Westover v. State

• Decision Date: 06 October 1947
• Docket Number: 973
• Citation: 185 P.2d 315,66 Ariz. 145
• Parties: WESTOVER v. STATE
• Court: Arizona Supreme Court

185 P.2d 315

66 Ariz. 145

WESTOVER v. STATE

No. 973

Supreme Court of Arizona

October 6, 1947

Appeal from Superior Court, Navajo County; John D. Lyons, Jr. Judge.

Victor E. Westover was convicted of misappropriating public money and he appeals.

Judgment affirmed.

C. D McCauley, of Winslow, Wilson, Compton & Wilson, of Flagstaff, and John P. Clark, of Winslow, for appellant.

John L. Sullivan, Atty. Gen., John W. Rood, Chief Asst. Atty. Gen., Burr Sutter, Asst. Atty. Gen., and William P. Mahoney, of Phoenix, for appellee.

Dodd L. Greer, of Holbrook, amicus curiae.

Farley, Superior Judge. Stanford, C.J., and LaPrade, J., concurring.Note: Judge Levi S. UDALL, having disqualified himself, the Honorable Gordon FARLEY, Judge, Superior Court, Santa Cruz County, was called to sit in his stead.

OPINION

Farley, Superior Judge.

The defendant was informed against for the crime of misappropriation of public money. The information was signed and filed in the Superior Court of Navajo County by John L. Sullivan, the Attorney General, on March 30, 1945. A plea of not guilty was entered by the defendant and trial of the case was first had on June 18, 1945, which trial ended with the jury failing to agree upon a verdict. On November 26, 1945, the case was again called for trial and the jury again failed to reach a verdict. On February 25, 1946, the defendant appeared for trial for the third time and the case proceeded to the point where a jury was selected and evidence was offered by the state.

On the following day, February 26, 1946, the Honorable John D. Lyons of Pima County, to whom the cause had been assigned for trial, became ill and ordered the case continued until March 4, 1946. However, on March 2, 1946, the trial judge entered an order "that due to the continued incapacity of the presiding judge, the order continuing the trial herein to March 4, 1946, is vacated; that the trial of this matter is further continued indefinitely to a date to be fixed by future order of the court, and the jury is discharged."

On September 17, 1946, the order of March 2, 1946, was amended to include the following: "That neither the Defendant nor his counsel are present at the time of making this order but that the Court has consulted the Defendant's counsel, Mr. C. B. Wilson, and has been advised by him that it is agreeable to discharge the jury under the circumstances, provided that consent is concurred in by his co-counsel, Mr. McCauley, or, if he cannot be reached, by the Defendant; that the Court has been unable to reach Mr. McCauley, but has consulted with the Defendant who has advised him that in view of the Judge's illness it is agreeable with him to discharge the jury if Mr. Wilson has no objections. That this order is not entered in open court, but in Chambers, and that the jury is not present and that the Sheriff is authorized and directed to notify the individual jurors not to return on March 4, 1946, as previously ordered. That this order is made in this manner because the presiding Judge is ill; that he has been confined to his bed constantly from February 26, 1946 until noon of the present day; that there is no accommodation in the local hospital and no proper facilities for convalescence at the hotel where he is staying and it is imperative that he return to Tucson at once by reason of his illness, and it is therefore not possible to await the return of the jury or the attendance of counsel so that this order might be entered in open Court in their presence. Approved 9-17-46, John D. Lyons, Presiding Judge."

The case proceeded to trial on the date of the amended order before a new jury and resulted in a verdict adjudging the defendant guilty, from which verdict he has appealed.

Defendant's principal contentions are that the trial court erred: (1) in denying defendant's motion to dismiss because more than 60 days had elapsed since the last trial; (2) in denying defendant's motion to quash on the ground of previous jeopardy because of the proceedings begun on February 25, 1946, and terminating on March 2, 1946; and (3) in denying defendant's motion to quash on the ground that the information was not subscribed or presented by the County Attorney but by the Attorney General without authority of law.

The first contention urged by defendant is based upon the proposition that since the trial, which resulted in a verdict of guilty, occurred more than 60 days after the last trial such lapse of time is in violation of article 2, section 24, Arizona Constitution, and section 44-1503, A.C.A.1939. The Constitution provides in general terms that an accused has the right to a speedy trial but the code section relied upon, which was enacted pursuant to the Constitution, provides that "* * * when a person has been indicted, or informed against, for an offense, if he is not brought to trial for the offense within sixty (60) days after the indictment has been found or the information filed, the prosecution shall be dismissed * * * unless good cause to the contrary is shown, by affidavit, or unless the cause has not proceeded to trial because of the defendant's consent or by his action."

The facts disclose that the defendant was not tried within the 60-day period but it also appears that the delay was concurred in by counsel for defendant, who wrote to the Attorney General on May 10, 1946, which was 68 days after the jury had been discharged on March 2, 1946, to the effect that the defendant would stipulate to a trial setting by the presiding judge in his home county, and further indicating that the resident judge was uncertain as to when a jury would be called but had stated that a jury call would be made the latter part of July. This amounted to express acquiescence in the delay beyond the statutory period and authorized the trial judge to set the case for trial whenever the resident judge had a jury available.

The rule announced by this court in the cases of Hunter v. State, 43 Ariz. 269, 30 P.2d 499; Hernandez v. State, 40 Ariz. 200, 11 P.2d 356; and in King v. State, 23 Ariz. 49, 201 P. 99, supports the state's position that the statutory and constitutional guaranty for a speedy trial may be waived. The record clearly shows that the defendant not only acquiesced in the delay but actively encouraged as late a trial date as possible.

The next contention deals with the plea of double jeopardy. It will be noted that the trial which began on February 25th terminated on March 2, 1946, because of the illness of the presiding judge. It is settled beyond controversy that a jury having been impaneled and sworn and the proceedings commenced jeopardy attaches and, unless removed for some legal reason, the one in jeopardy cannot be again tried for the same offense. However, the courts are likewise in accord that the existence of the necessity for the discharge of the jury removes the jeopardy and a new trial may be had. This rule is recognized in section 44-1932, A.C.A.1939, as follows: "Re-trial. [66 Ariz. 149] -- In all cases where a jury is discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged from the indictment or information during the progress of the new trial, or after the cause is submitted to them, the cause may be again tried."

The authorities are extensive which hold that sickness of the trial judge is legal ground for discharging the jury and in such case jeopardy does not attach. 15 Am.Jur., Criminal Law, sec. 420; 22 C.J.S., Criminal Law, § 259; People ex rel. v. Barr, 248 N.Y. 126, 161 N.E. 444. As was said in the case of State v. Emery, 59 Vt. 84, 7 A. 129, 131: "* * * The jeopardy of the respondent by the commencement of such trial is dependent upon the presumption that the tribunal will continue legally organized, with the respondent in charge, to the end of the trial, and in the end pronounce a valid judgment for or against the respondent. In case some matter occurs in the course of the trial which conclusively rebuts this presumption, it also rebuts the conclusion or presumption of the jeopardy of the prisoner by reason of the commencement of the trial. * * *"

The amended order of September 17th made by the trial judge clearly showed the necessity for discharging the jury and constituted a judicial determination of such necessity.

The order further indicated that the jury was discharged with defendant's consent. The right of a defendant to insist that when the...