37-DETECTIVES. CRIMINAL LAW There is no law forbidding the employment of detectives to engage in the discovery and 7. INTOXICATING LIQUORS 236(1)—OFFENSES-SUFFICIENCY OF EVIDENCE. suppression of crime. In a prosecution for the violation of the prohibition amendment for the sale of whisky, held that there was substantial evidence in the record to support a conviction. ed in any improvement or work done under 16. We conclude that the assignments are without merit, and the judgment is therefore affirmed. J., Appeal from Superior Court, Yavapai County; Frank O. Smith, Judge. Larry Duff was convicted of a violation of Afthe prohibition law, and he appeals. firmed. Robert E. Morrison, of Prescott, for appellant. Wiley E. Jones, Atty. Gen., and Geo. W. Harben and R. W. Kramer, Asst. Attys. Gen., for the State. FRANKLIN, C. J. The appellant was convicted of a violation of the prohibition amendment. On the 22d day of May, FRANKLIN, C. J., and CUNNINGHAM, 1916, about 10 o'clock in the evening, concur. (19 Ariz. 361) DUFF v. STATE. (No. 430.) (Supreme Court of Arizona. March 5, 1918.) 1. CRIMINAL LAW 650-EXPERIMENTS. In a prosecution for a violation of the prohibition amendment, where the state's witnesses had testified as to the amount of ice in each glass containing liquor, when served to them, the admission of a drinking glass containing a piece of putty to represent the ice and to illustrate the liquid contents when the ice was subtracted was proper; it not being the duty of the court to require the prosecution to have the ice brought into the courtroom, cracked there, and the precise amount of ice placed in each glass. 2. CRIMINAL LAW 1169(5)—ADMISSION OF EVIDENCE-CURE BY INSTRUCTIONS. In such prosecution, any error in proving, by the sheriff, how much money the county had paid out for detective services and the profit to the county was cured by its exclusion and by an instruction not to consider it. 3. CRIMINAL LAW 555 - DETECTIVE EVIDENCE-WEIGHT AND SUFFICIENCY. one R. H. Bryant and his wife went into Birch Bros. restaurant in the city of Prescott, entering the restaurant through a rear door and occupying one of the booths reserved for patrons of the place. It appears that in connection with this restaurant the The Birch Bros. have a room equipped with bar fixtures, pool tables and other paraphernalia usually found in a saloon, the bar being used ostensibly for the purpose of selling soft drinks or nonintoxicating beverages. appellant, Larry Duff, was employed by Birch Bros. to sell and serve beverages at this bar, and, on a call from patrons in the booths adjoining the restaurant to take drinks into those private rooms for them. It appears from the testimony of the prosecution that the plan or scheme of the Birch Bros. to evade the law was to sell whisky, or other intoxicating liquors, to the patrons of the place under the subterfuge of selling ginger ale. On the evening in question, Bryant and his wife purchased from appellant 14 drinks. These drinks were served in glasses each containing about six ounces of liquid. Seven of the drinks were served to Bryant, and an equal number to his wife. Appellant admits serving these drinks to the Bryants on this occasion, but unequivocally asserts that the glasses placed before them contained nothing but ginger ale, with the addition of a suitable amount of ice to each glass thereof; that he served them with no intoxicating liquor whatever. The Bryants, however, are equally positive that the ginger ale contained in the glasses served to them by Duff contained intoxicating liquor disguised in the ginger ale. They drank porIn a prosecution for the violation of the tions of the liquid out of each of the glasses, prohibition amendment, the weight and credi- and, when testifying, described with minute bility of the testimony of the prosecuting wit-particularity the intoxicating effect of the nesses, detectives employed by the county, by reason of their interest and character was for liquor. In addition to this, the Bryants brought with them into the booth an empty In such prosecution, an objection that the evidence against defendant was largely furnished by hired detectives, and that for that reason its weight and credibility were undermined, was without force, as such fact would have aided the defendant more than it would have harmed 4. CRIMINAL LAW ➡372(2)—EVIDENCE-OTHER OFFENSES-SCHEME OR PLAN. him. In such prosecution, the admission of other acts similar to the one alleged in the information was proper, where it tended to show a scheme or plan resorted to as a subterfuge to evade the law and to corroborate and throw light on the offense charged, and where effect was limited to showing such scheme or subterfuge. 5. CRIMINAL LAW 742(1)-DETECTIVE EVI DENCE-PROVINCE OF JURY. the jury. