[88 Ariz. 45] Leon S. Jacobs and Flynn & Allen, Phoenix, for appellant.
Wade Church, Atty. Gen., Jay Dushoff, Asst. Atty. Gen., Neal Roberts, Sp. Asst. Atty. Gen., and Charles C. Stidham, County Atty. of Maricopa County, Phoenix, for appellee.
[88 Ariz. 46] This is an appeal by the defendant Crosby G. Holden from a judgment of conviction and sentence in two criminal actions which had been consolidated for trial. The convictions were for the presentation of a false claim to the State Treasurer in the sum of $8,700 and for conspiring with one Sam Deutsch to commit grand theft in the same amount.
The facts are that defendant was appointed chief right of way agent for the Arizona State Highway Department on January 15, 1955 and continued to occupy that position until his discharge on November 13, 1957. During the month of January 1957 a claim was made to the Arizona Highway Department by a party purportedly named John S. Rogers claiming payments for land deeded to the Highway Department for right of way purposes and demanding payment therefor in the sum of $8,700. The evidence clearly reveals that John S. Rogers was a fictitious person and the land purportedly deeded was the property
of one Emory Hurley. The claim was approved by the Highway Department and through proper channels reached the State Auditor who issued a state warrant in that sum in honoring said claim. This warrant came into the hands of one San Deutsch. The latter admitted that he endorsed the warrant in the name of John S. Rogers and deposited the same in a fictitious bank account. Thereafter, the warrant, following banking customs, was presented to the State Treasurer and was paid.
The falsity of this claim was later discovered and a number of charges was preferred against defendant, and Sam Deutsch, and one Kelly Moore, a former chief right of way agent for the State Highway Department. Disposition has previously been made of all of said charges except the two involved herein.
Defendant has assigned four errors each of which he claims to be so grievous as to require a reversal of said judgment of conviction. We will consider them in the order which seems most appropriate. The first assignment charges that: The court erred in failing to grant defendant's motion to quash County II of information No. 32171 upon the grounds that the same had been refiled without leave of court. Defendant asserts that this may not be done without leave of court when the same charge has been previously dismissed upon a motion to quash.
The record discloses that the county attorney first filed a complaint against defendant in the justice court charging him with filing a false claim with the Arizona Highway Department. The defendant was held to answer and the information contained the same charge. Upon motion of defendant the information was quashed, and correctly so because it clearly did not charge a public offense for the very simple [88 Ariz. 47] reason that the State Highway Department is not '* * * a board or officer authorized to pay them (the claim here involved) when genuine, * * *.' Under the provision of A.R.S. § 13-317 the claim must be presented to a board or officer authorized to pay such claim.
The county attorney later without leave or court, filed another complaint against defendant properly charging that the claim was presented to and paid by the State Teasurer which did state a public offense. The defendant was held to answer to the superior court on the latter complaint and the information is here under attack for the reasons stated above.
Specifically defendant contends that 17 A.R.S. Rule 175, Rules of Criminal Procedure, denies to the county attorney the authority to file a new complaint based upon the same offense after the information has been quashed or set aside by the trial court without leave of such court. He cites State v. Phillips, 27 Ariz. 349, 233 P. 586, as authority for his position. We do not think the above case is authority for defendant's contentions in the instant case. That case was based upon an entirely different statute than that upon which the instant case is controlled.
As pointed out by the State, the Phillips case, supra, was controlled by the provisions of Section 978 to 988 found in Chapter I of Title VIII of the 1913 Penal Code entitled 'Demurrer.' Section 984 thereof specifically provided that:
'If the demurrer is allowed, the judgment * * * is a bar to another prosecution for the same offense, unless the court, * * * directs a new information to be filed; * * *.'
When the Rules of Criminal Procedure were adopted in this jurisdiction demurrers were done away with and defects in information or indictments were thereafter taken by motions to quash. Rule 168. Rule 176, A.R.S. Rules of Criminal Procedure expressly provides that:
'An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in Rule 169 * * *.' (None of the exceptions listed are applicable here.)
