Opinion Modified on Rehearing February 25, 1952. See 73 Ariz. 314, 240 P.2d 1202.
Fred O. Wilson, Atty. Gen., Earl Anderson, Asst. Atty. Gen., Robert Morrison, County Atty., Pima County, Morris K. Udall, Chief Deputy County Atty., Tucson, for appellant.
Scruggs, Butterfield & Rucker, Tucson, for appellee.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concur.
[73 Ariz. 164] This is an appeal by the state from an order granting defendant's motion in arrest of judgment and from the order granting his motion for a new trial, and from the whole of said order.
The defendant was charged by indictment with having, during the fall of the year 1946, wilfully, unlawfully and feloniously agreed and conspired with one Walter Porter to operate a gambling casino, that is, dice games, roulette, twenty-one, etc., upon premises owned by the defendant near Tucson, Arizona; and that he and
the said Walter Porter thereafter pursuant to such conspiracy during the fall and winter of 1946 and the winter and spring of 1947, did operate such gambling games upon said premises in violation of law.
Prior to the filing of this indictment the defendant together with a number of other witnesses including Walter Porter, Harold Fisher, Henry Porter, John E. Gregory, Raymond L. Harris, Elmore Wesley Sheppard, James Fant, and Jack Bayer were called as witnesses before a grand jury then in session in Pima County convened primarily for the purpose of ascertaining whether public officials were receiving bribes as a consideration for permitting gambling to be carried on in Pima County.
At the time defendant and the other witnesses were called before the grand jury they were informed in substance that under the constitution, article 2, section 19, if they had knowledge or were in possession of any facts tending to establish the guilt of any other person or corporation charged with bribery they were not excused from giving testimony or producing evidence when called upon to do so on the ground that it might tend to incriminate them under the laws of the state, but that no person could be prosecuted, or subject to any penalty or forfeiture for, or on account of any transaction, matter or thing concerning which they might testify.
The defendant did not take the witness stand at the trial of the cause and the other witnesses appearing before the grand jury with the exception of the witnesses Bayer, Fant and Sheppard refused to answer any questions concerning gambling in Pima County presumably upon the ground that it might be self-incriminating, which claim the court honored. At the close of the state's case and at the close of the entire [73 Ariz. 165] evidence counsel for defendant presented motions for an instructed verdict. These motions were denied and the cause submitted to the jury under instructions designed to cover the law involved and a verdict of guilty was returned. Thereafter the court granted defendant's motion in arrest of judgment upon the ground that "the indictment does not charge defendant with an offense since the commission of the crime of gaming, which was the purpose of the conspiracy charged, required concerted action of two or more persons and was therefore not indictable." The court also granted defendant's motion for a new trial upon the grounds:
1. That all the testimony adduced against the defendant was that of accomplices to the crime and the state failed to corroborate same as required by law;
2. That it appeared from the record that the defendant prior to indictment was required to testify before the grand jury as to some matters concerning which he was indicted and that he was thereby immune from prosecution for the offense charged;
3. Upon the ground that the court had erred in honoring the claims of privilege by witness Bayer as to questions concerning gaming operations by said witness for the reason that by law the witness was immune from ...