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Abbott v. Superior Court of Pima County

Supreme Court of Arizona

November 4, 1959

Alexander L. ABBOTT and Sam R. Kaufman, Petitioners,
SUPERIOR COURT OF PIMA COUNTY and Honorable Gordon Farley, Judge of the Superior Court of Pima County, Respondents.

[86 Ariz. 310] Scruggs & Rucker, Tucson, for petitioner Alexander L. Abbott.

McCarty, Chandler, Tullar & Udall and Sidney Weissberger, Tucson, for petitioner Sam R. Kaufman.

Wade Church, Atty. Gen., Harry Ackerman, County Atty. of Pima County, by John Claborne, Deputy County Atty., H. Earle Rogge, Jr., Sp. Deputy County Atty., Tucson, for respondents.

PHELPS, Chief Justice.

This is an original proceeding initiated in this court by petitioners, Alexander L. Abbott and Sam R. Kaufman, seeking to prevent respondent, the Honorable Gordon Farley, a nonresident judge presiding in the Pima County Superior Court, from taking any further action in criminal cause No. 11671, which involves a bribery indictment, [86 Ariz. 311] containing several counts against petitioners.

An informal hearing was held in accordance with the provisions of Rule 1, Rules of the Supreme Court, 17 A.R.S. following which we issued an alternative writ of prohibition in order to resolve the question as to whether, under the admitted facts, the respondent court had jurisdiction to arraign and then proceed with the trial of petitioners. Prior to the filing of this petition the petitioners (as defendants) had moved,

Page 777

on various jurisdictional grounds, to quash the indictment theretofore returned against them by a Pima County Grand Jury. The motion to quash was denied, and such order is not appealable. Hence it appeared to us that under the peculiar facts of this case prohibition was a proper remedy to test jurisdiction of the Court, for as was stated by the Supreme Court of California in a prohibition proceeding, entitled Bruner v. Superior Court, 92 Cal. 239, 28 P. 341, 345:

'The only other question is: Would petitioner have a plain, speedy, and adequate remedy in the ordinary course of law? If there be such remedy, it must be by appeal. But it would be a difficult proposition to maintain that a defendant in a criminal case, forced through all the stages of a trial for felony without any indictment against him, or, which is the same thing in effect, upon a void indictment, would have a plain, speedy, and adequate remedy, because, after conviction and judgment, and perhaps after suffering the ignominy of imprisonment in the state-prison, he could have the illegal proceeding reversed on appeal. * * *'

Various interesting questions of law were urged in the trial court as to why indictment should be quashed and they were reiterated here in the amended petition for writ of prohibition. As presented to us they were substantially:

1. That the indictments were not found endorsed and presented as prescribed by the Rules of Criminal Procedure, rules 108, 153, 17 A.R.S. In this connection it was claimed and shown that when jurors were absent from the grand jury sessions when testimony was being received and when such jurors returned, the foreman or other member of the grand jury, or the county attorney, summarized the testimony received during their absence.

2. That less than the required number of grand jurors heard the evidence and deliberated upon the evidence relating to these indictments (we interpret this to mean that there was less than a quorum present either when the evidence was received or when the jury voted on the question of a true bill).

3. It is claimed that the constitutional rights of the defendants have been violated in that the sessions of the grand jury were [86 Ariz. 312] illegally held because they were not held at the Pima County Courthouse but in the United States Post Office building in Tucson, a place under the exclusive jurisdiction of the United States and not a part of the 'County seat' of Pima county.

These matters which are claimed to have violated the constitutional rights of the defendants present serious jurisdictional questions of law. Inasmuch, however, as it is most improbable that any future state grand jury session will, as here, be again held on a federal 'enclave' we believe it to be unnecessary for a resolution of the jurisdictional question raised in respect thereto. We shall therefore confine our discussion to the first points above mentioned, which will be determinative of the matter.

The facts are that the Superior Court of Pima County called a grand jury under the provisions of A.R.S. § 21-312. As a result of said call, 17 grand jurors were duly empaneled and, after the appointment of a foreman, were sworn and instructed as to their duties by the Honorable Lee Garrett, one of the judges of the Pima County Superior Court. The precise problem presented is that the jurors voting for the return of said indictment, according to the grand jury minutes, did not hear all of the evidence; that some were excused and were given a summary of the evidence received during their absence by the foreman or other member of the grand jury, or by the county attorney, i. e., their interpretation of the testimony received during such absence.

In the case of United States ex rel. McCann v. Thompson, 1944,144 F.2d 604, 156 A.L.R. 240, authored by the distinguished Chief Judge Learned Hand of the Second Circuit Court of Appeals, it was held that the absence of a juror from the grand jury room when ...

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