Quayle v. State

• Decision Date: 19 May 1917
• Docket Number: Criminal 410
• Citation: 165 P. 331,19 Ariz. 91
• Parties: CHARLES F. QUAYLE, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

165 P. 331

19 Ariz. 91

CHARLES F. QUAYLE, Appellant, v. STATE, Respondent

Criminal No. 410

Supreme Court of Arizona

May 19, 1917

APPEAL from a judgment of the Superior Court of the county of Navajo. John A. Ellis, Judge. Affirmed.

Messrs Jones & Jones and Mr. Louis Kleindients, for Appellant.

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

OPINION

CUNNINGHAM, J.

The appellant was charged with the commission of the crime of rape, on September 12, 1915, by a sworn complaint filed with a justice of the peace on the fourteenth day of September 1915. On September 27, 1915, the defendant appeared for the preliminary examination of the charge. Having examined the witnesses produced by the parties, the magistrate entered the following order, to wit:

"After listening to the evidence adduced, it appearing to the court that there is sufficient evidence to believe the defendant guilty as charged, I hereby order that he be held to answer the same and that his bond be fixed at $3,000."

On October 7, 1915, the county attorney of Navajo county filed an information in the superior court charging the defendant with the commission of the crime of violent rape on Eva Dick, on or about the twelfth day of September, 1915. The defendant, having been formally arraigned on the charge, entered his plea of not guilty.

On February 29, 1916, the defendant presented his motion to withdraw his plea of not guilty for the purpose of presenting a motion to set aside the information upon the grounds "that before the filing of said information he had not been legally committed by a magistrate for the crime of rape, or for any other crime." The motion was denied. The appellant urges as error the order of the court refusing to permit him to withdraw his said plea for said purpose.

The defendant thereupon moved for a postponement of the trial until the next jury term of the court, upon the ground and for the reason of the absence of a witness, Len Taylor. The motion is accompanied by an affidavit of the defendant setting forth that this party is a resident of the town of Winslow, and has been for many years last past; that a subpoena was issued for him on February 24th and placed in the hands of the sheriff of the county for service. The facts he expects to be able to prove by this witness are thereupon set forth in detail. He continues:

"That he [defendant] cannot prove said facts by any other witness. That he can procure the attendance of said witness, Len Taylor, at the next jury session of this court. That said testimony is material to defendant's defense. That the said witness is not absent by the consent or procurement of the defendant."

The county attorney in behalf of the state opposed the granting of the postponement of the trial on account of the absence of the witness Len Taylor, and in support of his opposition to such postponement filed an affidavit setting forth the diligence used by the county attorney to locate the said absent witness. A number of subpoenas were caused to be issued and placed in the hands of the sheriff of Navajo county and in the hands of the sheriffs of other counties of the state, and all of which have been returned not served because the witness could not be found. The county attorney in his affidavit denies that the witness would testify as contended by the defendant, and sets forth the substance of the facts the state alleges it can prove by the said witness in support of the charge, and alleges that the witness is not absent by the consent or procurement of the prosecution. Upon due consideration, the court denied the defendant's motion for a postponement of the trial. Such order is urged on this appeal as error.

The appellant in his brief complains that the court failed to admonish the jury as required by law upon a number of occasions when the jury retired from the court in charge of the bailiffs. The minutes of the court are silent upon this matter, but the question is raised for the first time on this appeal. This court must presume, the record being silent, that the trial court performed its duty, and will not inquire for the first time on appeal whether that duty has been violated; the record being silent with regard to the matter. The defendant was present at the trial and may have objected, and should have objected to any failure of the trial court to follow the prescribed procedure. We presume if defendant deemed his rights jeopardized by the alleged omission he would have timely objected, and if he saw and did not object, or failed to see any irregularity in the matter, he waived it, and cannot be heard to complain for the first time on appeal.

The appellant depends upon Fertig v. State, 14 Ariz. 540, 133 P. 99, as supporting his proposed motion to set aside the information. In that case we had before us for consideration the sufficiency of a commitment to justify the county attorney filing an information based thereon. The commitment in question ordered the defendant held to answer a charge of "felony," and the information filed charged the commission by the defendant of rape. There we said:

"The order of commitment may be for an entirely different offense from that charged in the complaint. The magistrate may hold defendant for 'any public offense' of which he has no jurisdiction to try and determine."

The commitment having recited that the defendant was held to answer the crime of felony, which was made to appear to the magistrate from the evidence adduced had been committed. The crime to answer which the accused is held must be determinable from the order committing the accused to answer. If, by an examination of the magistrate's order committing the accused to answer, the prosecuting attorney is able to definitely determine and exactly know the particular crime the accused has been held to answer, then it is the plain, simple duty of the prosecutor to prepare the information charging the accused with the commission of the offense for which the accused has been held to answer. In this case the magistrate examined the accused on a charge of rape, and from the evidence he became satisfied that the defendant is guilty "as charged" and held him to answer the "same." Could the prosecuting officer be mistaken as to what crime the magistrate believed had been committed for the commission of which the accused was held to answer? I think not. The crime for the commission of which the accused was held to answer was that charged in the complaint, and no other. Had the order of commitment declared that the magistrate believed from the evidence produced that a felony had been committed and thereupon ordered the accused held to answer the same, we would have then a parallel case with the Fertig case. The prosecuting attorney must be credited with having some degree of understanding, and so credited when he took up the order of commitment and found that this accused was held to answer a charge proven to the satisfaction of the magistrate. He could not be mistaken as to the nature of the charge proven, because a casual reference to the complaint by which the charge is set forth, and which was the matter examined into, reveals certainly, definitely, and exactly that the charge was one of rape alleged to have been committed by the accused upon Eva Dick. Had the prosecuting attorney, by the information filed, charged the defendant with the commission of a felony other than violent rape, the information would have been subject to dismissal under the principle laid down in the Fertig case.

The court correctly refused to permit the defendant to withdraw his plea of not guilty for the purpose of moving to set aside the information for the reasons and on the grounds urged.

The refusal of the trial court to grant the defendant's application to postpone the trial of the cause until the next jury term of the court, because of the absence of Len Taylor, a witness, was asserted as a ground for a new trial, and properly so, under subdivision 4 of section 1105 of the Penal Code of Arizona of 1913, to wit:

"When a verdict has been rendered against the defendant the court shall, upon his application, grant a new trial, in the following cases: . . . (4) When the court has committed any material error, calculated or tending to injure the rights of the defendant."

"When an action is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day." Section 1012, Penal Code 1913.

The cause shown by the affidavit of the defendant for a postponement of the trial consisted of the showing that the defendant expected to prove by Len Taylor, the absent witness, the following circumstances, briefly stated, to wit He expected Len Taylor to testify that defendant was introduced to Eva Dick as Charles Quayle, his true name; that Eva Dick, and two other persons, rode with the defendant in defendant's one-seated Ford automobile immediately following the first meeting and the introduction of the defendant to Eva Dick; that thereafter other rides with the like number of persons were had in the same automobile, and on each said occasion the time was at night after 8 o'clock, and on each of said occasions and rides the defendant drove the machine; that Eva Dick sat next to defendant, and another woman sat next to Eva Dick, and Len Taylor stood behind the seat; that on each of said occasions Eva Dick kissed and caressed the defendant a number of times while riding; that on the night of the 11th of September, 1915, the defendant, Eva Dick, Miss Shank, and Len Taylor started for a ride in the same machine, occupying about the same relative positions in the machine as above...