Ubillos v. Territory of Arizona

• Decision Date: 30 March 1905
• Docket Number: Criminal 182
• Citation: 80 P. 363,9 Ariz. 171
• Parties: MARTIN UBILLOS, indicted as Francisco Garcia, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

80 P. 363

9 Ariz. 171

MARTIN UBILLOS, indicted as Francisco Garcia, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 182

Supreme Court of Arizona

March 30, 1905

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Yuma. George R. Davis Judge. Affirmed.

The facts are stated in the opinion.

Frank Baxter and Henry Wupperman, for Appellant.

No appearance for Respondent.

OPINION

DOAN, J.

-- The appellant was indicted, jointly with one Samuel Rodriguez for the crime of murder. The defendants were tried jointly to a jury, and the appellant was convicted on April 7, 1904, of murder in the first degree, and the death penalty imposed and his co-defendant, Rodriguez, acquitted under the instructions of the court. From the verdict and judgment of conviction, and the denial of a motion for a new trial, an appeal was taken.

There is no assignment of the errors relied upon presented in the counsel's brief, as required by rule 4 of this court; but this being a capital case we will look into the record, and endeavor to determine therefrom the points on which the appellant relies.

The appellant first urges in his brief that the panel for the trial jury was unlawfully drawn. At the beginning of the trial the attorneys for the appellant challenged the array on the ground that the list from which they were selected was not such a list as was contemplated by the statutes of Arizona. The court disallowed the challenge. Paragraph 2787 of the Revised Statutes of 1901 provides that "The board of supervisors of the several counties in this territory, at their first regular meeting after the first Monday in January of each year, or thereafter at any special meeting called for that purpose, shall cause to be made a list of all persons within their respective counties, qualified and liable to serve as jurors and shall from time to time revise the same so as to keep such list as complete as practicable, and such boards shall cause certified copies of such original, and revised lists, to be filed in the office of the clerks of the district courts in their several counties." There was filed as an exhibit of the appellant a list of several hundred names, duly certified by the clerk of the board of supervisors of the county to be "a full, true and correct copy of the list of all persons within said county qualified and liable to serve as jurors, as appears from the original list thereof caused to be made by the board of supervisors of said county at its meeting on January 12th, A.D. 1904. Dated this 15th day of January, A.D. 1904." This was further certified by the clerk of the district court of the first judicial district of the territory of Arizona, in and for the county of Yuma, to be a "list of persons qualified to serve as jurors, 1904, certified copy from board of supervisors filed this 15th day of January, A.D. 1904, at 30 minutes after 9 o'clock A.M." This list is criticized by counsel for appellant, as being the grand register of the county, with alterations therein, but there is nothing in the record to attack or impeach the certificate of the clerk of the board of supervisors, or the certificate of the clerk of the district court, that the list is, as it is shown by the certificates to be, "a true and correct copy of the list of all persons within the said county qualified and liable to serve as jurors, as appears from the original list thereof caused to be made by the board of supervisors of said county at its meeting on January 12th, A.D. 1904." The general allegation in appellant's brief that such list has not been revised from time to time is entitled to scant consideration, when the record shows the list was prepared by the board of supervisors on January 12, 1904, and the certified copy thereof filed in the office of the clerk of the district court on the fifteenth day of January, 1904, and the term of court wherein this case was tried convened April 4, 1904. The jury is required to be drawn not less than ten days prior thereto, so that the jury must have been drawn less than ninety days after such list was made, and therefore before there would be a necessity for any revision. The general allegation in the brief that "many on the list were wholly disqualified by reason of not understanding the English language" would have been susceptible of proof, if true, but no evidence to that effect appears in the record to disprove the certificate of the clerk of the board of supervisors that "the persons on the list were qualified and liable to serve as jurors." The challenge to the panel on the grounds given as presented in the record was properly disallowed.

Neither the jury list of one hundred, as provided by the requirements of paragraphs 2790 to 2794, inclusive, of our statutes, nor the order for drawing the general venire nor the orders for any special venires for the term that may have been made by the court before this case came on for trial, are presented in the record, although there does appear one order for a special venire of ten during the impanelment of the jury...