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes pint bottle. In this empty bottle they pour-ale. This was but a mere subterfuge by which the illicit traffic in the forbidden thing was accomplished. The appellant denied the sale of intoxicating liquor altogether. His claim was that he sold ginger ale and nothing else. The principle upon which proof of other acts of a similar nature is allowed in cases of this kind may be readily understood, but it is the practical application of the principle to the concrete case that is attended with difficulty. In those cases where the evidence shows that the defendant has concocted a scheme or plan and is resorting to a subterfuge to evade the law, this class of testimony will be permitted to show the system or plan, to uhcover the subterfuge, "in corroboration of and to throw light on the offense charged." In Cluff v. State, 16 Ariz. 179, 142 Pac. 644, the principle was thus clearly stated: "The law recognizes that it is almost impossible to secure convictions for violations of the local option and other liquor laws, if the evidence is confined to a single sale, as ordinarily the criminal act is witnessed only by the buyer and seller; but observation and common knowledge teach that isolated and secret sales make important feature of the business, of the accused in these cases, and for that reason the facts and circumstances of other sales than the partion of and to throw light on the offense charged. ticular one charged are admitted as in corroboraChildress v. State, 48 Tex. Cr. 617, 90 S. W. 30; State v. Peterson, 98 Minn. 210, 108 N. W. 6." [1] Appellant complains because the court allowed a drinking glass containing a piece of putty to be admitted in evidence. The Bryants had testified as to the amount of ice that was in each glass containing the liquor when served to them. The purpose of the putty was merely to represent the approximate amount of ice in each glass and illustrate to the jury the liquid contents thereof when the quantity of ice was sub-up and constitute the business, or sometimes an tracted. The Bryants testified clearly as to the amount of ice served with each drink, and the exhibit had slight, if any, probative force, but the jury were entitled to have the benefit of the exhibit for what it was worth. The argument that it was the duty of the court to require the prosecution to have ice brought into the courtroom, cracked there and the precise amount placed in each glass, is not convincing. [2] The county attorney, against the objection of appellant, offered to prove by the sheriff of Yavapai county how much money the county had paid out for detective services in the prosecution of bootleggers and the amount of profit the county had earned since the 1st day of January, 1915, by reason thereof. This is assigned as error, but the court rejected the offer of proof, and very emphatically told the jury to disregard it and not give it any consideration in arriving at their verdict. Conceding that it was error to make such an offer, it was cured by the ruling of the court and its instruction to the jury. [3] One of the most vigorous attacks upon the evidence for the prosecution was that it was largely the product of hired detectives, and, for that reason its weight and credibility was undermined. It occurs to us that this offer made by the prosecution, if permitted, would rather have aided this contention of the defense than otherwise. [4] Over the objection of appellant, the court permitted evidence of other acts than the one alleged in the information, but of a similar nature. According to the testimony for the prosecution, the plan or scheme adopted for the disposal of intoxicating liq While in that case the discussion arose upon an instruction and the observations made were limited to the particular assignment of error then before us, we are con vinced, in the light of the further consideration afforded, that the principle may be extended to the admissibility of the evidence. The most serious objection to be made against this class of evidence is that the jury might thereby find the defendant guilty under the proof of other similar acts when they would not find him guilty of any particular disposition of the liquor. This is to be obviated, however, by the instructions of the court limiting the effect of the evidence and the consideration thereof to the purpose for which it was offered, and on which account it was alone relevant and material. After doing this and further telling the jury that the question as to whether or not the defendant has been guilty of any other offense is not a question for them to determine, the court said: "The question before you is whether or not the defendant committed the particular crime as alleged in this information in this case; and, if you fail to find beyond a reasonable doubt that the defendant committed this particular crime as charged in the information, even though you