[82 Ariz. 286] Robert Morrison, Atty Gen., and L. Alton Riggs, Sp. Asst. Atty. Gen., for appellee.
Axline & Shelley, Holbrook, for appellant.
Appellant Ralph Stago was charged in the court below with the commission of two crimes, both felonies; namely, that of burglary and that of resisting and obstructing a public officer. Separate informations were filed which were consolidated for trial and tried as consolidated cases
over his objections. Appellant, defendant below, was acquitted of the charge of burglary and convicted of resisting and obstructing a public officer.
Three questions are raised by this appeal. (1) Whether the two offenses were properly consolidated for trial; (2) whether the county attorney during the course of the trial committed prejudicial error in referring to a prior felony conviction; and (3) whether the trial court erred in failing to grant defendant's motion for a directed veridict on the grounds that the evidence did not establish the crime of resisting or obstructing a public officer.
As to the first question, this state has provided by its 17 A.R.S. Rules of Criminal Procedure, Rule 128, subd. A When offenses may be consolidated for trial:
[82 Ariz. 287] 'An indictment, information or complaint charging two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, shall be under separate counts, and if two or more indictmenst or informations are filed in such cases, the court may order them consolidated.'
By specifying when offenses may be consolidated, there is impliedly negatived any authority to consolidate under other or different circumstances. Plainly these offenses are not different statements of the same offense, nor are they of the same class of crime. No facts are alleged on the informations from which it can be inferred that the two offenses are connected together in their commission. The simple allegations of both they were committed on or about the 20th day of April, 1956, does not alone suggest that they were so connected as to be part of the same transaction. Moreover, the evidence introduced at the trial establishes that the two incidents of burglary and resisting and obstructing a public officer were not related in time, place, or causality. The consolidation of the two informations for trial is, therefore, prejudicial and reversible error. People v. Frank, 130 Cal.App. 212, 19 P.2d 850; State v. Agnew, 7 N.J.Misc. 915, 147 A. 485.
As to the second question, it appears that the county attorney in corss-examining the defendant asked him if he had ever been convicted of a felony. After objection and discussion between the court and counsel, the question was withdrawn; seemingly, the county attorney was not prepared to prove the prior conviction if the defendant answered in the negative. While it is well settled in this jurisdiction that when a defendant offers himself as a witness he may be examined on whether he has suffered a previous conviction of a felony, State v. Polan, 78 Ariz. 253, 278 P.2d 432; Hadley v. State, 25 Ariz. 23, 212 P. 458, it is also equally well settled that a prosecuting officer, in order to impeach him as a witness, cannot engage in questioning which casts insinuactions without being prepared and able to prove the insinuations, State v. Singleton, 66 Ariz. 49, 182 P.2d 920. Although the trial court instructed the jury to disregard '* * * any thought whatsoever of the meaning of the question propounded * * *', prejudices which are so easily aroused are not thus so readily expunged.
Finally, the defendant complains that the evidence does not establish the crime of resisting or obstructing a public officer. We observe the information charges that the defendant, by the use of force and violence, resisted, delayed and obstructed '* * * a public officer, towit: Ernest Dillon, Deputy Sheriff of [82 Ariz. 288] Navajo County, * * *'. The evidence in support of the charge showed that at the time of the alleged offense Dillon was wearing a police officer's uniform. He did not receive a salary from the county as a deputy sheriff, but worked for the Pinetop Merchant Patrol. He did have a deputy sheriff's card issued to him by the Sheriff of Navajo County. His appointment was not recorded in the office of the county recorder,
nor does it appear that his appointment was ever directly approved by the Board of Supervisors of Navajo County.
Section 11-409, A.R.S.1959 provides the method by which deputy sheriffs are appointed:
'A. The county officers enumerated in § 11-401 may, by and with the consent of, and at salaried fixed by the board, appoint deputies, stenographers, clerks and assistants necessary to conduct the affairs of their respective offices. The appointments ...