APPEAL from a judgment of the Superior Court of the County of Maricopa. J. W. Faulkner, Judge. On motion for rehearing. Motion denied.
Mr. Wm. J. Fellows, for Appellant.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Respondent.
[EDITOR'S NOTE: No Majority Opinion Appears at this Cite.]
DISSENT BY: McALISTER
McALISTER, J., Dissenting. Upon appeal to this court the conviction of Harold Keys for robbery was reversed in a unanimous opinion and the case remanded for a new trial. Keys v. State, ante, p. 24, 97 P.2d 736. The state moved for a rehearing and it was denied by a majority of the court on February 5, 1940, without comment. I dissented from this disposition of the motion and stated that my reasons would be filed later.
The conviction was reversed because of the misconduct the court held deputy sheriff, Vernon LaMore, and deputy county attorney, William T. Choisser, who prosecuted the case, were guilty of during the trial. The record discloses that at the beginning of the trial all of the witnesses, including LaMore, were sworn and placed under the rule and appellant contends, and the court so holds, that in disregard of the admonition to refrain from discussing the case with anyone LaMore talked to Meral Hartley about the testimony she gave the first day of the trial and induced her to change [55 Ariz. 128] it the following day by permitting or helping her to be alone in jail with her boy friend, Mickey Warthon, at least a part or all of the night of April 19, 1939. The charge made against Choisser and upheld by the court is that he, knowing LaMore was under the rule, permitted or tacitly approved his violation of it in the manner stated.
Four men and two women committed the robbery and five of these were apprehended within a few days thereafter, but Keys was not found until a month later. The three men pleaded guilty and were given heavy sentences in the state prison, but Keys pleaded not guilty, and his associates in the crime, having been brought from the prison as witnesses for him, were held in jail while in Phoenix. Late in the afternoon of the first day of the trial the state placed one of the two women, Merla Hartley, on the stand and, instead of testifying as the prosecution expected, she denied that the Keys on trial had anything to do with the robbery but testified that it was another man by that name that took part in it. The prosecution permitted her to leave the stand without expressing surprise or challenging her testimony. The next day she was called again and testified that appellant Keys was one of the participants in the robbery and that her testimony to the contrary the day before was false. Upon cross-examination appellant's counsel endeavored to show that she had been induced to change her testimony by asking questions intended to establish the fact that she agreed to do this if she were permitted to spend the night or part of it alone in jail with her boy friend, Mickey Warthon. After stating she did not know that the visiting hours in jail on Wedensdays were from nine to four, she gave the following testimony:
"Q. You were there last night, weren't you? A. I was in the county jail all last night.
[55 Ariz. 129] "Q. And you saw and was with Mickey? A. Yes.
"Q. Who permitted you and Mickey to be together last night? A. I don't know who permitted me to see him."
She then stated that she asked several persons, including LaMore, deputy sheriff Roach and the jail matron, if she could see Mickey, and in reply to the question, "And
the price you paid was to come in here and change your testimony, wasn't it?" she answered "No, ...