believe he is guilty of these offenses, then I charge you, you must find him not guilty in this case.' In this we perceive no error. Indeed, the court had previously told the jury that before they may consider the evidence of other sales of intoxicating liquor, they must be sat defendant did sell the particular intoxicating liquor as alleged in the information, which robbed the evidence of other sales of any probative force whatsoever, and obviously is more favorable to defendant than he was entitled. desire for secrecy, and disposed of it surrepti- DENCE-PROVINCE OF JURY. In prosecution for the unlawful sale of whisky the testimony of the detectives to whom it was sold was not unworthy of belief merely be cause of their employment and interest in the case, its weight and credibility being for the jury. 5. INTOXICATING LIQUORS ~233(3)—OFFENSES-EVIDENCE-UNITED STATES LICENSE. In a prosecution for selling whisky in violation of the prohibition amendment, evidence that defendant had been granted a license by the United States to retail intoxicating liquor was instruments, or other means of doing an act, is admissible, as the acquisition or possession of always a relevant inquiry. 6. CRIMINAL LAW 1159(4) - SUFFICIENCY OF EVIDENCE-APPEAL. or bad, the Supreme Court cannot reject the Unless the evidence is inherently improbaevidence for the state and decide the case upon the evidence for the defendant, as the weight and credibility of testimony must be decided by, and any conflict reconciled by, the jury. 7. CRIMINAL LAW 1163(1) — APPEAL — RE [5-7] The prosecuting witness to whom the liquor was sold is a detective who was employed by the county to detect violations of the liquor law. We are asked to scrutinize inconsistencies in the testimony that are inevitable in the record of every case, to destroy the weight and credibility of the testimony on account of the interest and character of the prosecuting witness, and reconcile the conflicts and resolve all doubts in favor of the defendant. This is all matter for argument to a jury, and it was their exclusive province to determine it. They have determined it against the defendant upon substan-ble tial evidence, and there it must end. There is no law forbidding the employment of detectives to aid in the discovery and suppression of crime. Such a method is not inherently bad. Its credibility and weight is therefore for the consideration of the jury. The Cases may be reversed in the Supreme Court trial court is not permitted to tell the jury only where the record affirmatively shows error that such testimony is unworthy of belief, prejudicial to some substantial right of a dethat it should be viewed with suspicion, or that it should be closely scrutinized. Under the Constitution, the trial court is forbidden to comment upon the testimony of witnesses. It is sufficient that the evidence has been considered worthy of belief by the jury. Our duty is limited, then, to ascertaining if there be any substantial evidence in the record to support such a verdict, and we so find. Other assignments are made, but they are not of sufficient moment to require further discussion. Upon the whole case, substantial justice has been done, and, there being no reversible error, the judgment is affirmed. ROSS and CUNNINGHAM, JJ., concur. (19 Ariz. 366) (Cr. 428.) BIRCH v. STATE. (Supreme Court of Arizona. March 5, 1918.) 1. INTOXICATING LIQUORS 198-OFFENSES -PRELIMINARY EXAMINATION. In prosecution for disposing of intoxicating liquor, a preliminary examination before a committing magistrate is unnecessary. 2. CRIMINAL LAW 404(4)-EVIDENCE-DEMONSTRATIVE EVIDENCE-IDENTITY. In a prosecution for the unlawful sale of whisky the admission of the bottle in evidence, after it was definitely traced from the hands of defendant right into the courtroom, was not objectionable on the ground that it had not been properly identified. VERSAL. fendant. Appeal from Superior Court, Yavapai firmed. Robert E. Morrison, of Prescott, for appellant. Wiley E. Jones, Atty. Gen., Geo. T. Harben and R. W. Kramer, Asst. Attys. Gen., and John H. Campbell, of Tucson, for the State. A FRANKLIN, C. J. Appellant was convicted of disposing of intoxicating liquor to one S. E. Terry, and appeals. According to the testimony the defendant conducted a business located on Montezuma street in the city of Prescott. His establishment is a two-story building in which there is a barroom and restaurant on the first floor. Adjoining the restaurant and used in connection therewith are several private rooms or booths. stairway leads from the lower to the upper floor. The upper part of the house consists of rooms, most of which are used for lodging guests, but some of them are set apart for gambling at games with cards. The prosecuting witness, S. E. Terry, and his brother, W. W. Terry, were employed by Yavapai county to obtain