Williams, Application of

• Decision Date: 17 December 1958
• Docket Number: No. 6557,6557
• Citation: 333 P.2d 280,85 Ariz. 109
• Parties: Application of Leroy WILLIAMS, for a Writ of Habeas Corpus.
• Court: Arizona Supreme Court

Page 280

333 P.2d 280

85 Ariz. 109

Application of Leroy WILLIAMS, for a Writ of Habeas Corpus.

No. 6557.

Supreme Court of Arizona.

Dec. 17, 1958.

Rehearing Denied Jan. 14, 1959.

Alfred C. Marquez and Lawrence Ollason, Tucson, for appellant.

Robert Morrison, Atty. Gen., Raul H. Castro, County Atty., and H. E. Rogge, Jr., Chief Deputy County Atty., Tucson, for appellee.

LORNA E. LOCKWOOD, Superior Court Judge.

Appellant Leroy Williams (hereinafter referred to as Williams of defendant), appeals from denial of his application for release from custody upon a writ of habeas corpus. Williams had been charged with first degree murder by complaint filed by the county attorney of Pima County, and a preliminary hearing was held on April 26, 1957, before a magistrate, who held Williams to answer on a charge of second degree murder.

On June 25, 1957, the matter came to trial before Honorable Frank E. Thomas, presiding judge in the Superior Court of Pima County, a jury was empaneled, the state presented its case in chief, and rested. Williams' counsel moved for directed verdict, and the state moved to dismiss pursuant to A.R.S. § 13-1595, which reads as follows:

'Procedure where proof shows higher offense; effect

'A. If upon the trial of any action it appears to the court by the testimony that the facts proved constitute an offense of a higher nature than that charged, the court may direct that the jury be discharged and all proceedings on the indictment or information suspended, and may order the commitment of the defendant, and if the offense is bailable, direct in the order that the defendant may be admitted to bail in the amount fixed, which shall be specified in the order, to answer any indictment which may be returned, or any information which may be filed against him following a preliminary hearing, within thirty days after such suspension of proceedings by the court.

'B. If the defendant is committed or admitted to bail in order to hold him for a higher offense, as provided in subsection A, it is not an acquittal of the offense in which proceedings were suspended, and no plea of former jeopardy or former acquittal shall be sustained by reason thereof.'

The court denied defendant's motion, granted the state's motion, discharged the jury without defendant Williams' consent, ordered all proceedings on the information charging second degree murder suspended, ordered the defendant committed to the custody of the sheriff without bond, and instructed the county attorney to file a new complaint in the justice court charging first degree murder, on the ground that the evidence presented at the trial showed that an offense of a higher nature than that charged had been committed.

The defendant filed a notice of appeal, and the county attorney filed a motion to dismiss the appeal, which latter motion was granted on July 9, 1957. Subsequently, on July 10, 1957, the defendant applied for a writ of habeas corpus, on the grounds that he had been placed in jeopardy under the proceedings for second degree murder, and therefore could not be held on a subsequent charge of first degree murder, which would constitute double jeopardy, contrary to Article 2, Section 10, Arizona Constitution, and Amendment V, United State Contitution, and further that he was deprived of due process of law under Amendment XIV, United States Constitution.

Upon hearing of the return of the writ of habeas corpus, before Honorable J. Mercer Johnson, Judge of Superior Court of Pima County, the court denied defendant's application for a discharge, finding that the jury as empaneled was not a legal jury, and the defendant had therefore never been in jeopardy on the charge of second degree murder. This ruling is the basis for defendant's assignment of error No. V, which we shall discuss first.

The basis of the court's finding that the jury was not a legal one was that pursuant to Rule 225, Rules of Criminal Procedure, 17 A.R.S., the state and the defendant shall each be allowed ten peremptory challenges if the offense charged is punishable by death or imprisonment for life. Second degree murder is punishable by imprisonment from ten years to life. Therefore, in order to comply with Rule 225, to permit the number of peremptory challenges provided therein, there should have been thirty-two jurors drawn. At the trial, however, only twenty-four jurors were drawn, sworn and examined. Both the state and the defendant exercised peremptory challenges, and the remaining twelve jurors were sworn to try the case. Nowhere in the record does it appear that any objection was made by either the state or the defendant to this discrepancy during the trial, either before or after the jury was sworn to try the case. This matter appears to have been raised first upon hearing of the application for habeas corpus, presumably by the court hearing the same. (There being no transcript of the hearing filed in this court we accept counsels' statement on this point.)

