Application of Leroy WILLIAMS, for a Writ of Habeas Corpus.
Rehearing Denied Jan. 14, 1959.
[85 Ariz. 111] Alfred C. Marquez and Lawrence Ollason, Tucson, for appellant.
Robert Morrison, Atty. Gen., Raul H. Castro, County Atty., and H. E. Rogge, Jr., Chief Deputy County Atty., Tucson, for appellee.
LORNA E. LOCKWOOD, Superior Court Judge.
Appellant Leroy Williams (hereinafter referred to as Williams of defendant), appeals from denial of his application for release from custody upon a writ of habeas corpus. Williams had been charged with first degree murder by complaint filed by the county attorney of Pima County, and a preliminary hearing was held on April 26, 1957, before a magistrate, who held Williams to answer on a charge of second degree murder.
On June 25, 1957, the matter came to trial before Honorable Frank E. Thomas, presiding judge in the Superior Court of Pima County, a jury was empaneled, the state presented its case in chief, and rested. Williams' counsel moved for directed verdict, and the state moved to dismiss pursuant to A.R.S. § 13-1595, which reads as follows:
'Procedure where proof shows higher offense; effect
'A. If upon the trial of any action it appears to the court by the testimony that the facts proved constitute an offense of a higher nature than that charged, the court may direct that the jury be discharged and all proceedings on the indictment or information suspended, and may order the commitment of the defendant, and if the offense[85 Ariz. 112] is bailable, direct in the order that the defendant may be admitted to bail in the amount fixed, which shall be specified in the order, to answer any indictment which may be returned, or any information which may be filed against him following a preliminary hearing, within thirty days after such suspension of proceedings by the court.
'B. If the defendant is committed or admitted to bail in order to hold him
for a higher offense, as provided in subsection A, it is not an acquittal of the offense in which proceedings were suspended, and no plea of former jeopardy or former acquittal shall be sustained by reason thereof.'
The court denied defendant's motion, granted the state's motion, discharged the jury without defendant Williams' consent, ordered all proceedings on the information charging second degree murder suspended, ordered the defendant committed to the custody of the sheriff without bond, and instructed the county attorney to file a new complaint in the justice court charging first degree murder, on the ground that the evidence presented at the trial showed that an offense of a higher nature than that charged had been committed.
The defendant filed a notice of appeal, and the county attorney filed a motion to dismiss the appeal, which latter motion was granted on July 9, 1957. Subsequently, on July 10, 1957, the defendant applied for a writ of habeas corpus, on the grounds that he had been placed in jeopardy under the proceedings for second degree murder, and therefore could not be held on a subsequent charge of first degree murder, which would constitute double jeopardy, contrary to Article 2, Section 10, Arizona Constitution, and Amendment V, United State Contitution, and further that he was deprived of due process of law under Amendment XIV, United States Constitution.
Upon hearing of the return of the writ of habeas corpus, before Honorable J. Mercer Johnson, Judge of Superior Court of Pima County, the court denied defendant's application for a discharge, finding that the jury as empaneled was not a legal jury, and the defendant had therefore never been in jeopardy on the charge of second degree murder. This ruling is the basis for defendant's assignment of error No. V, which we shall discuss first.
The basis of the court's finding that the jury was not a legal one was that pursuant to Rule 225, Rules of Criminal Procedure, 17 A.R.S., the state and the defendant shall each be allowed ten peremptory challenges if the offense charged is punishable by death or imprisonment for life. Second degree murder is punishable by imprisonment from ten years to life. Therefore, in order to comply with Rule 225, to permit the number of peremptory challenges [85 Ariz. 113] provided therein, there should have been thirty-two jurors drawn. At the trial, however, only twenty-four jurors were drawn, sworn and examined. Both the state and the defendant exercised peremptory challenges, and the remaining twelve jurors were sworn to try the case. Nowhere in the record does it appear that any objection was made by either the state or the defendant to this discrepancy during the trial, either before or after the jury was sworn to try the case. This matter appears to have been raised first upon hearing of the application for habeas corpus, presumably by the court hearing the same. (There being no transcript of the hearing filed in this court we accept counsels' statement on this point.)
The lower court relied upon State v. Thompson, 68 Ariz. 386, 206 P.2d 1037, in finding that no legal jury had been sworn in the trial, the court stating:
'The Arizona Supreme Court in the case of State v. Thompson, 68 Ariz. 386 [206 P.2d 1037], has stated that a jury which is formed in such a manner that defendant is deprived of a substantial statutory right is not a lawful jury and that to impanel a jury in violation of law, in such a way as to deprive a party of his peremptory challenge, constitutes reversible error.
'It is therefore apparent from the record in the instant case that the jury as impaneled was not a legal jury; and that therefore the defendant could not be in jeopardy at the time the court discharged the jury.'
We believe the distinguished judge misinterpreted the basis for this court's decision in the case cited. In that case there was no ...