Appeal from Superior Court, Navajo County; John D. Lyons, Jr., Judge.
Victor E. Westover was convicted of misappropriating public money, and he appeals.
C. D. McCauley, of Winslow, Wilson, Compton & Wilson, of Flagstaff, and John P. Clark, of Winslow, for appellant.
John L. Sullivan, Atty. Gen., John W. Rood, Chief Asst. Atty. Gen., Burr Sutter, Asst. Atty. Gen., and William P. Mahoney, of Phoenix, for appellee.
Dodd L. Greer, of Holbrook, amicus curiae.
Farley, Superior Judge. Stanford, C.J., and LaPrade, J., concurring.Note: Judge Levi S. UDALL, having disqualified himself, the Honorable Gordon FARLEY, Judge, Superior Court, Santa Cruz County, was called to sit in his stead.
Farley, Superior Judge.
[66 Ariz. 146] The defendant was informed against for the crime of misappropriation of public money. The information was signed and filed in the Superior Court of Navajo County by John L. Sullivan, the Attorney General, on March 30, 1945. A plea of not guilty was entered by the defendant and trial of the case was first had on June 18, [66 Ariz. 147] 1945, which trial ended with the jury failing to agree upon a verdict. On November 26, 1945, the case was again called for trial and the jury again failed to reach a verdict. On February 25, 1946, the defendant appeared for trial for the third time and the case proceeded to the point where a jury was selected and evidence was offered by the state.
On the following day, February 26, 1946, the Honorable John D. Lyons of Pima County, to whom the cause had been assigned for trial, became ill and ordered the case continued until March 4, 1946. However, on March 2, 1946, the trial judge entered an order "that due to the continued incapacity of the presiding judge, the order continuing the trial herein to March 4, 1946, is vacated; that the trial of this matter is further continued indefinitely to a date to be fixed by future order of the court, and the jury is discharged."
On September 17, 1946, the order of March 2, 1946, was amended to include the following: "That neither the Defendant nor his counsel are present at the time of making this order but that the Court has consulted the Defendant's counsel, Mr. C. B. Wilson, and has been advised by him that it is agreeable to discharge the jury under the circumstances, provided that consent is concurred in by his co-counsel, Mr. McCauley, or, if he cannot be reached, by the Defendant; that the Court has been unable to reach Mr. McCauley, but has consulted with the Defendant who has advised him that in view of the Judge's illness it is agreeable with him to discharge the jury if Mr. Wilson has no objections. That this order is not entered in open court, but in Chambers, and that the jury is not present and that the Sheriff is authorized and directed to notify the individual jurors not to return on March 4, 1946, as previously ordered. That this order is made in this manner because the presiding Judge is ill; that he has been confined to his bed constantly from February 26, 1946 until noon of the present day; that there is no accommodation in the local hospital and no proper facilities for convalescence at the hotel where he is staying and it is imperative that he return to Tucson at once by reason of his illness, and it is therefore not possible to await the return of the jury or the attendance of counsel so that this order might be entered in open Court in their presence. Approved 9-17-46, John D. Lyons, Presiding Judge."
The case proceeded to trial on the date of the amended order before a new jury and resulted in a verdict adjudging the defendant guilty, from which verdict he has appealed.
Defendant's principal contentions are that the trial court erred: (1) in denying defendant's motion to dismiss because more than 60 days had elapsed since the last trial; (2) in denying defendant's motion to quash on the ground of previous jeopardy because of the proceedings begun on February 25, 1946, and terminating on [66 Ariz. 148] March 2, 1946; and (3) in denying defendant's motion to quash on the ground that the ...