State v. Webb

• Court: Arizona Supreme Court
• Writing for the Court: BERNSTEIN; STRUCKMEYER
• Citation: State v. Webb, 419 P.2d 91, 101 Ariz. 307 (Ariz. 1966)
• Decision Date: 13 October 1966
• Docket Number: No. 1572,1572
• Parties: The STATE of Arizona, Appellee, v. Charles E. WEBB and Don B. Smith, Appellants.

Page 91

419 P.2d 91

101 Ariz. 307

The STATE of Arizona, Appellee, v. Charles E. WEBB and Don B. Smith, Appellants.

No. 1572.

Supreme Court of Arizona, In Banc.

Oct. 13, 1966.

Rehearing Denied Nov. 15, 1966.

Darrell F. Smith, Atty. Gen., and Gary K. Nelson, Asst. Atty Gen., for appellee.

John A. Metheany, Phoenix, for appellant Charles E. Webb.

James P. Cunningham, Phoenix, for appellant Don B. Smith.

BERNSTEIN, Vice Chief Justice.

Defendants appeal from judgments of conviction entered by the Maricopa County Superior Court for their of money by false pretenses in violation of A.R.S. § 13--661, subsec. A, par. 3. Their appeals, having been consolidated before this court, will be considered together.

The only facts which need be presented concern the impaneling of the grand jury. Prior to the swearing in of any of those prospective grand jurors answering to the roll call, the court found good cause to excuse six of those present for reasons of illness, professional exemption, business commitments, or, in one case, a conflicting court appearance. Several other persons had been previously excused, a fact which was noted by the court.

Upon the county attorney's suggestion, the court then administered the oath to the prospective jurors still present for the purpose of examining their qualifications. After this examination the court excused a teacher, a high school principal and a gentleman in poor health.

Next, the court reviewed the exemptions listed in A.R.S. § 21--202 and excused ten people, seven of whom fell within the exemption statute, two who had business hardships, and one who suffered bad health. In addition, five persons were excused for unreported reasons and one person was excused because of his poor English.

The court then had the clerk call twenty-one jurors in the box and they were sworn. At this point the county attorney mentioned the qualifications contained in A.R.S. § 21--201 and the judge said anyone not qualified could see him in chambers. The record does not indicate that any others were excused.

One of the five persons excused for unreported reasons was a lawyer. Because he was late in returning from a recess, he was not present when the court excused him. He was later to testify that he had been anticipating the grand jury duty and that he had been anxious to serve. Nevertheless he was excused in this instance because the county attorney advised the court that the lawyer might be a witness in the trial of matters to be examined by the grand jury.

Defendants contend the grand jury was improperly impaneled becuase the prospective jurors excused for exemptions listed in A.R.S. § 21--202 did not comply with the A.R.S. § 21--203 procedure for claiming exemptions. They also contend that the trial court failed to examine the qualifications of the jurors as required by Rule 82, Rules of Criminal Procedure, 17 A.R.S. The fact that the county attorney mentioned the qualifications stated in A.R.S. § 21--201 had no effect, claim defendants, because he acted after the jury had been sworn. Had a juror been unqualified he could not have been challenged. Rule 86, Rules of Criminal Procedure, 17 A.R.S. Defendants further claim that the court erred when it excused the lawyer when he was out of the presence of the court. It is contended that the lawyer was entitled to be present by virtue of Rule 87, Rules of Criminal Procedure, 17 A.R.S., which provides in part that 'All challenges shall be tried by the court.' Defendants construe the quoted language to mean a prospective juror is entitled to be present at a 'trial' to determine his qualifications. Defendants assert that the above rule and statutory violations constitute prejudice per se.

Arizona has very few decisions dealing with defects in grand jury impanelment, although we have held that when the trial court excuses prospective grand jurors we will presume, in the absence of contrary evidence, that it acted property. Territory of Arizona v. Barth, 2 Ariz. 319, 15 P. 673. This principle applies to those grand jurors excused by the court for undisclosed reasons.

We also think the principles governing the selection and qualification of petit juries are applicable to grand juries unless otherwise specifically prescribed. Indeed, it is apparent that petit jury defects will compel a reversal sooner than grand jury defects since the petit jury is directly responsible for the defendant's ultimate guilt or innocence. We have held that a conviction will not be reversed for error in the selection of a petit jury unless the defendant shows actual prejudice. State v. Narten, 99 Ariz. 116, 407 P.2d 81; State v. Sorrell, 95 Ariz. 220, 388 P.2d 429. In the instant case, defendants have not attempted to show actual prejudice,...