State v. Levice
| Decision Date | 19 October 1942 |
| Docket Number | Criminal 927 |
| Citation | 59 Ariz. 472,130 P.2d 53 |
| Parties | STATE OF ARIZONA, Appellee, v. J. C. LEVICE, CHARLES SANDERS and GRADY B. COLE, Appellants |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General and Mr. W. E. Polley, Assistant Attorney General; Mr. John Pintek, County Attorney, and Mr John F. Ross, Chief Deputy County Attorney, for Appellee.
Mr. J D. Taylor, for Appellants.
On Januart 17, 1942, the appellants were accused, by information filed in the superior court of Cochise County, of the crime of willfully, unlawfully and feloniously murdering one Coy C Qualls on January 8, 1942, and were brought into court for arraignment the day the information was filed. At that time the court appointed an attorney to represent them and after reading the information to them they waived the time to plead and entered pleas of guilty.
After the pleas of defendants had been entered, the court notified their attorney that on the 21st day of January, 1942, three days following the taking of the pleas, a hearing would be had by the court to determine the seriousness and gravity of the crime in order to assist the court in arriving at the proper punishment and sentence to be imposed on the defendants on their pleas of guilty. At the appointed time the defendants were brought into court, their attorney being present, and the court proceeded to hear the facts respecting the offense, the defendants and their attorney being invited, by the court, to furnish any facts they had or desired to present, in mitigation of the offense. After hearing the facts, the court proceeded to pass sentence on the defendants in the following manner: The court said:
In reply to this question Levice made a statement in his behalf, whereupon the court said:
"Grady B. Cole, have you anything to say why judgment of the Court should not be pronounced against you at this time?"
Grady B. Cole then made his statement and when he had finished the court said: "Charles Sanders: what have you to say?"
After each of the defendants had made a statement as to his connection with the offense, the court proceeded with the sentence as follows:
Two errors are assigned. The first is that since the information was filed against the three defendants jointly and they each plead guilty, the judgment and sentence should have been separately, and not jointly, imposed. In other words, they contend, if I understand their position, that the court should have had the defendants stand up, one at a time, and have imposed judgment and sentence on that particular defendant, and so on with the other two, instead of having all of them arise and using the language described above. There is no statute in Arizona specifically requiring that judgment and sentence be separately imposed where two or more defendants are jointly informed against and jointly prosecuted, though it is clear that what the court did in this case amounted to this. After each defendant was told to stand up and asked if he had anything to say why the judgment of the court should not be pronounced against him, the court did use the word "you" in speaking to them, yet it called each of them by name in telling them that they had entered a plea of guilty to the crime of murder and again when it advised them that they were adjudged guilty of the crime of murder in the first degree and should suffer the punishment of death therefor. This surely applied to each of them individually and personally and no one could possibly have understood it otherwise. A joint judgment and sentence is necessarily one enforcible against either of two or more defendants and it is apparent that the judgment and sentence imposed on these defendants was not such a judgment since the punishment inflicted is such that no one of them could do more than satisfy that imposed on himself. We have been cited by appellants to no case which upholds their view, except one in a jurisdiction in which the statute of that state specifically required that where several defendants are jointly tried the punishment of each, in case of conviction, must be assessed separately. State v. Johns, 259 Mo. 361, 168 S.W. 587. In the following cases the courts upheld sentences of the nature of that imposed in this case: Edmond v. Gretten, 174 Iowa 731, 156 N.W. 828; State v. White, 125 Tenn. 143, 140 S.W. 1059, Ann. Cas. 1913C, 74; State v. Hollenscheit, 61 Mo. 302; State v. Johns, supra. Under the statutes, it must be just as clear that the sentence is imposed upon each defendant when jointly indicted and prosecuted, as it is where only one defendant is involved, for as said by the court in State v. White, supra [125 Tenn. 143, 140 S.W. 1060]:
"...
The second assignment is that the court erred in considering a purported confession of the defendant Cole, made in the State of Texas, in determining the punishment imposed. It appears that defendants made a written confession of the crime after they were apprehended in the State of Texas and on January 21, 1942, at the time of sentence, the court asked defendant Cole if he had made a confession of the crime and then requested the county attorney to show Cole the purported confession and ascertain if he recognized it. Thereupon the attorney for defendants objected...
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State v. Kruchten
...They may be admissible to determine the extent of the punishment after pleas of guilty in a first degree murder case. State v. Levice, 59 Ariz. 472, 130 P.2d 53. This latter course was the one chosen by Brandt. We find no conflict between the appellants prior to the decision to enter pleas ......
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Sims v. Eyman
...may consider many matters in mitigation or aggravation which would be inadmissible on the issue of guilt or innocence. State v. Levice, 59 Ariz. 472, 130 P.2d 53 (1942). On the other hand, when a first degree murder case is tried before a jury, the jury sets the punishment. Though a death s......
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