Rehearing Denied Jan. 26, 1960.
[87 Ariz. 30] Connor & Mahoney, Phoenix, for appellant.
Wade Church, Atty. Gen., Charles Christakis, Asst. Atty. Gen., and Charles C. Stidham, County Attorney of Maricopa County, Phoenix, for appellee.
PHELPS, Chief Justice.
Appeal in this case was taken from a judgment of conviction and a denial of a motion for a new trial. The appellant, Loyal Lee Haley, hereinafter referred to as defendant, is one of three youths convicted in the superior court of Maricopa county on three separate felony counts: robbery, aggravated assault, and lewd and lascivious acts.
Defendant, then fifteen years of age, was charged, together with two others youths, with having picked up a sixteen-year-old hitchhiker, Donald Cook, in Chandler, Arizona, on June 9, 1958; taking him out on the desert, and there robbing, beating and abusing him sexually.
All three accused were tried jointly, being represented by the same counsel, and the evidence being heard by the same judge and jury. Having been convicted on all [87 Ariz. 31] three counts, they received idential sentences: Count I (robbery), 15 to 20 years; Count II (aggravated assault), 4 to 5 years; Count III (lewd and lascivious acts), 4 to 5 years; all to run consecutively.
Counsel for the appellant in the formal hearing before this court chose to abandon his first assignment of error in connection
with the irregular manner in which the jury was impaneled. Only the remaining three assignments, therefore, will be dealt with in this opinion.
The three remaining assignments of error made are as follows: (2) Failure of the court to give a cautionary instruction to the jury that the confessions or admissions of codefendants are not binding upon a nonconfessing defendant; (3) Failure of the court to grant defendant a new trial upon its own motion, for the reason that the conduct of the defense was so incompetently managed as to exclude the notion the defendant received a fair trial; and (4) Failure of the court to reduce on its own motion the cruel and inhuman sentence meted out to defendant.
In support of the second assignment of error appellant states the following proposition of law:
'The voluntary confession of a codefendant made after the commission of a crime cannot be admitted against the other defendant when such confession was not made in his presence and assented to by him, and it was reversible error on the part of the trial court not to so instruct.'
No cautionary instruction of this nature was requested by the defense counsel in the trial court. The confessions of defendant-Haley's condefendants were clearly competent as against them, and for that reason they were admitted. If the defendant-Haley desired to limit their application to the other defendants it then became his duty to request the proper limiting instruction. It was not the duty of the trial court sua sponte, as argued by the defendant's counsel on appeal to instruct the jurors that they must exclude the confession of a codefendant when they consider the quantity of evidence available against each defendant.
In Cleaver v. United States, 10 Cir., 238 F.2d 766, 770, several defendants were tried jointly for the burglary of a contract post office in Denver, Colorado. An officer of the government was allowed to testify concerning a statement made to him by one of the defendants. In that case Judge Lewis of the United States Court of Appeals, Tenth Circuit, had this to say:
'* * * Where evidence is admissible as to one of several defendants it generally must be received and then it becomes the duty of the others to submit instructions limiting its effect, Dauer v. United States, 10 Cir., 189 [87 Ariz. 32] F.2d 343. In the instant case no such instruction was given nor was it requested and it has been held that it is incumbent upon the parties to request such instruction and a failure so to do precludes review of the question. Troutman v. United States, 10 Cir., 100 F.2d 628.' * * *
And in State v. Polan,
80 Ariz. 129, 293 P.2d 931, 933, a contention somewhat similar to the one presently ...