It is therefore clear to us that the county attorney was wholly within the authority
of Rules 176 and 177, Rules of Criminal Procedure, in filing a new complaint against defendant without first procuring an order from the court to do so. See, State v. King, 66 Ariz. 42, 182 P.2d 915; State v. Freeman, 79 Ariz. 281, 279 P.2d 440; State v. Freeman, 78 Ariz. 291, 279 P.2d 446; State v. Coursey, 71 Ariz. 227, 225 P.2d 713.
Defendant's second assignment is that: The court erred in allowing the witness [88 Ariz. 48] (Governer) Ernest W. McFarland to testify to a purported confession without a proper foundation that the same was freely and voluntarily given without threats or promise of immunity.
This court in the recent case of State v. Pulliam, Ariz., 349 P.2d 781, 783, held that whenever a confession is offered in evidence the burden is on the prosecution to lay a prima facie foundation for its introduction by preliminary proof showing that it was freely and voluntarily made and that unless a confession was freely and voluntarily made it was not entitled to admission in evidence. We further held in the Pulliam case that:
'The rule is well settled in this state that whether a confession is voluntary or not is a preliminary question of law and fact for the trial court to determine in the first instance upon a preliminary investigation into the facts and circumstances surrounding the taking of the confession.'
The facts and circumstances surrounding the taking of the confession complained of in the present action are as follows: About November 13, 1957, Ernest W. McFarland, then Governor of the State of Arizona, and Robert Morrison, then Attorney General of the State, and a member of the Board of Pardons and Paroles, requested that the defendant be brought to the office of the Governor. The defendant was taken to the office of the Governor by the Secretary of the Highway Commission, at which time there were present besides the Governor and the Attorney General, three members of the Governor's staff. The defendant was there interrogated by the Governor and the Attorney General concerning a 'John S. Roger claim' and a 'John S. Roger warrant', and denied that he had in any way been a party to an attempt to defraud the State and denied any guilty knowledge of the transaction, admitting only that being the head of the particular department involved, it would be his responsibility for what had occurred.
Attorney General Morrison then requested the Governor to permit him to 'talk to Mr. Holden privately'; the defendant was taken by the Attorney General to a private room for approximately fifteen minutes. Upon returning, the Governor's staff was requested to leave, and the Attorney General advised the defendant to 'Well, just go ahead and tell the Governor in your own words.' The defendant then gave his confession to the Governor.
At the trial the Governor was called to testify to the above matters and after relating the first conversation wherein the defendant denied any guilt, and after testifying that the Attorney General and the defendant had a private talk for some fifteen minutes, the Governor was asked to relate the second conversation, which was objected to by the defendant upon the [88 Ariz. 49] grounds that the State had failed to show that the alleged confession was freely and voluntarily given because of the fifteenminute interval spent in a private talk with the Attorney General. The Attorney General, who was sworn as a witness, was not called to testify to the private conversation with the defendant, and the trial court permitted the Governor to testify to the purported confession.
We find no excuse whatever for the State's counsel to permit this point to reach this Court in its present condition as the question was raised at the trial and Attorney General Morrison had been sworn as a witness at the beginning of the trial, and was available to cure the alleged defect in laying the foundation for such evidence. The State's Attorney, in the absence of the jury, could have called Morrison of testify to what transpired in the room with
the defendant, and if no promises or threats were made to the defendant, a prima facie foundation for the introduction of the confession could have been made.
While it appears from the record that Governor McFarland testified that defendant's statements to him were freely and voluntarily made and that the Governor carefully warned defendant that anything he said could be used against him, nevertheless, it is apparent that the Governor had no knowledge of what transpired between the defendant and the Attorney General in their 'private talk' only minutes before. We can only surmise what took place during this interval of fifteen minutes, but the record is ...