State v. Superior Court In and For Pima County

• Decision Date: 05 December 1966
• Docket Number: CA-CIV
• Citation: 4 Ariz.App. 373,420 P.2d 945
• Parties: The STATE of Arizona and Pima County, State of Arizona, Petitioners, v. The SUPERIOR COURT IN AND FOR the COUNTY OF PIMA, State of Arizona, and the Honorable John P. Collins, Judge of the Superior Court, Division One, In and For the County of Pima, Respondents. 2325, 2344.
• Court: Arizona Court of Appeals

Page 945

420 P.2d 945

4 Ariz.App. 373

The STATE of Arizona and Pima County, State of Arizona, Petitioners, v. The SUPERIOR COURT IN AND FOR the COUNTY OF PIMA, State of Arizona, and the Honorable John P. Collins, Judge of the Superior Court, Division One, In and For the County of Pima, Respondents.

2 CA-CIV 325, 2 CA-CIV 344.

Court of Appeals of Arizona.

Dec. 5, 1966.

Rehearing Denied Jan. 16, 1967. See 422 P.2d 393.

Darrell F. Smith, Atty. Gen., William J. Schafer, III, County Atty. of Pima County, Edward W. Scruggs, Sp. Asst. Atty. Gen., Tucson, for petitioners.

Johnson, Darrow, D'Antonio, Hayes & Morales, by Lawrence P D'Antonio, Tucson, for respondents.

MOLLOY, Judge.

This court has issued a writ of certiorari to review an order of the respondent-judge entered on October 11, 1966, requiring that a grand jury be called to immediate session and be discharged forthwith. The grand jury so affected was impaneled on December 7, 1965, by an order of the superior court, the Honorable Lee Garrett sitting as judge thereof.

The order of the respondent-judge was made in a criminal action entitled 'State of Arizona, plaintiff, v. Sol Ahee, defendant, No. A--15496,' pending in the superior court of Pima county. There had been filed in said action a motion to quash the indictment returned by the subject grand jury, charging the defendant with one count of bribery and five counts of perjury before the grand jury.

In a memorandum opinion and order, the respondent-judge granted the motion to quash the indictment in question, as to all counts thereof, and in addition made the order which is the subject of this appellate review, predicating this last portion of his order on both Rules 88 and 97, Rules of Criminal Procedure, 17 A.R.S. Rule 88 reads as follows: 'If a challenge to the panel is sustained, the grand jury shall be discharged.' Rule 97, insofar as pertinent, will be quoted hereafter in this opinion.

In the motion to quash the indictment, multifarious attacks were made questioning the propriety of the indictment. Several of these pertained to the manner of the impaneling of the grand jury, the method and purpose of its inquiries and the alleged disqualification of one grand juror, by reason of his being an internal revenue agent of the United States Government.

In directing a discharge of the grand jury, the respondent-judge indicated that under applicable rules of criminal procedure, the sustaining of a challenge to an individual grand juror would not justify the discharge of the entire panel. With this, we agree. Rule 84, Rules of Criminal Procedure, provides as follows:

'A challenge to the panel may be made only on the ground that the grand jurors were not selected or drawn according to law.'

Rule 89, Rules of Criminal Procedure, deals with a situation when a challenge to an individual grand juror is sustained, and this rule provides that the individual juror shall be discharged.

As cause for discharging the grand jury itself, the respondent-judge gave two basic reasons:

(1) that when the jurors summoned for grand jury duty appeared, the court and the county attorney did not examine them '* * * touching their qualifications as such jurors,' and

(2) that the purposes for which this grand jury was impaneled on December 7, 1965, had been served on February 7, 1966, and that not later than April 7, 1966, it should have been discharged.

Rule 82, Rules of Criminal Procedure, pertains to the examination of jurors called for grand jury service and reads:

'When a grand jury is drawn and appears, the court and the county attorney or other prosecuting officer Shall examine the jurors touching their qualifications as such jurors.' (Emphasis added)

It is the respondents' contention that this rule is mandatory and that a failure to examine the jurors summoned as to their statutory qualifications renders the impanelment proceeding void. There was no showing made in the lower court, nor is any attempt made here, to show that any one or more of the members of the grand jury in question do not have the qualifications specified by law.

The transcript of the impanelment of the subject grand jury before the Honorable Lee Garrett indicates that jurors were not questioned as to their statutory qualifications ¹ but only as to matters entitling one to be excused from jury duty, and as to matters going to disqualification because of bias.

