State v. Owens

• Decision Date: 20 November 1968
• Docket Number: No. 1800,1800
• Citation: 103 Ariz. 541,447 P.2d 233
• Parties: STATE of Arizona, Appellee, v. Andrew OWENS, Appellant.
• Court: Arizona Supreme Court

Page 233

447 P.2d 233

103 Ariz. 541

STATE of Arizona, Appellee, v. Andrew OWENS, Appellant.

No. 1800.

Supreme Court of Arizona, In Banc.

Nov. 20, 1968.

Gary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.

Richards & Heilman, by Harlan Heilman, Yuma, for appellant.

STRUCKMEYER, Justice.

Andrew Owens and Walter Graves were jointly informed against and tried for robbery in the Superior Court of Yuma County. Trial was held on Wednesday, February 1st, 1967, each defendant being represented by his own counsel. The trial court ordered a directed verdict of acquittal in favor of the defendant, Graves, and the State then called Graves to the witness stand. He was cross-examined at that time by counsel for Owens. The jury was unable to arrive at a verdict and the court declared a mistrial, discharging the jury. Graves was released from custody on Wednesday evening, February 1st, 1967, and on Friday, February 3rd, 1967, the case was set for retrial on Wednesday, February 8th, 1967.

A subpoena was issued for Graves on Friday, February 3rd, 1967, after the case was set for retrial, but Graves who was an itinerant negro laborer could not be found in the area in which he formerly frequented and could not be subpoenaed to testify in person. Pursuant to Rule 256 of 17 A.R.S., Rules of Criminal Procedure, a certified transcript of Graves' testimony at the trial of the previous Wednesday was read to the jury over Owens' objection. From the judgment of guilty he brings this appeal.

It is first urged that it was error for the trial court to permit a reading into evidence of the transcript of the first trial of the testimony of the absent witness, Graves. Rule 256, 17 A.R.S., Rules of Criminal Procedure provides that the testimony of a witness may be read in evidence if the witness is beyond the jurisdiction of the court. It reads:

'Rule 256. Use of transcript of testimony of dead or absent witness

'When in any court of record the testimony of any witness in a criminal action is reported by an official court reporter and certified by him to be correct and thereafter the witness dies or is beyond the jurisdiction of the court in which the action or proceeding is pending and his absence is not procured by the party offering the evidence, either party to the record may read in evidence the testimony of the witness in any subsequent trial or proceeding had in the same action or proceeding subject only to the same objections that might be made if the witness were testifying in open court.'

The jurisdiction of the Superior Court of Yuma County is, of course, the State of Arizona, and the processes of the Superior Court of the State of Arizona run throughout the entire State of Arizona, Sam v. State, 33 Ariz. 383, 265 P. 609. This court recently said:

'A return of the sheriff showing inability to serve a subpoena on the witness is a preliminary showing of absence, but it is not conclusive on the subject. Either party may supplement or contradict the showing. Sam v. State, supra. The ultimate test as announced in the Sam case, is whether the court is satisfied the witness is beyond its jurisdiction.' State v. Head, 91 Ariz. 246, 371 P.2d 599.

It is apparent that this state is committed to the rule that the determination of whether a witness is beyond the jurisdiction of the court so that his personal attendance cannot be had is a matter within the sound discretion of the trial court. In this as in other discretionary matters we will not reverse the judgment of the trial court unless it appears that there is a palpable abuse of discretion.

In considering the extent to which altempts must be made to locate an absent witness we note the observations of the Criminal Court of Appeals of Oklahoma in Carson v. State, 54 Okl.Crim. 104, 16 P.2d 265, wherein the court said:

'In view of the fact that this witness was unemployed and had no fixed above, the same effort or attempt to locate would not be required as in the case of a witness who had a fixed place of residence and might reasonably be expected to be found.'

In State v. Head, supra, subpoenas were sent to the sheriffs of every county, but we do not think this is necessarily required to establish that a diligent effort has been made to locate an absent witness. Where there is evidence tending to show that the witness has departed from the state, the trial court is justified in holding that the prosecution is not required to show that subpoenas requiring the attendance of the witness had been issued and sent to the sheriffs of every county within the state. People v. Noone, 132 Cal.App. 89, 22 P.2d 284.

In the instant case a subpoena was issued on Friday, February 3rd, 1967, the day that the case was set for retrial. It was given to a detective sergeant of the Yuma Police Department who on the same day went to what is described as the 'Beauvais Flat' area, apparently the negro section of Yuma. There he inquired concerning Graves and was unable to find him. He was told that Graves had said to a person called 'Foots' that he, Graves, was going to Indio, California, to look for work and also he thought that Graves had some relatives in Tucson or 'in some place down in that area of Arizona.' Thursday afternoon was the last time that Detective Sergeant Carl Cansler could place Graves as being in the 'Beauvais Flat' area.

The subpoena was thereafter turned over to Deputy Sheriff William L. Barcus, who on Monday went back to the negro area and questioned a number of people 'and they stated that they did not know where he was, that he left town to their knowledge.' Counsel for defendant stipulated as to the subpoena that 'if a return was made it would show that it hadn't been served.'

While the evidence that the witness Graves was beyond the jurisdiction of the court is slight, we think it is sufficient to sustain the discretion of the trial judge. As pointed out, Graves is seemingly an ininerant negro laborer with no fixed abode. The trial court could conclude on the evidence that it is...