APPEAL from a judgment of the Superior Court of the County of Maricopa. J. W. Faulkner, Judge. Judgment reversed and cause remanded with instructions.
Mr. Wm. J. Fellows, for Appellant.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Respondent.
Harold Keys, hereinafter called defendant, was convicted of the crime of robbery and [55 Ariz. 25] sentenced to serve not less than twenty nor more than twenty-five years in the state prison, and has appealed to this court.
There is but one assignment of error, which is that the county attorney was guilty of unusual and improper conduct during the course of the trial. A consideration of this assignment requires a statement and discussion of the evidence and the manner in which the trial was conducted.
On or about February 20, 1939, a messenger of the Arizona Grocery Company, who had been sent to a local bank with certain receipts of the company, was held up and robbed. After an investigation, Mr. and Mrs. Clarence Neeley, J. Baldwin, Mickey Warthon and Merla Hartley were arrested for complicity in the robbery. Warthon, Baldwin and Neeley entered pleas of guilty and were sentenced to serve terms in the state prison at Florence. About a month later, the defendant herein, Harold Keys, was arrested in Calexico, California. He waived extradition and was returned to Phoenix, where he was tried before a jury and convicted.
At the trial of the case, after the jury was empaneled, counsel for defendant asked that the rule be invoked, and the witnesses were duly sworn and admonished that they must refrain from discussing the case with anyone except the attorney who had called them as a witness. Among these witnesses thus placed under the rule was Vernon LaMoore, a deputy sheriff.
The state them offered the following evidence tending to connect defendant with the robbery: One witness, Edward D. Reynolds, testified in substance that he saw defendant immediately after the crime occurred driving the car occupied by the persons who committed the robbery. Mrs. Clarence Neeley testified that defendant was with her husband and the other participants in the robbery during the morning on which [55 Ariz. 26] it occurred, under circumstances which would warrant the reasonable deduction that he was at least an accessory before the fact, although she did not actually witness the robbery. Richard F. Harless, the county attorney, and E. W. Roach, a deputy sheriff, testified that they were in the automobile in which the defendant was returned from California and that he then made various statements which, although they did not amount to a confession of the crime, were of such a nature that it might reasonably be deduced therefrom that he had participated in some manner in it. There was other minor testimony but this was the evidence upon which the state necessarily relied for a conviction, with the exception of that of one other witness to whom we shall refer later in the opinion.
In his defense, defendant denied any participation in the crime, and also set up an alibi in regard to his alleged presence at the scene of the robbery. He was corroborated by Pearl Van Meter, who testified to a state of facts which, if true, would have made it impossible for him to have been present at the actual robbery, and by J. Baldwin and Clarence Neeley, two of the men who had pleaded guilty, who denied positively and categorically that defendant had anything to do with the offense.
It will be seen that upon this state of the evidence a jury could reasonably have found defendant either guilty or not guilty, according to which group of witnesses the jurors believed.
In addition to these witnesses, Merla Hartley was called by, and testified on behalf of, the state. She admitted her own participation in the crime and a full knowledge thereof, but stated definitely and positively that defendant had nothing to do with it, and that there was a third man who went by the same name as defendant who was implicated. The state made no claim of surprise at her testimony and did [55 Ariz. 27] not contend that she was a hostile witness, but permitted her to leave the stand on the first day of the trial with her testimony unchallenged. On the second day, she was recalled by the state, and this time repudiated completely her testimony of the previous day, and stated that the defendant had participated both in the planning and the execution of the crime. Her testimony on this second day was admitted over the strenuous objection of counsel for the defense who, when she first stated that she wished to change her testimony, asked permission to examine her on her voir dire, which request was refused by the court.
On cross-examination of the witness Hartley and of another witness for the state, Vernon LaMoore, a most surprising situation developed. It appeared that the witness Hartley had for a considerable period of time before the robbery been the paramour of Mickey Warthon, one of the men who had previously pleaded guilty. After his arrest he was not permitted to visit with or even to see her, although she protested and endeavored in every manner to be with him at least for a time. After her testimony the first day of the trial, she was informed by the witness LaMoore that Warthon was in the county jail, and she immediately repeated her request to visit him. She was informed by LaMoore that he knew she had lied in her previous testimony and that she ought to change it. She asked if she would be permitted to see Warthon and was tole by LaMoore that it might be arranged. There is no explicit testimony that the arrangement was conditional upon her repudiation of her previous testimony, but the only reasonable inference from all the evidence was that such was the understanding. She was permitted to remain in the jail all of that night and to visit Warthon for a period and ...