Priestly v. State
| Decision Date | 05 March 1918 |
| Docket Number | Criminal 436 |
| Citation | 19 Ariz. 371,171 P. 137 |
| Parties | STANLEY PRIESTLY, Appellant, v. STATE, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the county of Yavapai. Frank O. Smith, Judge. Reversed and remanded, with directions.
Mr Robert E. Morrison and Mr. Allen Hill, for Appellant.
Mr Wiley E. Jones, Attorney General, and Mr. Geo. W. Harben and Mr. R. W. Kramer, Assistant Attorneys General, for the State.
Stanley Priestly was adjudged guilty of a misdemeanor, and appeals. He was charged with selling intoxicating liquor to one C. J Cooper, and asks a reversal of the judgment of conviction mainly upon the ground that he was not accorded a fair and impartial trial in the superior court.
The panel from which a jury was to be selected to try his case contained five men who, a day or two previously, had sat as jurors and rendered a verdict of guilty against the defendant in the case of State v. Larry Duff, in which case the defendant was charged with selling intoxicating liquor to one R. H. Bryant. These men, Cooper and Bryant, are detectives, and, together with one S. E Terry, were employed by Yavapai county to obtain evidence against those suspected of violating the liquor law. In this business Cooper, Bryant, and Terry were working together. It was on the testimony of these three detectives that the state relied for a conviction in each case. In the case of State v. Duff, the testimony of the prosecuting witness, Bryant, was corroborated by the testimony of Cooper and Terry, and in the case of State v. Priestly, the testimony of the prosecuting witness Cooper was corroborated by the testimony of Bryant and Terry. The main, if not the sole, defensive matter in both of these cases was the incredibility of the testimony of these three detectives, Bryant, Cooper, and Terry, and the credibility of the impeaching witnesses for the defendant. Except the names of the defendant, the evidence in each case was substantially the same and from the mouths of practically the same witnesses. According to the testimony, both Duff and Priestly were working as bartenders for Bob Birch in his place of business on Montezuma Street in the city of Prescott. The character of Birch's establishment became an important issue in each case, and was the subject of a mass of testimony pro and con. The testimony for the prosecution discloses that each of the defendants sold intoxicating liquor disguised in ginger ale; that it was the plan or scheme of Birch and these defendants, concocted by them to evade the law, to dispose of intoxicating liquor in this kind of a disguise. The character of the place in which these defendants were thus employed, the kind of persons who frequented there and patronized it, and the conduct of the employees and such persons thereabouts, all this was gone into by the prosecution with much detail of circumstance. In each case, to throw light upon the particular charge being tried and to corroborate the testimony given to prove the specific sale for which a conviction was asked at the hands of the jury, other sales of a similar nature were testified to by the three detectives. So connected and mingled were these offenses and the circumstances related by the witnesses that the trial of the case of Duff was practically a trial of the case of Priestly. Substantially the only difference in the two cases was the application of practically the same testimony by practically the same witnesses to different defendants. The conflict in the testimony for the state and that for the defendant in each case was sharp. The defensive matter in both cases was almost wholly upon the weight and credibility to be given by the jury to the testimony of the respective witnesses. Timely exception was made to the disqualification of these five jurors to be upon the panel, and they were each challenged for cause. Counsel for defendant put upon the record before the trial court with clearness and in detail the similarity of the case of State v. Duff, which these jurors had tried, with the case of State v. Priestly, the trial of which they were entering upon. These jurors, however, notwithstanding the similarity of the cases and their conviction in the Duff case upon practically the same evidence from the mouths of the same witnesses, were each emphatically of the opinion, in answer to questions put to them, that their knowledge of the Duff case, together with their verdict under oath, would not influence them against Priestly, but that each could give Priestly a fair and impartial trial relieved from any conviction they may have entertained in the Duff case. The challenges for cause were each overruled, and, after exhausting his peremptory challenges, appellant, Priestly, was forced to accept on the panel for the trial of his case a portion of the jury who had theretofore sat upon the previous case against Duff.
The Declaration of Rights in the Constitution of Arizona, article 2, section 24, provides:
"In criminal prosecutions, the accused shall have the right . . . to have a speedy trial by an impartial jury."
This constitutional guaranty to persons accused of crime, that they shall have a fair trial by an impartial jury, inures to the benefit of every accused, irrespective of his guilt or condition in life. Whether the existence of a state of mind on the part of the juror is such as will prevent him from acting with entire impartiality is ordinarily a matter that must be left largely to the wise discretion of the trial court. But when the exercise of such discretion in a given cause appears to be clearly erroneous under well-settled principles of law, the appellate court is bound to interfere.
The first admonition found in our Constitution, article 2, section 1, is that:
"A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government."
The benign policy of the law that causes shall be submitted to tribunals indifferent as between the parties must not be frittered away in exposition, nor the operation of so just and fundamental a principle be nullified in the practical administration of justice, however happy the breach in its observance may appear to those in any particular instance wherein a conviction would appear justifiable to such, though this fundamental right had been invaded. The right of trial by jury is justly dear to the American people. Our fathers brought the right to this country. They knew that men accused of crimes had been broken upon the wheel after being tortured into a confession at the rack. They and their forbears had experienced the practices of the Star Chamber and verdicts of guilty at the "Bloody Assizes" by a packed jury with the brutal and odious Jeffreys upon the bench to serve, not justice, but a monarch ambitious for autocratic power. With these horrors fresh in mind, or not in a remote historical sequence, it is not to be wondered at that the basic principle sounded in the Great Charter as the "bulwark of English liberties" has become the very warp and woof of our institutions. That as a people we have watched with jealousy and deep concern any...
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...is not subject to review by an appellate court unless clearly erroneous. 27 Ariz.App. at 624, 557 P.2d at 556; Priestly v. State, 19 Ariz. 371, 374, 171 P. 137, 138 (1918). Appellant maintains that it was impossible for the grand jury to purge itself of the prejudicial taint of evidence pre......
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...that they would sit upon this case with such an opinion previously formed without it influencing their action." Priestly v. State, 19 Ariz. 371, 171 P. 137, 139; 3 A.L.R. 1201. It is said that the "answers by these jurors to categorical questions, though doubtless intended to be truthful, a......
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... ... 419, 193 N.W. 244 ... "This ... constitutional guaranty to persons accused of crime, that ... they shall have a fair trial by an impartial jury, inures to ... the benefit of every accused, irrespective of his guilt or ... condition in life." Priestly v. State, 19 Ariz ... 371, 171 P. 137 ... "Many ... of the incidents of a common-law trial by jury are essential ... elements of the right. The jury must be indifferent between ... the prisoner and the Commonwealth. * * * The jury must also ... be summoned from the ... ...