State v. Benham
| Citation | 58 Ariz. 129,118 P.2d 91 |
| Decision Date | 20 October 1941 |
| Docket Number | Criminal 910 |
| Parties | THE STATE OF ARIZONA, Appellee, v. GEORGE BENHAM, Appellant |
| Court | Supreme Court of Arizona |
APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, Assistant Attorney General, for Appellee.
Messrs Kimble & McLean, for Appellant.
The defendant was convicted of manslaughter and he has appealed.
The charging part of the information is in these words:
The specifications of the grounds of appeal are of rulings of the court in the course of the trial and the sufficiency of the evidence to support the verdict and the judgment. The first ruling complained of is the court's order denying defendant's request that the county attorney be required to furnish him a bill of particulars.
Section 44-712 provides that when the offense is charged as permitted in the preceding section "but fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense, or to give him such information as he is entitled to under the constitution of this state, the court may, of its own motion, and shall, at the request of the defendant, order the county attorney to furnish a bill of particulars containing such information as may be necessary for these purposes." It also provides that when the court deems it to be in the interest of justice that the facts not set out in the charge or any previous bill of particulars should be furnished, it may order the county attorney to furnish a bill of particulars containing such facts. Then follows this provision:
"In determining whether such facts and, if so, what facts, should be so furnished, the court shall consider the whole record and the entire course of the proceedings against the defendant." Sec. 44-712.
In view of the simplified forms of indictment and information under the new criminal procedure, bills of particulars assume an important place in criminal trials. What was formerly essential to allege in the indictment or information may now be supplied to a defendant in a bill of particulars.
The information charged the offense by name and also in accordance with subdivision (b), section 44-711, supra. It does not set out the means used by defendant to commit the homicide, nor was it necessary that it should. Sec. 44-717.
The defendant takes the position it was the mandatory duty of the court to order the county attorney upon his request to furnish him a bill of particulars. From the language of section 44-712, it is obvious that it was intended a defendant should not be forced to trial without first being fully informed of "the nature and cause of the accusation against him," as provided in section 24, article II of the state Constitution, and that such information should be "of the particulars of the offense sufficiently to enable him to prepare his defense." However, the bill of particulars is required to convey only "such information as may be necessary for these purposes." (Sec. 44-712.) The rule does not make it imperative to furnish a bill of particulars but requires it only when it is necessary, and it would seem that the question of the necessity for the defendant to be further informed of the particulars of the offense would rest in the sound discretion of the court. If, for instance, through earlier proceedings in the case a defendant is already in possession of all the facts and particulars of the crime, it would not be necessary to furnish him a bill of particulars and a refusal by the court to order the county attorney to furnish one would not be an abuse of discretion and error. The section (44-712) authorizes the court in determining what facts, if any, should be furnished a defendant, to "consider the whole record and the entire course of the proceedings against the defendant."
In all felony charges the accused must be given a preliminary trial and, if he does not waive the preliminary, the testimony in all cases, upon the request of the county attorney, must be reduced to writing or taken in shorthand and transcribed. (Sec. 44-316.) At such a proceeding ordinarily a defendant will be fully informed as to all the details of the crime, including the means used in committing the offense.
However, in this case we have only the attorney general's word for it that a preliminary was held and there is no showing whatever that at such hearing a trial was had or that the testimony was stenographically reported. It may have been waived by defendant. We do not know. Whether there was a preliminary trial or not, the trial court, we assume, was advised and considered, as he had a right to do, "the whole record and the entire course of the proceedings against the defendant." (Sec. 44-712.)
At all events, we think the request for a bill of particulars was complied with by the county attorney practically as soon as it was made. It is true it was not formally written out and filed in the case but it was taken down by the court reporter, in the formal statement by the county attorney to the jury as to what the state would prove, and reads as follows:
"In this case the State of Arizona will offer evidence to show that on the evening of October 14, 1940, Donald J. Haynes and his wife Thelma Haynes were walking on Country Club Road southerly towards Speedway between Drachman Street and Speedway; that at the time Haynes was carrying in his hand a small hand light, burning;... that Haynes and his wife were walking over to the side of the highway, and that while they were so walking there the defendant, Benham, approached them in his 1932 Plymouth sedan automobile and ran into them, then and there killing Thelma Haynes; that the defendant at the time of the operation of the vehicle had been drinking, that his car had practically no brakes on it, and that the headlights on his car were in such condition that an object in front of the car could not be seen by the headlights, and that he ran into them, killing Mrs. Haynes, as I told you; Mr. and Mrs. Haynes being taken away from the scene of the accident."
If the request for a bill of particulars had been made within a reasonable time before the day the case was set down for trial, and it had appeared to the court that the defendant did not already have the information as to the particulars of the charges sufficient "to enable him to prepare his defense" (sec. 44-712), we think the court should and would have ordered the county attorney to furnish a bill of particulars containing such information.
The provisions of the law with reference to furnishing a defendant the facts of the charge against him cannot be ignored or treated lightly. It has always been the law among right-thinking peoples, and we hope will continue to be the law in this land of ours, to require the state fully to inform the accused what he is charged with and to allow him time to prepare his defense, if he has one. The simplified rules of procedure do not take from a defendant one whit of a meritorious defense, but those rules do not tolerate defenses that only delay or obstruct the termination of criminal cases. An indictment or information that charges a homicide by name, as for instance, manslaughter, is good under the code, but one thus charged is entitled to know what the state expects to prove against him before he is put on his trial. It is no hardship on the state, and it is certainly due to the defendant, that he be told that the state will, for example, offer evidence of three criminal acts, to wit, that the defendant was driving his automobile while under the influence of intoxicating liquors, that his headlights were poor, and that his brakes were inefficient and because thereof he ran into and killed the deceased.
The bill of particulars has long been employed to inform a defendant of the facts of the charge more fully than the indictment or information. It is common-law pleading and most of the states of the Union have recognized it as a useful aid in the trial of those charged with crime. Its granting or refusal, however, under the common law was discretionary, not mandatory. 27 Am. Jur. 671, sec. 111 et seq.; State v. Robinson, 109 Mont. 322, 96 P.2d 265. The code procedure we are considering, in that feature, is, we think, much like the common law. The discretion of the trial court, however, should be exercised liberally to the end that no constitutional or statutory right be...
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