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State v. Mills

Supreme Court of Arizona

April 25, 1962

STATE of Arizona, Appellee,
William W. MILLS, Appellant.

In Banc.

[91 Ariz. 207] Earl Terman, Tucson, for appellant.

Robert W. Pickrell, Atty. Gen., Stirley Newell, Asst. Atty. Gen., Harry Ackerman, County Atty. of Pima County, by Sidney L. Cain, Deputy County Atty., for State of Arizona, appellee.

UDALL, Vice Chief Justice.

Defendant appeals from a felony conviction of theft by false pretenses. [1] The matter was tried by the court pursuant to Article VI, section 17 of the Arizona Constitution, A.R.S. which provides in pertinent part that:

'* * * The right of jury trial as provided by this constitution shall remain inviolate, but trial by jury may be waived by the parties in any civil cause or by the parties with the consent of the court in any criminal cause * * *.' (Emphasis added.) [2]

The material facts, viewed '* * * in the light most favorable to sustaining the conviction,' State v. Evans, 88 Ariz. 364, 366, 356 P.2d 1106, 1107 (1960) are as follows. On February 25, 1959 defendant, the complaining witness and her husband,

Page 947

Mr. and Mrs. William Steinert, signed a 'Deposit Receipt and Agreement' for the sale of a house and lot at 1202 E. Easy Street in Tucson by defendant to the Steinerts. This agreement recited a downpayment of $100 and called for $4,500 'to be paid about March 2, 1959' with the balance of the purchase price payable upon completion of the house then under construction. The agreement further provided that defendant would furnish the Steinerts a title insurance policy.

This cash transaction was concluded on July 10, 1959 at which time defendant deeded the property to the Steinerts subject only to taxes for the last half of 1959 and any and all encumbrances of record. Mrs. Steinert [3] testified that on several occasions[91 Ariz. 208] during the negotiations defendant was asked if the property was 'clear' and that defendant assured the Steinerts that 'everything is clear, that there is no mortgage or no lien or anything on it, and that we have nothing to worry about.'

However, during the entire course of these negotiations there was and still is outstanding a $5,917 mortgage on the property in favor of Mr. Nicholas Karabatsos. [4] The mortgagee, Karabatsos, testified that 'around the 22nd of July,' 1959 (twelve days after the property had been deeded to the Steinerts) defendant told Karabatsos that he had been unable to sell the house as of that time. Karabatsos also testified that he first met Mrs. Steinert in February of 1961 after noticing a 'For Sale' sign in the window of her home. Upon learning from her that defendant had sold the property in July of 1959 Karabatsos confronted defendant and asked to be paid. Defendant first replied that the sale to the Steinerts was 'in process' but then admitted that '* * * I can't give you the money right now.'

At the trial Mrs. Steinert also testified that defendant on numerous occasions promised to deliver the title insurance policy provided for in the 'Deposit Receipt and Agreement.' This he never did. Defendant took the stand at trial and generally confirmed all of the above but denied that he had made any affirmative representation that the property was free of encumbrances.

On appeal defendant first contends that the trial court lacked power to consent to the jury trial waiver on the ground that Article VI, section 17, supra, is not self-executing. But he offers no suggestion as to just what legislative action would be necessary to effectuate the right provided by the constitutional provision. 'The presumption is in general that provisions of state constitutions are self-executing.' Morgan v. Board of Sup'rs, 67 Ariz. 133, 140, 192 P.2d 236, 240 (1948). See also Miller v. Wilson, 59 Ariz. 403, 407-08, 129 P.2d 668, 670-71 (1942). Here the constitutional wording does not merely express a policy or general principle. It is simple, direct and needs no legislative implementation. That none was contemplated is strongly suggested by the use of the words 'as may be provided by law' in numerous other sections of Article VI. We hold that Article VI, section 17 is self-executing.

Defendant next urges that certain remarks of the trial judge indicated he was prejudiced against defendant. After the evidence was in and before rendering judgment the trial judge made some general findings. Included in these were the following comments:

[91 Ariz. 209] 'Incidentally, I don't expect counsel to know this, but the Court has been in the title business for some time. I owned a title company of my own for quite awhile, and I have been very conversant with the title procedures, and going through that, I handled it, and still own an interest in the title company.'

It is asserted that because the transaction between defendant ...

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