Judgment reversed and case remanded for a new trial.
Walter M. Stevenson, Tucson, for appellant.
Fred O. Wilson, Atty. Gen., Chas. Rogers and Maurice Barth, Asst. Atty. Gen., for appellee.
Faulkner, Superior Court Judge. Udall, C. J., and Stanford, De Concini and La Prade, JJ.,
concur. Phelps, J., having announced his disqualification, the Honorable
J. W. Faulkner, Judge of the Superior Court of Mohave County was called to sit
in his stead.
Faulkner, Superior Court
[71 Ariz. 424] The appellant, who will be referred to herein as the defendant, was tried, convicted and sentenced on a charge of burglary of the first degree. The information charged defendant with commission of that crime by breaking and entering a private dwelling in the city of Tucson, in the night-time.
Shortly after defendant's arrest, he was interviewed at the county jail on two different occasions, by City Detective James C. Herron, who had served twenty years on the Tucson police force. On direct examination by Mr. O'Mara, deputy county attorney, Herron gave the details of his second conversation with defendant, and, over strenuous objections by counsel for defendant, was permitted to testify as follows:
"Q. Now what further conversation with reference to this incident did you have with the defendant, if any? A. I had conducted an investigation after I had interviewed him and went to him again on the 29th, at the county jail.
"Q. What time was that? A. In the afternoon, sometime around five o'clock.
"Q. What conversation did you have at that time? A. I asked Mr. Thomas at that time, advised him he hadn't told me the truth; had learned that he wasn't married and that he had come to Tucson a week prior to the time of the burglary, since he had been released from Huntsville.
"Mr. Stevenson: Now, your Honor, I object to this. They are impeaching this witness when he hasn't been on the witness stand.
"Mr. O'Mara: If your Honor please, he is entitled to testify to what conversation he ...