APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Appellee.
Mr. V. L. Hash, for Appellant.
[59 Ariz. 412] LOCKWOOD, C.J.
G. W. Pierce, defendant, was informed against by the county attorney for the crime of "contributing to the delinquency of a minor." Section 43-1008, Arizona Code 1939. There are six separate counts in the information, each count setting up different specific acts of a sexual nature committed upon different persons, and each one of which acts taken alone would constitute the offence charged. The case was tried before a jury, and at the end of the evidence defendant moved the court to instruct the jury to return verdicts of not guilty upon each count. The court granted the motion as to counts one, two and four, and denied it as to the other three, submitting the case as to counts three, five and six to the jury under instructions which are not questioned. A verdict of guilty was returned on each of these three counts, and after the usual preliminaries, this appeal was taken.
There are four assignments of error, which we shall consider in their order. The first is that the information was void in that it charged distinct and separate offenses committed at different times and places and against different persons. Section 44-725A, Arizona Code 1939, reads as follows:
"Charging two or more offenses or same offense in different counts; Order to consolidate; Election by prosecution; Separate trials; Effect of acquittal one one or more counts. An indictment, information, or [59 Ariz. 413] complaint may charge two or more different offenses connected together in their commission, or different statements of the
same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more indictments or informations are filed in such cases the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or sounts set forth in the indictment or information, but the defendant may be convicted of any number of the offenses charged, and each offense upon which the defendant is convicted must be stated in the verdict; provided, that the court in the interest of justice and for good cause shown, may, in its discretion, order that the different offenses or counts set forth in the indictment or information be tried separately, or divided into two or more groups and each of said groups tried separately. A verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count." (Italics ours.)
The information complies fully with the rule set forth in this section, but defendant contends, in substance, that the section itself is void, in that it denies him a substantive right given him by the Constitution and laws of the state of Arizona.
The legislature of the state of Arizona, by chapter 8, of the session laws of 1939, authorized this court to adopt rules of both civil and criminal procedure governing the practice in all courts, but expressly provided, "Such rules shall not abridge, enlarge or modify the substantive rights of any litigant." If, therefore, section 44-725A, supra, is purely procedural in its nature, its adoption was authorized by chapter 8, supra. If, on the other hand, its affects a substantive right of the defendant it is without the provisions of the statute and not within the inherent power of the court to make rules of procedure.
We have very recently had before us the question of the validity of chapter 8, supra, and in the case [59 Ariz. 414] of Burney v. Lee, ante, p. 360, 129 P.2d 308, we have held that as a result of such statute the legislature has withdrawn from the field of court procedure, and that unquestionably since said withdrawal the court has the indisputable inherent power of adopting procedural rules as it thinks proper for the conduct of judicial business, both criminal and civil.
Counsel for defendant has not suggested any manner wherein the rule authorizing the joining of two or more different offenses of the same class of crime under separate counts violates any substantive right of defendant, and we can think of none. The method of trial of a defendant in a criminal case, as in a civil, is procedural and not substantive, and in the absence of a specific constitutional provision affecting the matter, may be regulated by rules of court. The first assignment of error is without merit. Burney v. Lee, supra.
The next assignment is that the state was permitted to have the witness S testify as to a different offense of the same class committed at a different place and time from any of those charged in the information. The court did not permit this, but stated that it was admitted solely on the ground that it was an attempt to show offenses of a similar character, and instructed the jury "you will consider this... in so far as it ...