The STATE of Arizona ex rel. William P. MAHONEY, Jr., County Attorney of Maricopa County, Petitioner,
The SUPERIOR COURT of MARICOPA COUNTY, Hon. Henry S. Stevens, one of the Judges thereof, Respondent.
[78 Ariz. 75] William P. Mahoney, Jr., County Atty. of Maricopa County, and James H. Green, Jr., Dep. County Atty., Phoenix, for petitioner.
Marvin Johnson, Phoenix, for respondent.
The State of Arizona, at the relation of William P. Mahoney, Jr., County Attorney of Maricopa County (hereinafter termed petitioner), sought an original writ of prohibition in this court directed to the Superior Court of Maricopa County and the Honorable Henry S. Stevens, one of the presiding judges thereof (hereinafter designated respondent), to restrain the court from enforcing an order requiring the petitioner to produce certain tangible physical objects in his possession for the inspection of a defendant in a criminal proceeding then pending in said court.
To resolve the important jurisdictional question involved-one of first impression in this state-we issued an alternative writ of prohibition; return, answer and briefs having been filed the matter was ordered submitted as oral argument had been waived. Being fully advised in the premises, we thereupon on October 13, 1954, by a minute order quashed the alternative writ theretofore issued, announcing at the same time that in obedience to constitutional mandate, art. 6, sec. 2, the grounds for our decision would be subsequently given in writing. We now state these reasons.
We think prohibition was properly entertained for the above stated purpose as the order permitting an inspection of objects in the possession of the prosecutor is not the subject of appeal, Rule 419, Cr. Proc., Sec. 44-2508, A.C.A.1939, even had it been entered without jurisdiction. Hence, unless its enforcement can be checked, the State is without a remedy. While the order
had already been entered when prohibition was invoked, its force had not been spent, nor its capacity for harm exhausted, as the order had not been complied with. In the case of Pacific Greyhound Lines v. Brooks, 70 Ariz. 339, 220 P.2d 477, 478, we stated:
'* * * so long as anything remains to be done under a void judgment or order, prohibition may prevent the doing of it."
See also, People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200.
The record discloses the following situation: One William Demand had been held to answer to the superior court on a homicide charge. The case having been set for trial on October 19, 1954, upon an information[78 Ariz. 76] charging murder, counsel for defendant filed a motion for production and the opportunity to inspect certain documents, papers and tangible objects then in the possession of the prosecutor, asserting that this was necessary in order for him to properly prepare his defense in the case. The defendant in enumerating the items he wanted to inspect included private memoranda, i. e., the 'work product of the prosecutor', as well as tangible physical objects such as pistols, a lead slug taken from the body of the man whom he was accused of killing; a shirt, car keys, etc. The trial court refused to allow an inspection of the former items, but entered an order compelling the State to produce the latter items for the defendant's inspection upon his compliance with certain conditions.
The petitioner contends that under the common law the right of discovery and inspection did not exist in the field of criminal law, and hence in the absence of an authorizing statute or court rule the trial court was wholly without jurisdiction to make the order in question. We agree that the common law as it came to us from England recognized no right of discovery or inspection prior to trial in criminal cases. As stated in Walker v. People, 126 Colo. 135, 248 P.2d 287, 302:
'The right of discovery in criminal cases is not recognized at common law. * * * The genesis of the theory of pre-trial discovery and inspection lies in the rules of equity, which have presently been enlarged in most jurisdictions to apply in practically all civil proceedings. It is readily apparent, however, that the tools of equity are in no wise fitted to the mechanics of the trial of a criminal case. * * *'
See also Shores v. United States, 8 Cir., 174 F.2d 838, 11 A.L.R.2d 635; State v. Haas, 188 Md. 63, 51 A.2d 647; State v. Dorsey, 207 La. 928, 22 So.2d 273, 283. The leading English case is Rex v. Holland, 4 Durn. & E. 691, 4 Term Rep. 691, 100 Eng.Reprints 1248, cited in most American cases on the problem. Therein it was held 'there was no principle or precedent to warrant' the granting of an application to inspect evidence contained in a report of a board of inquiry of the East India Company. However, this rule has since been radically changed in England as an incident to the adoption of pre-trial procedure before a committing magistrate, whereby now
'* * * All of the evidence in the possession of the Crown is in the possession of the counsel for the defendant. He knows all that the Crown knows. He has all the evidence in his possession before the witness goes on the stand. He has all the evidence that can be presented in that court at trial, before the trial begins * * *.' Wigmore on Evidence, 3d Ed. Volume 6, Section 1850, quoting a lecture given by the Honorable Charles S. Whitman.
Concededly, at present there is no rule of court or statute in Arizona expressly[78 Ariz. 77] authorizing inspection and discovery in criminal cases prior to trial. However, counsel for the respondent urges that ...