Territory of Arizona v. Turner

• Decision Date: 08 March 1894
• Docket Number: Criminal 90
• Citation: Territory of Arizona v. Turner, 37 P. 368, 4 Ariz. 290 (Ariz. 1894)
• Parties: TERRITORY OF ARIZONA, Plaintiff and Respondent, v. H. B. TURNER, Defendant and Appellant
• Court: Arizona Supreme Court

37 P. 368

4 Ariz. 290

TERRITORY OF ARIZONA, Plaintiff and Respondent, v. H. B. TURNER, Defendant and Appellant

Criminal No. 90

Supreme Court of Arizona

March 8, 1894

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. R. E. Sloan Judge.

Reversed.

Allen R. English, for Appellant.

The statement of facts shows that there was no evidence as to whether defendants were butchers, and the only way to show it in such a case is by the county records from the recorder's office; yet, in the absence of any evidence the jury were told that if they found from the evidence that the defendants were not butchers, etc. This was misleading and did mislead the jury.

Again, they were charged "not being butchers." It was a material inquiry, and should have been proven; for if they were butchers, it was only necessary to retain them for five days. Pen. Code, par. 973, and Laws 1889, p. 21. It was necessary to allege a negative. It was equally necessary to prove it.

The statement of facts shows that before any conspiracy was attempted to be proved the court, over defendants' objections and exceptions, admitted the testimony of the prosecuting witness, a self-confessed and paid detective, looking for a reward, as to statements made by co-defendants in the absence of and without the hearing of this defendant. This was error. 4 Am. & Eng. Ency. of Law. 631.

Francis J. Heney, Attorney-General, for Respondent.

Hawkins, J. Baker, C. J., concurs.

OPINION

The facts are stated in the opinion.

HAWKINS, J.--

The appellant was indicted, with others, for conspiracy to commit a misdemeanor,--viz., they, being persons not engaged as butchers, did conspire, etc., to kill cattle for sale, and not retain in their possession the hides taken off said animals, with the earmarks attached thereto, without any alteration or disfiguration of the brands or marks on said hides, for twenty-one days, etc., free to the inspection of all persons (Pen. Code 1887, par. 973, as amended 1889, p 21), and then charges several overt acts, substantially in the language of the said statute, of said parties, not being engaged as butchers in killing cattle, and not retaining the hides, etc. This statute makes the crime a misdemeanor, and the penalty for not so retaining the hides, etc., is a fine not exceeding two hundred dollars. Conspiracy is punishable by imprisonment in the territorial prison not exceeding one year, or by a fine not exceeding one thousand dollars. The statute regarding the crime of conspiracy provides that no agreement, except to commit a felony upon the person of another, or to commit arson or burglary, amounts to a conspiracy, unless some act besides such agreement be done to effect the object thereof by one or more of the parties to such agreement. Pen. Code, p. 701, par. 266. And upon a trial for conspiracy, in a case where an overt act is required by law to constitute the offense, the defendant cannot be convicted unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts alleged be proved. Pen. Code, par. 1654. The appellant, in his motion for a new trial, alleges various grounds of error.

The main question for us to consider seems to be, Were there any facts showing a conspiracy? If not, the motion of appellant to direct a verdict of acquittal should have been granted. In a charge of conspiracy the corrupt agreement is usually the gravamen of the offense. Under the statute in this case it is necessary, however, to prove the corrupt agreement, and one or more of the criminal acts charged, and, after these are both charged and proved, it becomes conspiracy. After a full examination of the evidence, we are unable to find that any such...