Perez v. Territory of Arizona

Decision Date11 July 1912
Docket NumberCriminal 303
Citation125 P. 483,14 Ariz. 163
PartiesEDUARDO PEREZ, Appellant, v. TERRITORY OF ARIZONA, Respondent
CourtArizona Supreme Court

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Edward M. Doe Judge. Affirmed.

The facts are stated in the opinion.

Messrs Clark, Haworth & Stewart, for Appellant.

Mr. G P. Bullard, Attorney General, for Respondent.

OPINION

CUNNINGHAM, J.

The defendant was indicted for the killing of Felicio Chacon, on August 14, 1910, at or near Congress Junction, Yavapai County, Arizona, to which indictment he pleaded not guilty. A trial was had, and the jury returned a verdict of guilty of murder in the first degree and fixed the death penalty. The judgment of the court followed the verdict, from which judgment, and from an order denying the defendant's motion in arrest of judgment, and from an order denying the defendant's motion for a new trial, he prosecutes this appeal.

The defendant assigns a number of errors, which we shall consider, but not in the order of their assignment.

Defendant's seventh assignment of error is based upon the order overruling his motion in arrest of judgment. This motion alleges irregularities in the drawing and impaneling of the grand jury which returned the indictment upon which the trial was had, contending that such irregularities render the trial and conviction upon an indictment by said grand jury wholly void, and allege that the trial jury which convicted the defendant was illegally drawn and impaneled.

The record filed in this court by the defendant fails to incorporate the minutes of the drawing of the grand jury, but the alleged record is presented in the form of appellant's motion in arrest of judgment, supported by affidavits. The record discloses no challenge to the panel of the grand jury, nor any motion to quash the indictment by reason of any irregularities committed in the organization of the grand jury.

A person held "to answer to a charge for a public offense can take advantage of any objection to the panel or to an individual grand juror in no other mode than by challenge." Sec. 797, Pen. Code Ariz., 1901.

When, by statute, a particular way is prescribed to raise an objection, and the party neglects to pursue the statutory way, and the objection is one which could have been cured at the time, if attention had been called to it, he must be adjudged to have waived such objection. He must assert his privilege in the proper way and at the proper time, or he is deemed to have waived it. Montgomery v. State, 3 Kan. 263; In re Wilson, 140 U.S. 575, 35 L.Ed. 513, 11 S.Ct. 870; Thomas v. Territory, 11 Ariz. 184, 89 P. 591.

The appellant is likewise deemed to have waived the objections raised to the impaneling of the trial jury, under the authorities cited above.

A number of assignments are based upon alleged error committed by the court in its rulings upon the admission and exclusion of evidence upon the trial of the case. The correctness of the reporter's transcript of the testimony is not certified to by the trial judge, and no bill of exceptions, other than the reporter's transcript, appears in the record.

This court held, in the case of Chavez v Territory, ante, p. 107, 125 P. 483, recently decided, that under the statutes now in force the rulings of the trial court with respect to the introduction or exclusion of evidence cannot be reviewed upon appeal to this court, in the absence of a bill of exceptions, unless the trial judge certifies to the correctness of the reporter's transcript. Romero v. Territory, 12 Ariz. 10, 95 P. 101; Molina v. Territory, 12 Ariz. 14, 95 P. 102. This court is therefore precluded from considering the assignments of error alleged by appellant based upon the introduction and...

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4 cases
  • Callaghan v. State
    • United States
    • Arizona Supreme Court
    • February 25, 1916
    ... ... continuance is granted. In Eytinge v ... Territory, 12 Ariz. 131, 100 P. 443, it is said: ... "The granting or withholding of a ... court has many times so declared. Chavez v ... Territory, 14 Ariz. 107, 125 P. 483; Perez ... v. Territory, 14 Ariz. 163, 125 P. 483; ... Shaffer v. Territory, 14 Ariz. 329, 127 P ... ...
  • State v. Howard
    • United States
    • Arizona Court of Appeals
    • August 10, 2010
    ...because the record reflects no confusion or doubt about T.'s identity, nor has Howard alleged any. See Perez v. Terr., 14 Ariz. 163, 165-66, 125 P. 483, 484-85 (1912) (no prejudice to defendant where name on indictment and actual name of victim had same derivation); State v. Hall, 136 Ariz.......
  • The State Of Ariz. v. Howard
    • United States
    • Arizona Court of Appeals
    • August 10, 2010
    ...because the record reflects no confusion or doubt about T.'s identity, nor has Howard alleged any. See Perez v. Terr., 14 Ariz. 163, 165-66, 125 P. 483, 484-85 (1912) (no prejudice to defendant where name on indictment and actual name of victim had same derivation); State v. Hall, 136 Ariz.......
  • Talley v. State
    • United States
    • Arizona Supreme Court
    • July 1, 1916
    ...the record as it is presented to us. The indictment is sufficient, and the evidence in the case is ample to support the conviction." In the Perez case it was said: "We have carefully examined entire record presented. We think the instructions of the court fairly placed the law of the case b......

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