The petitioner herein has asked this court to supplement the record with written statements purportedly taken from each prospective juror at the time of the impanelment, and certified copies of the affidavits of registration as electors as to each of the grand jurors, which purportedly are on file in the office of the county recorder of Pima county, which two documents together would indicate substantial compliance with all of the statutory requirements as to qualifications of jurors. We have refused to grant such a motion because in our opinion it exceeds the limits of what this court may take judicial notice in an appellate proceeding. Bade v. Drachman (Supplemental Opinion on Motion for Rehearing), 4 Ariz.App. 55, 417 P.2d 689, 702 (1966).

We proceed to determine whether the failure to comply with Rule 82 constituted such a defect as to render the impanelment void and to require a discharge of the grand jury. We believe Rule 84, Rules of Criminal Procedure, to be controlling:

'A challenge to the panel may be made only on the ground that the grand jurors were not selected or drawn according to law.'

We are led to this rule by Rule 169(A)(2)(a), Rules of Criminal Procedure, which provides that an indictment may be quashed upon the ground:

'That there was ground for a challenge to the panel or to an individual grand juror.'

As we subsequently point out, it was only in pursuance of this latter rule that the matter of the impanelment of the grand jury was before the respondent-judge.

It is the state's contention herein that the words '* * * not selected or drawn according to law' have a circumscribed meaning which does not include the examination of the jurors '* * * touching their qualifications * * *' in pursuance of Rule 82. The historical background of the subject rule and comparable provisions of our Rules of Criminal Procedure pertaining to petit juries convinces us that this contention is correct.

The institution of the grand jury is of ancient origin, going back in the history of England many centuries. 24 Am.Jur. Grand Jury § 3, p. 833; 38 C.J.S. Grand Juries § 1, p. 980. During most of its history there has been a selection process by which some person or persons in authority have selected out of the citizenry certain persons deemed to be of such character as to be suitable for grand jury service. At common law, the grand jurors were usually selected by the sheriff. 38 C.J.S. Grand Juries § 9, p. 995. In modern times, the concept that the constituency of the grand jury should not be left to the arbitrary selection of one or more officials has injected into the selection process a drawing, usually conducted in public according to statutory requirements. 38 C.J.S. Grand Juries § 9, pp. 995--996; 24 Am.Jur. Grand Jury § 18, p. 844. ²

The Howell Code showed evidence of this evolution in the selection of grand jurors:

'The judge of the district court, the probate judge and sheriff of the proper county, or any two of them, shall meet at the office of the clerk of the district court on the first Tuesday of March in each year, and at such other times as they may deem it necessary, and there proceed To select from the electors of such county, qualified to serve as jurors, not less than thirty-six nor more than fifty for grand jurors, and not less than forty nor more than sixty for trial jurors; and the persons so selected shall be subject To be drawn and summoned as such jurors for the year next ensuing, unless additions to such list are made, subject to the provisions of this chapter.' (Emphasis added)

The Howell Code, ch. XLVII, section 2, p. 293.

This concept of 'selecting' a grand jury list out of which a particular grand jury might be 'drawn' substantially persisted in our statutory law until the Revised Code of 1928. A major variation from this procedure appeared in the Compiled Laws of 1871, under which code the prerogative of selecting a grand jury was delegated to the sheriff, with few limitations upon his discretion. Compiled Laws of 1871, ch. XLVII, section 8, p. 383. However up to the 1928 Code, in each compilation or revision of our laws subsequent to that of 1871, ³ the 'selection' and 'drawing system prevailed. In each of these compilations and codifications there was provision that a challenge to the grand jury panel could be interposed for only certain limited reasons, which had to do with the manner of this selecting and drawing process. ⁴ The Revised Code of 1928 retained the substance of this history in these words:

'A challenge to the panel of a grand jury may be interposed only on the grounds that the requisite number of ballots was not drawn from the jury box, or that the drawing was not had in the presence of officers designated by law.'

Revised Code of 1928, section 4960.

Existing contemporaneously with this law strictly limiting the grounds of a challenge to a grand jury panel has been the requirement that grand jurors be examined '* * * touching their qualifications * * *.' ⁵

The 1928 Code, apparently without benefit of special statutory enactment, made a substantial change in the law pertaining to grand juries in that it eliminated the discretionary 'selecting' process, as provided that grand juries should be drawn from the jury list prepared by the board of supervisors. Revised Code of 1928, section 1913. This procedure, inaugurated by the 1928 Code, is substantially the same as that prescribed by present statutory law. A.R.S. sections 21--301, 21--313, and 21--314. But the legislative history remains to clarify the meaning of the words '*...