evidence of violations of the liquor law. At a time about midnight, either the last hour of the 22d or the first hour of the 23d of May, 1916, it is not exactly clear which, these men purchased a pint bottle of whisky from appellant at his place of business. In prosecution for unlawful sale of whisky, the admission of evidence of other sales of a similar nature to that charged in the information was proper, where the evidence for the [1] Appellant complains of the insufficiency state was to the effect that defendant showed a of the information because it is not shown For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that he was committed to answer for the offense after a preliminary examination before a committing magistrate. We have held that in this class of cases a preliminary examination before a committing magistrate is unnecessary. Mo Yaen v. State, 18 Ariz. 491, 163 Pac. 135, L. R. A. 1917D, 1014. does not procure at expense a particular thing as a means for accomplishing a partic ular purpose without any design to do the act for which such thing is to be used. Like all evidence, its probative value varies as the circumstances of each case are developed. As in the Duff Case just decided, so in [2-4] Objection is made to the introduction this case the testimony of the detectives is of the bottle of whisky in evidence because vigorously assailed. The thread of their it was not properly identified. It would be story, however, runs plainly through the recdifficult to imagine how an exhibit in a case ord. There are softnesses in it here and could be more clearly identified. The bottle there, but in the most solid of rocks little of whisky was definitely traced from the veins of softness are frequently encountered. hands of appellant right into the courtroom. To what extent these little fissures detract It is urged that the court erred in allowing from the weight of solidity of the body is evidence of other sales of a similar nature to for the jury, under the instructions of the the one charged in the information. Appellant court. The witnesses were subjected to a denied ever making any sale of whisky to Ter- most searching cross-examination conducted ry. The evidence for the state is to the ef- with that skill and vigor with which appelfect that the behavior of appellant showed a lant's attorney is so well equipped. Every desire for secrecy. The method adopted by matter favorable to appellant's contentions him for disposing of whisky was surrepti- has been brought out and developed both in tious and by a secret and roundabout way well the trial court and here on appeal. calculated to evade detection. It was urged [6] The character of the witnesses, their persistently and with vigor that the prose-employment, the influences which surroundcuting witnesses were detectives and, by rea-ed them, and their interest in the result of son of their employment and interest in the the prosecution were with clarity and in case, unworthy of belief. detail laid before the triers of fact. Yet, In the case of Cluff v. State, 16 Ariz. 179, 142 Pac. 644, we notwithstanding all this, the jury believed said: the story of the prosecution and discredited that of the defense, and this with the sanction of the trial judge. Unless it is inherently improbable or bad, this court cannot reject the evidence for the state and decide the case upon the evidence for the defendant. There is nothing inherently improbable in the testimony that appellant surreptitiously disposed of a bottle of whisky. The docket of this court shows that it is not an uncommon thing for men to violate the liquor law. It is an oft-repeated speech of this court that the weight and credibility of testimony must be decided and any conflict in the evidence reconciled by the jury. The court is concerned with the admissibility of evidence in order to guard the jury against erroneous persuasions. "Most of the sales testified to in this case were sales made to the prosecuting witness. The appellant denied ever making any sale to him. This being the issue, why was not proof of other sales to the prosecuting witness than the one relied upon relevant, whether supported by his testimony alone or by other witnesses as corroborating evidence of the offense charged? There was no direct testimony of sales by appellant to third parties, except the testimony of the prosecuting witness, and those sales, if believed by the jury to have been made, were relevant as a circumstance tending to show that appellant was in the business of violating the local option law. There is one thing certain from the record, and that is that, if appellant disposed of intoxicating liquors at all, he was doing it secretly and under cover to avoid detection, and, if a plan or scheme of that kind was followed, the evidence of other sales was competent and relevant to corroborate and