Territory of Arizona v. Dooley

Decision Date14 March 1889
Docket NumberCriminal 47
Citation78 P. 138,3 Ariz. 60
PartiesTERRITORY OF ARIZONA, Plaintiff and Respondent, v. EDWARD M. DOOLEY, Defendant and Appellant
CourtArizona Supreme Court

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. W. H. Barnes, Judge.


Hood and Webb, for Appellant.

Clark Churchill, Attorney-General, and H. R. Jeffords, for Respondent.



Defendant-appellant was indicted and tried in the county of Pima for an assault with intent to murder. The first assignment of error was that the court refused to grant a continuance. The affidavits do not state that he expected at any time to procure the testimony of the witnesses. With such an uncertainty, a criminal case ought not to be continued. A continuance in a criminal action rests in the sound discretion of the court, and will not be reversed except in cases manifestly arbitrary and unjust. Brown v. State, 85 Tenn. 439, 2 S.W. 895.

The second assignment of error is the refusal of the trial judge to exclude the witnesses. This is solely a matter of discretion.

The third assignment is refusal of the court to allow defendant to testify to a conversation between prosecuting witness and himself three hours before the alleged assault. We do not think such conversation admissible. A previous fight would not have been allowed to be proven by the defense.

Exceptions were taken that the jury in their deliberations arrived at their verdict by some of them being persuaded that the punishment would be light. It is well understood that juries cannot thus impeach their own verdict.

Another exception is that the jury was not all of the time in custody of the officer sworn in court. Another officer was in charge of the jury part of the time, who, before taking charge, was sworn by the clerk. There is no provision of the criminal statutes requiring an officer to be sworn; it is usually done. In this case, deputy sheriffs had charge of the jury. Exception is taken because the court did not charge the jury that they could render a verdict for an assault with deadly weapon or any less offense than that charged. Had the court refused to so charge, there would have been error; but no such instruction was asked for by the defendant, and he cannot now take advantage of there being no instruction on that point.

The judgment is affirmed.

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11 cases
  • State v. Thomas
    • United States
    • Arizona Supreme Court
    • October 18, 1954
    ...which was devised for the discovery of the truth and the detection and exposure of falsehood, has prevailed. See, Territory of Arizona v. Dooley, 3 Ariz. 60, 78 P. 138, and Riley v. State of Arizona, 50 Ariz. 442, 73 P.2d 96. In the Dooley case the pronouncement, which has since been consis......
  • Spring v. Bradford
    • United States
    • Arizona Supreme Court
    • October 23, 2017
    ...common-law antecedent by making the sequestration of witnesses mandatory when requested by one of the parties. See Territory v. Dooley , 3 Ariz. 60, 61, 78 P. 138 (1889) (describing exclusion as "solely a matter of discretion"). Of the five exceptions to Rule 615's general rule of exclusion......
  • State v. Sowards
    • United States
    • Arizona Supreme Court
    • September 24, 1965
    ...witnesses during a trial, but this common law practice was followed in our courts before Arizona became a state. Territory of Arizona v. Dooley, 3 Ariz. 60, 78 P. 138 (1889). The purpose of excluding witnesses from the trial is to encourage the discovery of truth, and detection and exposure......
  • Eytinge v. Territory of Arizona
    • United States
    • Arizona Supreme Court
    • March 20, 1909
    ...the discretion has been abused. Elias v. Territory, 9 Ariz. 1, 76 P. 605; Halderman v. Territory, 7 Ariz. 126, 60 P. 876; Territory v. Dooley, 3 Ariz. 60, 78 P. 138; Territory v. Barth, 2 Ariz. 322, 15 P. 673. cannot with propriety be held to be an abuse of discretion to deny a continuance ......
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