANDY JOHNSON, Appellants, v. STATE, Respondent

Criminal No. 419

Supreme Court of Arizona

May 19, 1917

APPEAL from a judgment of the Superior Court of the county of Cochise. O. J. Baughn, Judge. Dismissed as to Murray and affirmed as to Johnson.

Mr Alexander Murry and Mr. S. K. Williams, for Appellants.

Mr Wiley E. Jones, Attorney General, and Mr. Geo. W. Harben and Mr. R. W. Kramer, Assistant Attorneys General, for the State.

OPINION

ROSS, J.

The appellants were tried and convicted on the charge of introducing whiskey into Cochise county, Arizona, from the state of New Mexico, in violation of the prohibition amendment. From the judgment of conviction, they appealed.

Appellants complain of certain stagings or settings of the courtroom which they claim were calculated to prejudice their rights in the eyes of the jury. It was the custom of the trial court to cause to be placed upon a blackboard in the trial courtroom in the morning before opening court the title of each case to be tried during the day. On the day this case was called for trial, there appeared on the blackboard in plain view of the jury the following calendar for the day:

"No 712: State v. Andy B. Johnson.

"No. 835: State v. Andy B. Johnson and James Murray.

"No. 844: State v. Andy B. Johnson and James Kilcoyne."

The prosecution had also brought into the courtroom and placed in view of the jury panel as they assembled in the courtroom the following: Twenty cases of whiskey admittedly the whiskey the defendants were charged with introducing into the state in the present case; eight cases of whiskey identified with cause No. 844; and twelve cases of whiskey identified with cause No. 712.

Upon the opening of court, and before the jury was drawn and impaneled, appellants moved the court to strike from the blackboard the number and title of all cases against appellant Johnson, excepting the one then to be tried, and also to order removed from the courtroom the 20 cases of whiskey identified with causes Nos. 712 and 844. The court's denial of this motion is assigned as error.

It must be admitted that the case was well and attractively staged and the settings admirably placed for the performance about to take place. Indeed, it was staged with as little regard to the forms of law as the average scenario trial in a moving picture show. The appellant Johnson was placarded upon the blackboard not once, but thrice; he had fractured the majesty of the law as many times as the cock had crowed before Peter forsook his Master. The jury was warned that he was at least adept, if not an expert, in the art of bootlegging; they were thus notified that he was a habitual lawbreaker and a bad man generally.

The more to impress them of his criminal tendencies and the certainty of his guilt, booties galore of his prowess in his particular field of operation were displayed in the courtroom. In addition to the 20 cases of wet goods involved in the case on trial, 20 more cases, presumably the fruits of his exploits at other times and occasions, were present in the courtroom for the purpose of letting the jury have an insight into all other charges then pending against appellant Johnson. While professedly trying one case against appellant Johnson, adroitly and cunningly, with the sanction of the court, the stage of action was so arranged and set as to throw upon the canvas in plain view of the jury a multiplicity of crimes in which he was accused of participating.

Everyone charged with crime is entitled to a fair and impartial trial, and this is true whatever the character or grade of the offense. The scales of justice should always be adjusted for all alike. Neither many nor flagrant violations of the law, nor public clamor for convictions, should have any place or influence in a court of justice. The same rules of evidence and the same orderly and dignified conduct should be observed in the trial of all cases.

While the custom of the court in placing upon the blackboard the trial calendar of the day is commendable, in that it advises litigants and lawyers alike to be ready on the call of their cases, yet in this case it was likely to prejudice the rights of appellant Johnson, and therefore should not have been exposed to the jury at all. The court should have cleared the blackboard of the other two cases on his own motion and without being requested to do so by appellant Johnson.

The fruits of crime and the means and instruments with which crimes are committed are frequently introduced in evidence, and may generally be said to be competent when there is any controversy as to the manner in which the crime was committed or the means used in its commission. In the present case, the crime charged was the introduction of whiskey into the state from without the state. The corpus delicti, therefore, was the introduction of the liquor. There was no question as to the character of the liquor or as to its quality or as to the ownership or its possession -- all of these were conceded. That being true, we are unable to see why any of the whiskey should have been paraded before the jury, unless it was to arouse prejudice and bias in the minds of the jury against the appellants. But, had the issue been so framed as to admit in evidence the 20 cases charged to have been introduced in this case, surely that was all and enough. Indeed, the other 20 cases were not offered in evidence, but they stood as mute witnesses of other devious and oblique conduct of at least one of the appellants.

As above indicated, the only issue between the state and appellants was as to whether the appellants had introduced the 20 cases of liquor from New Mexico into Arizona; as to whether the appellants had themselves brought the liquor into the state, or had caused it to be brought into the state. The fact in dispute, then, was the manual transference of the liquor across the state line. On this issue it was not necessary to have the liquor on exhibition. An inspection of it would have no tendency to prove it of New Mexico origin, or that it had crossed the line from New Mexico into Arizona. If they brought it or caused it to be brought from New Mexico into Arizona, it was a fact to be proved, as any other fact, by direct and by circumstantial testimony and by admissions and confessions of appellants.

The evidence upon this issue is succinctly: The sheriff and the deputy sheriff of Cochise county on the twenty-ninth day of January, 1916, on the Borderland route which leads through Douglas, Arizona, to Rodeo, New Mexico, about 20 miles west of the New Mexico line, met the appellants, who were headed from the direction of Rodeo toward Douglas with an automobile containing 20 cases of Whiskey. The deputy sheriff said Johnson told him that they got the whiskey three-quarters of a mile inside Arizona; that he paid $284 for it, and that it cost him $10 more to get it on this side of the line; that he had the whiskey delivered to him on...