STATE ex rel. SULLIVAN, Attorney General,
Original certiorari proceeding by the State of Arizona, on the relation of John L. Sullivan, Attorney General of the State of Arizona, against W. E. Patterson, presiding as judge of the Superior Court of Navajo County, Ariz., to review the action of the respondent in denying the state a change of venue of the State's information charging one Victor E. Westover, a public officer, with misappropriation of public funds.
Motion to quash writ of certiorari granted and writ previously issued annulled.
John L. Sullivan, Atty. Gen., and Harry O. Juliani and John W. Rood, Asst.Attys. Gen., for petitioner.
C. B. Wilson, of Flagstaff, and C. D. McCauley, of Winslow, for respondent.
La Prade, Judge. Stanford, C. J., and Morgan, J., concur.
La Prade, Judge.
[64 Ariz. 42] This is an original proceeding in certiorari in this court to review the action of respondent in denying to the state a change of venue of the state's information charging one Victor E. Westover, a public officer, with misappropriation of public funds. Westover was put to trial before a jury. The trial resulted in a hung jury. A mistrial was declared and defendant was ordered put to trial a second time. Prior to the second trial, the attorney general filed a motion for a change of venue upon the stated ground and for the reason that a fair and impartial trial could not be had in Navajo County. The motion was predicated on Rule 253, Rules Cr.Proc. (Section 44-1206, A.C.A.1939) and Rule 254, Rules Cr.Proc. (Section 44-1207, Id.). These two rules read as follows:
"44-1206. Removal of cause. -- On a prosecution by indictment or information the state or the defendant may apply for removal of the cause on the ground that a fair and impartial trial can not be had for any reason other than the interest or prejudice of the trial judge."
"44-1207. Application for removal of cause -- How made -- The application for removal of the cause shall be made in writing and shall be presented in open court and then filed. It shall state the ground on which it is based and shall also state the facts constituting the ground. When made by the state it shall be verified by affidavit of the county attorney; when made by the defendant it shall be verified by his affidavit."
The grounds set forth in the verified motion were:
1. That the defendant is the present clerk of the superior court and as such clerk in actual and legal custody of the files and records in the case; that he has aided and will aid in the selection of the jury panel; that he is charged with the swearing of the jury panel and the trial jurors and the witnesses; that he is charged with making the minute entries, entering the judgment, and, in the event of an appeal, making and transmitting the record on appeal. The motion further set up that the defendant, by virtue of his office, was in close contact with all the jurors; that he had become very friendly with them; [64 Ariz. 43] and that he was charged with paying them for their services.
2. That prior to being elected clerk of the superior court, defendant had served two terms as county treasurer.
3. That his father now is and has been for some time a member of the state legislature, and that "because of the political connections aforementioned, there has been created a widespread sentiment in Navajo County against the prosecution in this case which precludes the existence in Navajo County of the elements for a fair and impartial jury to try this cause."
4. That the county attorney of Navajo County is hostile to the prosecution and has aided and abetted in creating public sentiment
against the prosecution which will militate against the selection of a fair and impartial jury.
5. That there exists in Navajo County a widespread sentiment that it will be impossible to convict defendant no matter what the evidence against him may be, and that many and sundry persons have expressed opinions to the effect that defendant could not be convicted under any circumstances; and that the defendant has stated that the prosecution would not be able to select a jury panel in Navajo County to convict him.
6. That the chairman of the board of supervisors of Navajo County, Ben R. Hunt, has taken an active interest in behalf of defendant and has called on the governor and the attorney general on at least two occasions in an effort to persuade these officials to discontinue the prosecution and dismiss the case; that the said Ben R. Hunt, as chairman of the board of supervisors of Navajo County, is charged with the duty, among other things, of supervising the actions of county officials, with particular respect to shortages of public moneys such as is charged in this case, but nevertheless said Ben R. Hunt has aided in the defense of this case and has created a widespread sentiment throughout the County of Navajo against the prosecution.
7. That all of the foregoing facts and circumstances, and the many other intangible factors resulting from the aforementioned facts, make it impossible for the State of Arizona to receive a fair and impartial trial from a jury ...