Perez v. Territory of Arizona

CUNNINGHAM, J. The defendant was indicted for the killing of Felieio Chacon, on August 14, 1910, at or near [164] Congress Junction, Yavapai County, Arizona, to which indictment he pleaded not guilty. A trial was had, and the jury returned a verdict of guilty of murder in the first degree and fixed the death penalty. The judgment of the court followed the verdict, from which judgment, and from an order denying the defendant’s motion in arrest of judgment, and from an order denying the defendant’s motion for a new trial, he prosecutes this appeal. The defendant assigns a number of errors, which we shall consider, but not in the order of their assignment. Defendant’s seventh assignment of error is based upon the order overruling his motion in arrest of judgment. This motion alleges irregularities in the drawing and impaneling of the grand jury which returned the indictment upon which the trial was had, contending that such irregularities render the trial and conviction upon an indictment by said grand jury wholly void, and allege that the trial jury which convicted the defendant was illegally drawn and impaneled. The record filed in this court by the defendant fails to incorporate the minutes of the drawing of the grand jury, but the alleged record is presented in the form of appellant’s motion in arrest of judgment, supported by affidavits. The record discloses no challenge to the panel of the grand jury, nor any motion to quash the indictment by reason of any irregularities committed in the organization of the grand jury. A person held “to answer to a charge for a public offense can take advantage of any objection to the panel or to an individual grand juror in no other mode than by challenge.” See. 797, Pen. Code Ariz., 1901. When, by statute, a particular way is prescribed to raise an objection, and the party neglects to pursue the statutory way, and the objection is one which could have been cured at the time, if attention had been called to it, he must be adjudged to have waived such objection. He must assert his privilege in the proper way and at the proper time, or he is deemed to have waived it. Montgomery v. State, 3 Kan. 263; In re Wilson, 140 U. S. 575, 35 L. Ed. 513, 11 Sup. Ct. Rep. 870; Thomas v. Territory, 11 Ariz. 184, 89 Pac. 591. The appellant is likewise deemed to have waived the objections raised to the impaneling of the trial jury, under the authorities cited above. [165] A number of assignments are based upon alleged error committed by the court in its rulings upon the admission and exclusion of evidence upon the trial of the case. The correctness of the reporter’s transcript of the testimony is not certified to by the trial judge, and no bill of exceptions, other than the reporter’s transcript, appears in the record. This court held, in the case of Chavez v. Territory, ante, p. 107, 125 Pac. 483, recently decided, that under the statutes now in force the rulings of the trial court with respect to the introduction or exclusion of evidence cannot be reviewed upon appeal to this court, in the absence of a bill of exceptions, unless the trial judge certifies to the correctness of the reporter’s transcript. Romero v. Territory, 12 Ariz. 10, 95 Pac. 101; Molina v. Territory, 12 Ariz. 14, 95 Pac. 102. This court is therefore precluded from considering the assignments of error alleged by appellant based upon the introduction and exclusion of testimony. The name of the deceased, as laid in the indictment, is Felieio Chacon, and some evidence was produced on the trial tending to prove that the true name of the person killed by the defendant on the fourteenth day of August, 1910, was Feliciano Chacon, and upon this state of the ease, at the close of the testimony for the prosecution, the appellant moved the court to instruct the jury to acquit on the grounds of a variance, which motion was denied, and such ruling is assigned as error. We think the variance, if any, immaterial. Felieio and Feliciano evidently have the same derivation, the one a contraction of the other. It was not a misnomer to designate the deceased as Felieio Chacon, when his correct name was Feliciano Chacon; and the jury, under the evidence in the ease, when the question contested was the name, were justified in considering the two names one and the same. Alsup v. State, 36 Tex. Cr. 535, 38 S. W. 174; Walter v. State, 105 Ind. 589, 5 N. B. 735; State v. Watson, 30 Kan. 281, 1 Pac. 770. “Whether there is a material variance between the proof and the allegations of the indictment as to the names of persons, or any other facts, is a question for the jury. ’ ’ 12 Cyc. 590. The question was fairly and properly submitted to the jury, and the jury found the fact against appellant’s contention. [166] We think no error was committed by the court in denying the motion and submitting the question to the jury. We have carefully examined the entire record presented. We think the instructions of the court fairly placed the law of the case before the jury, and we think the substantial evidence supports the verdict. While we regret the necessity, we must .affirm the judgment of the trial court and order that the sentence he carried out in accordance with the law in such cases provided. FRANKLIN, C. J., and DUFFY, J., concur. N. B.—ROSS, J., being disqualified and announcing his disqualification in open court, the remaining judges, under section 3 of article 6 of the constitution, called in Hon. FRANK J. DUFFY, Judge of the superior court of the state of Arizona, in and for the county of Santa Cruz, to sit with them in the hearing of this ease. NOTE.—As to waiver of irregularity in the formation of a grand jury, see note in 4 Ann. Cas. 226. As to what names are idem sonans, see note in 100 Am. St. Rep. 322.