Order in accordance with opinion.
Edward W. Scruggs, Tucson, Shute & Elsing, Paul H. Primock, Phoenix, for petitioner.
Robert Morrison, County Atty., Norman Herring, Deputy County Atty., Tucson, Fred O. Wilson, Atty. Gen., for respondent.
La Prade, Justice. Udall, C. J., and Stanford, Phelps and De Concini, JJ., concur.
La Prade, Justice.
[74 Ariz. 336] This matter comes before the court on account of a writ of habeas corpus issued out of and returnable to this court, directed to and commanding the Sheriff of Pima County, Arizona, to show cause for the alleged illegal detention and incarceration of one E. B. Chitwood, petitioner for the writ.
From the petition for and the return to the writ it appears that on the 5th day of September, 1952, a complaint in writing was lodged with the Hon. Lee Garrett, one of the presiding Superior Court judges of Pima County, acting in the capacity of a magistrate. This complaint was subscribed and sworn to by Mr. Norman Herring, and contained two counts. The first count charged the defendant, Fred O. Wilson, Attorney General of the State of Arizona, with the crime of conspiracy alleged to have been committed some time between July 1, 1948 and January 1, 1951. Generally, this count charged that the said Fred O. Wilson had conspired and agreed with numerous named individuals to "pervert and obstruct justice and the due administration of the laws of the State of Arizona and in particular did conspire and agree to violate Article 27, Chapter 43, A.C.A.1939." It was also alleged that in furtherance of and pursuant to the conspiracy the defendant committed certain overt acts enumerated therein, namely:
1. That defendant offered the sum of $ 800 to $ 1000 a month to Maurice G. Guiney, a Deputy Sheriff of Pima County, Arizona, with intent to influence him to permit slot machines and gambling houses to operate within Pima County, Arizona.
2. That Fred O. Wilson received, or agreed to receive, various sums of money from persons in Pima County upon the agreement or understanding that the opinion or action of Fred O. Wilson, as Attorney General, would be influenced thereby upon any matter concerning enforcement of gambling laws of the State of Arizona.
[74 Ariz. 337] 3. That the defendant interceded in a dispute between owners and operators of
slot machines in Tucson for the purpose of settling a dispute between the said slot machine owners and operators, to the end that certain owners would not destroy slot machines in various locations in Pima County, and particularly that the machines of one Charles Waite would not be molested.
Count 2 of the complaint alleges that between January 3, 1949 and January 1, 1951, defendant committed the crime of bribery in Pima County, Arizona, charging that he, in his official capacity, received or agreed to receive various sums from various persons, upon an agreement and/or understanding that his opinion and/or action would be influenced thereby upon any matter concerning the enforcement of gambling laws of the State of Arizona.
Petitioner appeared in response to a subpoena, at which time the magistrate directed Mr. Norman Herring, appearing as a Deputy County Attorney and special prosecutor, to conduct the examination of the witness. At this time the petitioner was sworn as a witness and gave some testimony.
On advice of counsel the witness refused to answer the following two questions:
1. "Isn't it true, Mr. Chitwood, that during the years of 1949 and 1950 you engaged in operating a gambling house or establishment within Pima County, Arizona?"
2. "Mr. Chitwood, did you at any time during 1949 or 1950 pay any money to Fred Wilson, Fred O. Wilson, attorney general of the State of Arizona, for the purpose of influencing his actions one way or another in regard to the enforcement of the gambling laws of the State or in regard to his rights or duties in the supervision of the county attorney of Pima County in relation to the enforcement of those same gambling laws; did you ever pay him any money, in other words, as a bribe?"
The refusal was upon the announced ground that his answers might tend to incriminate him. At this time the prosecutor read to Mr. Chitwood the provisions of Article 2, Section 19 of the Constitution, and the provisions of Section 43-2715 of A.C.A.1939, relative to immunity, and advised him that on account of the constitutional and statutory provision he was not exempt from testifying, and that the Constitution and statute extended immunity. His counsel then advised him that at that time there was presently pending against the witness, in the Superior Court of Pima County, two indictments, one charging perjury on account of his answers to similar questions propounded to him before the grand jury which returned the indictments. The magistrate advised the witness [74 Ariz. 338] that it was his opinion that on account of the constitutional and statutory provisions referred, to, no prosecution on account of any disclosures made under compulsion could be had against him, and then directed the witness to answer each of the questions. Refusal was again made, whereupon the magistrate announced that in view of the witness' attitude and position, the witness was in direct contempt of court, and relying on Section 21-935, A.C.A.1939, the magistrate adjudged the witness to be in contempt and ordered him "committed to the Pima County jail for contempt, there to remain until you shall consent to give evidence by answering the questions propounded to you or until discharged by law."
At the conclusion of his hearing the magistrate announced he was of the opinion that reasonable grounds existed to believe that an offense had been committed by the person accused in the complaint, and ordered that a warrant for the arrest and apprehension of the defendant should issue, which was then and there issued. On September 8th the court reconvened for the purpose of entertaining a motion of the contemnor seeking his release, upon the ground and for the reason that the proceedings out of which the order of arrest had issued had ...