The lower court relied upon State v. Thompson, 68 Ariz. 386, 206 P.2d 1037, in finding that no legal jury had been sworn in the trial, the court stating:

'The Arizona Supreme Court in the case of State v. Thompson, 68 Ariz. 386 , has stated that a jury which is formed in such a manner that defendant is deprived of a substantial statutory right is not a lawful jury and that to impanel a jury in violation of law, in such a way as to deprive a party of his peremptory challenge, constitutes reversible error.

'It is therefore apparent from the record in the instant case that the jury as impaneled was not a legal jury; and that therefore the defendant could not be in jeopardy at the time the court discharged the jury.'

We believe the distinguished judge misinterpreted the basis for this court's decision in the case cited. In that case there was no question as to whether a sufficient number of jurors had been called to permit the defendant to exercise the number of peremptory challenges allowed. Thirty-two jurors were called into the jury box for examination. All were examined by the court and counsel as to their qualifications to sit in the case. None was challenged for cause or excused by the court. Counsel were directed by the court to exercise the peremptory challenges granted by law, and did so. The clerk of the court, being directed by the court to call the names of the first twelve unchallenged jurors to compose the trial jury, inadvertently called the names of three of the jurors who had been peremptorily challenged by the defendant, and those jurors formed a part of the panel which was sworn to and did try the case and which rendered a verdict of guilty against the defendant. Neither the defendant nor defense counsel knew any of the jurors personally or by name, and in the shifting incident to the release of the twenty excused jurors, different seats were taken by those remaining, preventing recognition of those stricken by defense counsel. The roll was never thereafter called during the trial, and it was not until after the verdict was rendered, and counsel for the defendant was checking the record that he discovered that the three jurors whom he had challenged peremptorily had been permitted to sit on the jury.

In that case we held that the right of peremptory challenge may be waived where fair opportunity has been given to exercise it, and when the defendant has failed to so it is deemed to have been waived voluntarily. However, under the circumstances related above, it was held that defense counsel, not having a fair opportunity to discover that three jurors against whom he had exercised his peremptory challenge were actually serving upon the jury until after the verdict was returned, did not thereby voluntarily waive his right to have the case tried by jurors against whom he had not exercised a peremptory challenge.

The right to peremptory challenge is a right which may not be lost or impaired, but, as with other rights, it may be waived voluntarily; further, it is a right of rejection, not of selection. State v. Thompson, supra, and cases cited. There is nothing in the record in this case which indicates that defendant was deceived, by inadvertence or otherwise, into a position where jurors who had actually been rejected were serving on the trial jury. Nor does it appear that defendant objected to the fact that less than the number of jurors to which he and the state were entitled in order to exercise the number of peremptory challenges permitted, were called into the box. On the contrary, by failure to raise this question, the conduct of both defendant and the state warrants an inference that such right was voluntarily waived.

We hold, therefore, that both the state and defendant voluntarily waived their rights to a panel of thirty-two jurors, when they accepted without objection the panel of twenty-four, exercised peremptory challenges, and permitted the trial to proceed with the twelve jurors who remained unchallenged. The jury was, therefore, a legal jury empowered under the law to try the case.

We come, then, to defendant's assignment of error No. II, which is that A.R.S. § 13-1595 is unconstitutional and contrary to Article 2, Section 10, of the Arizona State Constitution. This section reads as quoted above.

Defendant urges in this regard that the proceedings had at the trial on the second degree murder charge placed him in jeopardy, and that he could not be thereafter charged with first degree murder since it was the identical offense for which he had already been in jeopardy. The record shows as follows:

The jury was drawn and sworn to try the case, some evidence was adduced by the state, and thereafter, without defendant's consent, on motion of the county attorney, the court...