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Brough v. State

Supreme Court of Arizona

April 8, 1940

DALE OREN BROUGH, Appellant,
v.
THE STATE OF ARIZONA, Respondent

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Miss S. V. Ross, for Appellant.

Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Respondent, and Mr. Charles L. Ewing, County Attorney of Yavapai County, Associate Counsel.

OPINION

[55 Ariz. 277] ROSS, C.J.

From a conviction of grand larceny and an indeterminate sentence to the state prison for a term of not less than twenty-five years to life, Dale Oren Brough has appealed.

The one question for decision is whether the defendant was entitled to ten peremptory challenges or only seven in the impanelment of the jury. The trial court limited defendant to seven and he insists this was prejudicial error.

The information charges defendant with the crime of grand larceny of an automobile, which, under section 4757, Revised Code of 1928, is punishable by imprisonment in the state prison for not less than one nor more than ten years. The information also, as the law authorizes, sets forth that defendant had suffered two previous convictions convictions in the courts of Arizona, one for burglary and one for attempted burglary, both punishable in the state prison, such punishment being, if the burglary was committed in the daytime not more than five years and if in the nighttime not less than one nor more than fifteen years. Sec. 4746, Id.

On his arraignment, defendant admitted the previous convictions and pleaded not guilty to the offense charged. The verdict was that he was guilty of grand larceny, but the jury made no findings as to previous convictions, the statute not requiring it when the defendant admits previous conviction. Sec. 5089, Id.

When a party has been informed against for a crime and the information alleges previous convictions, the punishment for the new crime is fixed by section 4898, Id., the material part of which reads:

"Defendant previously convicted, increased punishment. Every person who, having been convicted of [55 Ariz. 278] petit larceny or any offense punishable by imprisonment in the state prison, commits any crime after such conviction, is punishable therefor, as follows: If the offense of which such person is subsequently convicted is such that, upon a first conviction, an offender would be punishable by imprisonment in the state prison for any term exceeding five years, such person is punishable by imprisonment in the state prison not less than ten years;... The punishments herein prescribed must be substituted for those prescribed for a first offense if the previous conviction is charged in the indictment or information and found by the jury."

It seems to be agreed that the sentence imposed is in accordance with section 5109, Id., which provides for indeterminate sentences.

We now revert to the question we are to decide. We look to the provisions of the law that fix the number of peremptory challenges a defendant charged with the commission of a crime is entitled to exercise. Section 5039, Id., reads:

"Peremptory challenge; number. A peremptory challenge may be taken by ...


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