Pfeiffer v. State

• Citation: 35 Ariz. 321,278 P. 63
• Decision Date: 03 June 1929
• Docket Number: Criminal 688
• Parties: JOHN F. PFEIFFER, Appellant, v. STATE, Respondent
• Court: Supreme Court of Arizona

278 P. 63

35 Ariz. 321

JOHN F. PFEIFFER, Appellant, v. STATE, Respondent

Criminal No. 688

Supreme Court of Arizona

June 3, 1929

APPEAL from a judgment of the Superior Court of the County of Pima. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded, with directions to grant new trial.

Messrs Kingan & Darnell and Mr. John L. Van Buskirk, for Appellant.

Mr. K Berry Peterson, Attorney General, and Mr. Charles L. Strouss Assistant Attorney General, for the State.

OPINION

ROSS, J.

John F. Pfeiffer was convicted of embezzling $1,213 belonging to Pima county during or while he was a deputy assessor of said county.

On this appeal he assigns errors as follows: (1) The denial of his motion to quash the indictment, the ground of said motion being that the grand jury that returned the indictment had no legal evidence before it but only incompetent testimony and hearsay. (2) A statement to the jury, under circumtances hereafter detailed, as follows: "Now, gentlemen, we have been sitting on this case about two weeks now, and to have a mistrial of the case would be very, very undersirable. It is very desirable that the jury agree on some verdict in this case. It puts the county to a tremendous expense to try a case of this kind, and to have a mistrial is simply a waste of time. It seems to me that you twelve men ought to be able to get together in this case and agree on some verdict, and I am going to give you plenty of time to do it. I can stay here all the rest of this week if necessary." And (3) in refusing to grant a new trial upon his motion, presenting as grounds therefor the grounds of errors 1 and 2.

On the motion to quash the court heard evidence and decided against movant. If when it is charged by motion to quash that the grand jury had no evidence before it, or that all the evidence was hearsay, it is permissible procedure under our laws to take evidence thereon, we think, it appearing that some evidence was before the grand jury, the trial court's decision is conclusive. The statute, section 918 of the Penal Code of 1913, provides that a grand jury in its investigations can receive in evidence oral testimony of witnesses, legal documentary evidence, and depositions properly taken, but there is no provision as to the quantum of this evidence.

However, we do not think the question of the sufficiency or character of the evidence received by the grand jury can be raised by motion to quash. Section 971, Id., provides that the defendant upon his arraignment may move to set aside, demur or plead to the indictment or information, and section 972, Id., enumerates the grounds upon which an indictment must be set aside. None of these grounds is the insufficiency or the hearsay character of the evidence received by the grand jury in its investigation of the charge against the accused. As we understand it, the statutory grounds for vacating or setting aside an indictment or information are exclusive. In People v. Collins, 60 Cal.App. 263, 212 P. 701, it is said that, where the statute expressly sets forth the grounds upon which an indictment may be set aside it cannot be set aside for any reason other than those mentioned. In effect we think that is the holding of this court in Richardson v. State, 23 Ariz. 98, 201 P. 845; Thomas v. Territory, 11 Ariz. 184, 89 P. 591.

The courts are not in agreement on this proposition as may be seen by an examination of State v. Chance, in 31 A.L.R. 1467, and note thereto at page 1479 (29 N.M. 34, 221 P. 183).

The details leading up to the court's statement, which is assigned as error No. 2, are set out in the Attorney General's brief, and we believe correctly, and are: "The case was submitted to the jury at 5:30 o'clock P.M., Wednesday, May 9, 1928. At about 9:30 o'clock Thursday morning, May 10, 1928, the jury was returned into court in charge of the bailiff. The judge asked the jury if a verdict had been reached and was informed by Juror Brinegar that it looked hopeless. The judge then informed the jury that he understood they had some request to make. Juror Brinegar replied that a few of the jurors desired that some of the instructions given be read to them. The judge then asked if any other jurors had any requests to make. Receiving no reply, the judge then made the statement here complained of, after which the instructions theretofore given were read in full to the jury." The jury then retired, and at 4:30 P.M. of the same day returned a verdict of guilty.

