Appeal from Superior Court, Maricopa County; J. W. Faulkner, Judge.
Tom J. Thompson was convicted of assault with a deadly weapon, and he appeals.
Reversed and cause remanded for a new trial.
Milburn N. Cooper, of Phoenix, for appellant.
Fred O. Wilson, Atty. Gen., Maurice Barth and Charles Rogers, Asst. Attys. Gen., Fred J. Hyder, Deputy Co. Atty., of Phoenix, for appellee.
Udall, Justice. La Prade, C. J., and Stanford, Phelps, and De Concini, JJ., concur.
[68 Ariz. 388] Tom J. Thompson, defendant (appellant), was charged with the crime of assault with intent to commit murder, a felony. He was duly arraigned, entering a plea of not guilty, and later was tried in the superior court. The jury convicted him of assault with a deadly weapon, which is an included offense, and he was sentenced to one to two years in the state penitentiary. Defendant filed a motion for new trial and motion in arrest of judgment both of which were denied before judgment was pronounced. This is an appeal from the final judgment of conviction. Section 44-2506(a), A.C.A.1939; Imperial v. State, 65 Ariz. 150, 176 P.2d 688.
While defendant has advanced some twenty-one assignments of error and numerous propositions of law, we believe that the appeal can be effectually disposed of by considering only one assignment (the fourteenth), which reads:
"The Court erred in denying and not granting defendant's motion for new trial upon the ground that the verdict was returned by an unlawful jury, by a jury including three persons, namely: George Waldron, Evaline May Lofing, and Harry W. Bowers, who had been and were excused by the defendant in the lawful exercise of his peremptory challenges, and therefore the defendant did not receive a trial by lawful and proper jury, as guaranteed to him by the statutes and laws of the land and by the constitutions of the State of Arizona and of the United States."
The following are the facts pertaining to this assignment: In impaneling the jury the trial court properly directed the clerk [68 Ariz. 389] to call into the jury box thirty-two jurors (section 44-1320(a), A.C.A.1939), since the maximum penalty for the offense charged is life imprisonment. Section 43-606, A.C.A.1939. These jurors were then examined by the court and counsel as to their qualifications to sit in this case. None being challenged for cause or excused by the court, the judge directed each counsel to exercise the peremptory challenges granted by law. Section 37-120, A.C.A.1939. The clerk of the court handed to the county attorney and later to defense counsel a jury list containing the names of jurors. This list provided a column for each party in which to indicate his peremptory challenges opposite the names of the individual jurors. The county attorney struck nine names by the use of numerals in his column and by drawing a line through each juror's name. Defendant exercised five peremptory challenges,
striking jurors numbered (on the printed sheet) 1, 10, 12, 31 and 32 by placing numerals 1 to 5, respectively, in the column opposite the names of such jurors, though no line was drawn through the names. The clerk when directed by the court to call the names of the first twelve unchallenged jurors to compose the jury for the trial of this case very carelessly, though doubtless unintentionally, called into the box jurors George Waldon (#1), Evaline May Lofing (#10), and Harry W. Bowers (#12), each of whom had been peremptorily challenged by the defendant, and those jurors formed a part of the panel that rendered a verdict of guilty against the defendant. Defendant avows, and it is not denied by the state, that neither he nor his counsel knew the jurors personally or by name; that he relied upon the clerk to omit those whom he had challenged; that in the shifting incident to the release of the twenty jurors different seats were taken by those remaining thereby preventing ready recognition of those ...