Drury v. Burr
| Decision Date | 12 April 1971 |
| Docket Number | No. 10265--PR,10265--PR |
| Citation | 483 P.2d 539,107 Ariz. 124 |
| Parties | James E. DRURY, Appellant and Cross-Appellee, v. Waldon V. BURR, Sheriff of Pima County, State of Arizona, Appellee and Cross-Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Phoenix, Rose Silver, Pima County Atty. by William F. McDonald, Deputy County Atty., Tucson, for appellee and cross-appellant. Howard A. Kashman, Pima County Public Defender, Tucson, for appellant and cross-appellee.
This appeal is from a denial of an application for writ of habeas corpus brought in the Superior Court of Pima County, Arizona to test the sufficiency of the evidence given at a preliminary hearing in which James E. Drury was held to answer on an open charge of murder. Drury appealed to the Court of Appeals, Division Two, from the ruling of the Superior Court. While the Court of Appeals does not have original jurisdiction in habeas corpus, it has appellate jurisdiction over causes originating in the Superior Court, A.R.S. § 12--120.21. From a decision favorable to Drury, the State seeks this review. Opinion of the Court of Appeals, 13 Ariz.App. 164, 474 P.2d 1016, vacated. Judgment of the Superior Court affirmed.
In Arizona, if on a hearing it appears to a magistrate that a public offense has been committed over which the magistrate has no jurisdiction to try and determine, and if it further appears that there is probable cause to believe that the accused is guilty of the offense, the magistrate shall hold him to answer to the Superior Court. Rules of Criminal Procedure, Rule 33, 17 A.R.S.
We have said that a finding of probable cause presupposes that a prima facie case has been established and that a mere suspicion that an accused is guilty of the offense of which he is charged is not sufficient. State v. Abbott, 103 Ariz. 336, 442 P.2d 80. However, the evidence at a preliminary hearing does not have to be of such a nature as would be sufficient to convict an accused at his trial. State v. Marlin, 5 Ariz.App. 524, 428 P.2d 699. Where there is more than one inference equally reasonable then probable cause does not exist, but where one inference is more reasonable than another and is on the side of guilt, then probable cause may be said to exist. Hafenstein v. Burr, 92 Ariz. 321, 376 P.2d 782. It is not, therefore, necessary that the evidence at a preliminary hearing establish the guilt of the accused beyond a reasonable doubt. Reasonable or probable cause exists if the proof is sufficient to cause a person of ordinary caution or prudence conscientiously to entertain a reasonable suspicion that a public offense has been committed in which the accused participated. People v. Beghtel, 164 Cal.App.2d 294, 330 P.2d 444.
The evidence in this case introduced at the preliminary hearing established that on the tenth day of May 1970 defendant, James E. Drury, and one Hoskins Foster engaged in an altercation. The next day Foster was found dead on the desert outside of Tucson, zippered into a sleeping bag. The deceased had been repeatedly struck with a strick, inflicting multiple injuries. Among these were multiple fractures of both the upper and lower jaws. The cause of death was determined as suffocation due to vomiting the contents of the stomach into the lungs. The gastric fluids passed out of the stomach, but, due to the fracture of the jaw, the deceased was unable to open his month or swallow, so that the fluids went up to the nose and then back down the bronchial tract and into the lungs.
Dr. Edward A. Brucker, the medical examiner who performed an autopsy for the State, testified that there were two reasons why the deceased would vomit--one, that people with fractured bones frequently vomit, and, two, that deceased's blood alcohol was .27 per 100 miligrams, which made it just as possible that the deceased would vomit because of his intoxicated state as from the trauma. From this testimony, d...
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State v. Sisco
...one inference is more reasonable than another and is on the side of guilt, then probable cause may be said to exist.” 107 Ariz. 124, 125, 483 P.2d 539, 540 (1971).1 Similarly, in Maricopa County Juvenile Action No. J–84984, the court held that “probable cause requires a reasonably prudent p......
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State v. Drury, 2599
...a petition for review, set aside the decision of the Court of Appeals, and affirmed the order of the Superior Court. Drury v. Burr, 107 Ariz. 124, 484 P.2d 539 (1971). The defendant then sought relief in the federal courts. The District Court denied relief, and the Ninth Circuit Court of Ap......
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...v. Miller, 44 Wyo. 114, 8 P.2d 825 (1932); McIntosh v. Wales, 21 Wyo. 397, 413, 134 P. 274, 278 (1913). See also, Drury v. Burr, 107 Ariz. 124, 483 P.2d 539 (1971) where the term "reasonable suspicion" in lieu of "reasonable belief" was used. In People v. Uhlemann, 108 Cal.Rptr. 657, 9 Cal.......
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