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Ex Parte Decker

Supreme Court of Arizona

December 10, 1946

Ex parte DECKER.
v.
BOIES, Sheriff DECKER

Appeal from Superior Court, Maricopa County; Dudley W. Windes, Judge.

Proceeding in the matter of the application of T. G. Decker for a writ of habeas corpus opposed by L. C. Boies, sheriff of Maricopa County. From an order quashing the writ, petitioner appeals.

Order set aside and case remanded with direction to discharge applicant.

Snell, Strouss & Wilmer, of Phoenix, for appellant.

John L. Sullivan,, Atty. Gen., and Maurrice Barth, Asst. Atty. Gen., for appellee.

Morgan, Judge. R. C. Stanford, C. J., and Patterson, Superior Judge, concur. Justice Arthur T. LaPrade being disqualified, the Honorable W. E. Patterson, Superior Court Judge of Yavapai County, was called to sit in his stead.

OPINION

Morgan, Judge.

Page 205

[65 Ariz. 123] Appellant was charged in the justice court of Maricopa county with the crime of conspiracy to violate the Alien Land Law, Art. 2, Chap. 71, § 71-201 et seq., A.C.A. 1939. The specific charge made in the complaint was that appellant had in 1941 given a lease to Iiko Kishuyama, an American citizen, the minor daughter of Kajuiro Kishuyama, a citizen and subject of Japan, for the purpose of circumventing the provisions of sec. 71-201, A.C.A. 1939, the father being the real lessee who went into [65 Ariz. 124] possession of the property and continued in possession under the lease so made to his daughter.

Other than extrajudicial statements made by the Kishuyamas about two years after the execution of the lease, the only evidence offered against appellant at the preliminary hearing was to the following effect. Appellant and his wife were the grantees of the property. The Kishuyama family during 1941 grew some flowers and cultivated a small patch of vegetables on the land, a tract of five acres. In July, 1943 the Kishuyama family were living in a house on the premises. During the year 1943 appellant advised investigators that he had entered into a lease with Iiko Kishuyama, but had canceled it upon the advice of his attorneys after he had discovered she was not of legal age. He then gave a lease to Yoneko Kishuyama, an American citizen, who was somewhere in Utah. The second lease was given about September, 1941 for a one-year period. There was no renewal of this lease and appellant advised the investigators

Page 206

that the Kishuyamas were on the property illegally.

None of the defendants testified. Appellant was bound over for trial. A petition for habeas corpus was filed and writ issued upon the ground that no competent evidence had been adduced to disclose a conspiracy or an offense under the Act. Appellant was admitted to bail. Upon the return of the writ a hearing thereon was had and the superior court quashed the writ of habeas corpus. From the order so entered, this appeal was taken.

By proper assignments appellant raises the following issues. There was no proof showing or tending to show that the Kishuyamas were aliens; there was no evidence of criminal knowledge or intent on the part of the appellant in entering into the lease arrangement, or which proved or tended to prove that appellant intended to or actually did conspire with those charged as parties to the conspiracy; section 71-210 is unconstitutional and void as a denial of due process, under the Fourteenth Amendment to the Const. of the United States, and sec. 4 of Art. 2 of the Const. of ...


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