Certified from Superior Court, Pima County; W. C. Truman, Judge.
Prosecution by the State against Joseph Ferraro for bribing a witness in a criminal prosecution, wherein the defendant was convicted, and after defendant's motions for a new trial and in arrest of judgment were denied, but before sentence, trial court certified questions of law.
Questions answered in the affirmative.
No appearances for the parties.
Udall, Justice. Stanford, C. J., and LaPrade, J., concur.
[67 Ariz. 398] Ida Watson signed a criminal complaint before a magistrate of Pima County charging one Pallas Combs with statutory rape upon her seventeen year old daughter. Before the preliminary hearing in the Combs case was held, defendant (in the present case) Joseph Ferraro went to the home of Ida Watson and offered her a bribe of one hundred dollars to influence her testimony in the Combs case. Later when he returned and repeated the offer, which was not accepted, a deputy sheriff stationed in an adjoining room having overheard the latter conversation promptly arrested Ferraro upon a charge of bribery. As shortly thereafter defendant Combs waived his preliminary hearing in the rape case and entered a plea of guilty to the information filed in the superior court the complaining witness, Ida Watson, was never called to testify against him. Ferraro was regularly brought to trial and a jury convicted him of a felony, to wit: "bribing a witness". His motions for a new trial and in arrest of judgment were denied, but before sentence, the trial court stayed further proceedings and with the written consent of James M. Howsare, deputy county attorney, representing the State and Martin S. Rogers, attorney for defendant, has certified to this court, under the provisions of section 44-2401, A.C.A.1939, three questions of law which it deems "so important and doubtful as to require the decision of the appellate court".
[67 Ariz. 399] In spite of the admonition to the bar contained in the case of State v. Blazina, 58 Ariz. 346, 120 P.2d 395, neither the attorney for the defendant nor the county attorney have filed a brief or called to our attention any authorities that might shed light upon the questions to be decided. Furthermore, the questions are so broadly drawn that to fully answer the same would involve a dissertation on abstract matters far beyond the scope of the legal problems presented in the instant case. Within proper limits, under these handicaps, we shall endeavor to discharge our statutory duty of rendering an advisory opinion on the questions properly before us.
Inasmuch as all of the questions are concerned with the meaning of a single statute dealing with bribery, we set out the pertinent provisions in extenso.
"Bribing and receiving bribe by witness. -- Every person who (1) gives, or offers or promises to give, to any witness or person about to be called as a witness, any bribe, upon any understanding, or agreement that the testimony of such witness shall be thereby influenced, or (2) who attempts by any other means fraudulently to induce any person to give false or withhold true testimony, * * * is guilty of a felony." Sec. 43-3906, A.C.A.1939. (Numbering supplied.)
This section is an exact counterpart of Sec. 137 of the California Penal Code, and originally was adopted from the criminal law of that jurisdiction. It has been a part of our penal code since 1887, and except for consolidation with another section in the 1928 Code, Sec. 4555, the phraseology has remained unchanged.
It is apparent that the hereinbefore quoted portion of Sec. 43-3906, supra, in reality sets forth two separate means of committing the crime of bribery, i. e.: under (1) an understanding or agreement must be had, whereas under (2) the offense prescribed is accomplished "* * * by any other means fraudulently * * *" inducing a witness to give false or withhold true testimony, and under this charge there need be no meeting of the minds. People v. McAllister, 99 Cal.App. 37, 277 P. 1082. It is somewhat difficult to determine from a careful reading of the information and the question certified here under which subdivision the defendant was charged, but we shall hereafter assume that it was under the former (1).
The first question certified to this court is: When does one become a witness subject to bribery, as defined by Section 43-3906, A.C.A.1939, and under the charge in the information? We find ourselves in agreement with ...