State v. Jacobs

• Decision Date: 13 June 1963
• Docket Number: No. 1342,1342
• Citation: 382 P.2d 683,94 Ariz. 211
• Parties: The STATE of Arizona, Plaintiff, v. Foster JACOBS, Jr., Defendant.
• Court: Arizona Supreme Court

Page 683

382 P.2d 683

94 Ariz. 211

The STATE of Arizona, Plaintiff, v. Foster JACOBS, Jr., Defendant.

No. 1342.

Supreme Court of Arizona, In Division.

June 13, 1963.

Charles N. Ronan, Maricopa County Atty., Robert F. Owens, Deputy County Atty., for State of Arizona, Plaintiff.

Johnson, Roberts & Bluemle, by William H. Wood, Phoenix, for defendant.

BERNSTEIN, Chief Justice.

This is in answer to a question in a criminal case certified to this Court by the Superior Court of Maricopa County. Defendant was convicted of forgery. Motion for a new trial has been argued and taken under advisement. The defendant has not been sentenced.

The question is before this Court pursuant to Rule 346, Rules of Criminal Procedure, 17 A.R.S., which reads in applicable part:

'If * * * after verdict or finding of quilty but before sentence, any question of law arises which in the opinion of the trial court is so important and doubtful as to require the decision of the supreme court, the trial court may, if the defendant consents, certify the case to the supreme court so far as necessary to present the question of law arising therein, and thereupon all proceedings in the action shall be stayed to await the decision of the supreme court.' (Emphasis added)

The question certified is as follows:

'It is the opinion of the Court that that portion of the motion relating to the testimony concerning a 'mug shot' presents a question which should be certified to the Supreme Court of this State. Both counsel agree that the matter should be certified.

'IT IS ORDERED taking the Motion for a New Trial under advisement and continuing time for sentence subject to the preparation of a formal certification and ruling by the Supreme Court.'

An officer testified that defendant was arrested at 11:00 A. M. Another officer testified that on the same day, but without reference to the time, a 'mug shot' of defendant together with 'shots' of five other persons were shown to a state's witness for the purpose of identifying the defendant. The 'mug shot' had the defendant's number at the bottom of the full face and profile shots. It is conceded that the 'mug shot' was a police photograph of the defendant taken at the time of a previous arrest. The question of the witness and his answer in the presence of the jury was:

'Q. What was your purpose in going there?

'A. The purpose was to show him [the victim] mug shots of * * *'

The jury did not have an opportunity to view the picture.

Reference to a police photograph of a defendant by a state's witness in a criminal trial has been held prejudicial error as implying a prior criminal conviction. In Commonwealth v. Blose, 160 Pa.Super. 165, 50 A.2d 742, an officer called by the state testified he had used a 'penitentiary photograph' in apprehending the defendant. The court said:

'It must be conceded that if the situation was curable by admonition, the instructions were adequate for that purpose.

'The only inference which could be drawn from the testimony was that appellant was a former convict. It was incompetent and highly prejudical testimony, and although the court in its opinion denying a new trail reports that the case was tried in an ideal atmosphere, without altercation or feeling between the appellant's counsel and the district attorney, we are of opinion that its instructions did not and could not eradicate the effects of the statement. * * * The testimony must have left a deep and lasting impression of truth, and, for reasons presently to be developed, we cannot confidently assert that the instructions wholly abstracted it from the inter-play of impressions and convictions which generated the jury's ultimate conclusion.' 160 Pa.Super. at 168-169, 50 A.2d at 743-744.

And again in Hatchet v. United States, 54 App.D.C. 43, 293 F. 1010 an officer testified as follows:

"He [Hatchet] denied that he had ever been arrested before, and the photographer got a picture by the name of John Brown out of the gallery.' That after obtaining this picture the officers took appellant into the inspector's office, where the picture was shown him, 'and the inspector told him there he was under the name of Brown, and the finger prints compared and everything, and finally he admitted it was him." 293 F. at 1011.

The Court went on to say that the word...