throw light upon the offense charged, as stated in the instruction." The court in its charge to the jury was careful to limit this character of evidence to the only purpose for which it is admissible. The contention here made has this day been decided in Duff v. State, 171 Pac. 133, to be without merit. The artificial rules of procedure governing the admissibility of evidence, however, are not the ultimate object of judicial investigation. As Mr. Wigmore says, the procedural rules are devised as a mere preliminary aid to the main activity, viz. the persuasion of the jury's mind by safe materials. It is the proof, then, that assumes the important place [5] Objection is made because the state in judicial investigation and relatively the was permitted to show that appellant had most important place. It is upon the proof made application for and been granted that the chief duty of counsel is focussed in a license by the United States to retail in-contentious persuasion-mind to mind, countoxicating liquor. The acquisition or possession of instruments, tools, or other means of doing an act is always a relevant inquiry. It is usually a most significant circumstance. What does one naturally infer when a government license to sell liquor is purchased by another? The natural inference would be that it evidences a design to sell such liquor sel to juror, the state against the defendant each partisan seeking to move the mind of the impartial tribunal. The judgment of a tribunal so constituted to try the fact, being the outgrowth of these conditions and nourished in such an atmosphere, is not, within its peculiar jurisdiction, lightly to be disregarded. FRANKLIN, C. J. Stanley Priestly was adjudged guilty of a misdemeanor, and appeals. He was charged with selling intoxicating liquor to one C. J. Cooper, and asks a reversal of the judgment of conviction mainly upon the ground that he was not accorded a fair and impartial trial in the superior court. serious evil by the people of this state, and they have adopted most drastic measures to suppress it. Those who have any regard for their freedom and reputations must resist the temptation to engage in the traffic. Cases may be reversed in this court only where the record affirmatively shows error prejudicial to some substantial right of a defendant, and there is no such showing in this case. Some assignments of error are made which have been carefully considered, but, in our judgment, they are without merit, and brev-rors and rendered a verdict of guilty against ity forbids any particular discussion. Upon the whole case, the judgment must be affirmed; and it is so ordered. ROSS and CUNNINGHAM, JJ., concur. (19 Ariz. 371) PRIESTLY v. STATE. (Supreme Court of Arizona. (Cr. 436.) DISCRETION 1. JURY 85 IMPARTIALITY discretion of the trial court. 2. CRIMINAL LAW 1152(2) SELECTING JURORS-REVERSIBLE ERROR. Where the exercise of the trial court's discretion in determining the impartiality of jurors is clearly erroneous, the appellate court is bound to interfere. 3. CRIMINAL LAW 11661⁄2 (6)-COMPETENCY OF JURORS-SERVICE IN SAME CASE. In prosecution for an unlawful sale of intoxicating liquor, where the principal defense was the incredibility of the testimony of three detectives, whose testimony was relied on for a conviction and the credibility of defendant's impeaching witness, it was reversible error to compel defendant to select a jury from a panel, including five jurors who had a day or two before rendered a verdict of guilty against another defendant, charged with an illegal sale, in which the defense was the same, and in which the testimony of the same three detectives was relied on for a conviction, in view of Const. art. 2, § 1, providing that a frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government, and section 24, providing that in criminal prosecutions the accused shall have the right to trial by an impartial jury; defendant being forced, having exhausted his peremptory challenges, to accept a trial jury composed of a portion of the jury which sat in the first case. 4. JURY 97(1) — SELECTION DUTY OF COURT. It is the duty of the trial judge to see that an unbiased, unprejudiced, and impartial jury is selected in every case. Appeal from Superior Court, Yavapai County; Frank O. Smith, Judge. Stanley Priestly was adjudged guilty of a misdemeanor and appeals. Reversed, with directions to grant a new trial. Robert E. Morrison and Allen Hill, both of Prescott, for appellant. Wiley E. Jones, Atty. Gen., and Geo. W. Harben and R. W. Kramer, Asst. Attys. Gen., for the State. The panel from which a jury was to be selected to try his case contained five men who, a day or two previously, had sat as ju Ex the defendant in the case of State v. Larry which a conviction was asked at the hands of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1171 Pac. 133. |