It is contended by defendant (a) that the court's statement in effect told the jury that the judge would hold them over Thursday, Friday and Saturday, unless they agreed at an earlier date, and was therefore coercive. (In this connection we should explain that the judge presiding and who made the above statement was not the regular judge, but was one of the judges of the superior court of Maricopa county sitting in the place of the regular judge of Pima county. Hence the significance of the words: "I can stay here all the rest of this week if necessary.") (b) that it invaded the jury's province; and (c) that it was a comment by the judge upon the facts and the weight of the evidence. We will consider these features of the court's statement, so objectionable to defendant, in their reverse order.

The jury's province under our system of laws is to judge and determine the facts, and with the performance of this duty the judge is forbidden to interfere. When the Constitution was adopted in 1912 the supremacy and independence of the jury as the fact-finders was so jealously regarded that there was inserted in that instrument, as section 12, article 6, this language: "Judges shall not charge juries with respect to matters of facts nor comment thereon, but shall declare the law."

This provision is word for word section 16 of article 4 of the Constitution of the state of Washington, and probably was taken therefrom. The courts of the latter state have, in several cases in considering said provision, given expression to what the judge may or may not do or say in instructing a jury. The last case to speak of its meaning is State v. Roberts, 144 Wash. 381, 258 P. 32, and in it the court said: "The trial court is not forbidden to make reference to the evidence, but is only forbidden to comment thereon."

In French v. Seattle Traction Co., 26 Wash. 264, 66 P. 404, is found the best exposition of that clause of their Constitution and the one most frequently quoted in subsequent cases. It is:

"What statements of the judge, in his charge to the jury, with reference to the evidence, will, and what will not, amount to a comment upon the facts within the meaning of the constitutional inhibition, are questions not always easy of solution; but it cannot be meant by this clause of the constitution that the court shall not refer to the evidence at all. Necessarily, his charge must be based upon the evidence, and he must 'declare the law' applicable to that state of facts which the evidence of either party tends to establish. In order to do this, the judge must refer to the evidence in some manner. We have said he may make such references hypothetically; that is, he may state to the jury, 'If you find from the evidence that such a state of facts exist, the law is as follows,' etc., although he may not state or assume in his charge that any particular fact is conclusively proven. Bardwell v. Ziegler, 3 Wash.St. 34, 28 P. 360; State v. Walters, 7 Wash. 246, 34 P. 938, 1098. If the judge may, in his charge to the jury, refer to the evidence thus indirectly, there would seem to be no very good reason why he may not do so directly; and we think, so long as the reference made does not amount to an explanation or criticism of the evidence, or assert or assume that a particular fact is proven thereby, it matters little what form the reference takes." (Italics ours.)

By no plausible construction can it be said the court's statement to the jury standing alone was an explanation or criticism of the evidence or an assertion or assumption of any particular fact in the case. While the judge said in effect that he thought the jury ought to be able to agree on a verdict, there was no vocal intimation as to what that verdict ought to be other than "some verdict," that is, either guilty or not guilty. It is as easy to extract from the judge's language a desire for acquittal as a wish for conviction. We think the judge by his words very carefully and successfully hid from the jury his opinion as to what the verdict should be. It is the circumstances under which the statement was made that gives it a significance not apparent from the printed word. The defendant had at the close of the case, in the presence of the jury, moved for a directed verdict, which motion was denied. Sixteen hours after the jury had been considering of their verdict they returned into court and requested that the original instructions be read to them. It was then, and preliminary to reading the instructions, that the judge made the observations which defendant contends were a comment on the evidence. It is contended that, if there was no evidence of defendant's guilt, it was the duty of the court to have directed a verdict in his favor; that refusing to do so by overruling defendant's motion the judge indicated that, so far as he was concerned, he was satisfied of defendant's guilt and that, when he said, "It is very desirable that the jury agree on some verdict . . . that you twelve men ought to be able to get together in this case and agree on some verdict," he meant, and the jury so understood, a verdict of guilty. While to the members of the bar the legal implication of an order overruling a motion for a directed verdict for defendant is not as stated, it might...