Erdman v. Superior Court of Maricopa County
Decision Date | 24 November 1967 |
Docket Number | No. 9076-PR,9076-PR |
Parties | Hugo A. ERDMAN, Jr., Petitioner, v. The SUPERIOR COURT OF MARICOPA COUNTY, Arizona, the Honorable Fred J. Hyder, Presiding Judge, and the Honorable Yale McFate, Respondents, City of Phoenix, a municipal corporation, Real Party in Interest. |
Court | Arizona Supreme Court |
Max M. Klass, Phoenix, for petitioner.
Robert J. Backstein, City Atty., by, Alan K. Polley, Asst. City Atty., Phoenix, for respondents and real party in interest.
Petitioner-defendant, Hugo Erdman, Jr., hereinafter designated defendant, was, on the 23rd day of September 1965, arrested without a warrant, and taken into custody by a police officer of the City of Phoenix, and immediately booked in the city jail for acts committed in the presence of the officer. On the following day a complaint was filed before a city magistrate by a desk sergeant who was the Police Department's liaison officer. While the complaint was not signed by the arresting officer his name was endorsed thereon. On October 20, 1965, defendant entered a plea of 'not guilty' to the charge, at which time he made no objection to jurisdiction of the court to proceed against him on the complaint. He was tried and found guilty, and appealed to the Superior Court. The court had many trial settings which were vacated, and, finally, on October 26, 1966, defendant filed a written motion to dismiss on the ground that the court had acquired no jurisdiction because of non-compliance with Criminal Rule 1, and A.R.S. § 13--1418. This motion to dismiss was denied by the Superior Court on January 10, 1967. Thereafter, defendant filed with the Court of Appeals, Division One, a petiton for writ of prohibition requesting that the Superior Court of Maricopa County be prohibited from proceeding with the trial against him. The writ of prohibition as prayed for was issued by the Court of Appeals on June 21, 1967, 6 Ariz.App. 3, 429 P.2d 495. The City of Phoenix filed a petition for review of the decision of the court of appeals, which was granted by this court. The question involved is whether the procedure followed conferred jurisdiction on the magistrate.
It is admitted that the arrest was made without a warrant, and that the officer signing the complaint did not have actual knowledge of the facts stated therein. It is the contention of defendant that under these circumstances it was the duty of the magistrate to have examined the officer in regard to the facts set forth in the complaint, and that 'his failure to do so vitiates' the proceeding under Criminal Rule 1, 17 A.R.S., and A.R.S. § 13--1418. 1 This court, in Turley v. State, 48 Ariz. 61, 59 P.2d 312, passed upon the question of the necessity of a complaint's being signed by a person having actual knowledge of the facts. In this decision we said:
'It will be observed that this complaint is definite and specific in its allegations of the essential elements of the crime of assault with intent to commit murder, and nowhere upon its face does there appear even a suggestion that its signer did not know personally the facts which he swore to be true. * * *
* * *
48 Ariz. at 67, et seq., 59 P.2d at 315, et seq.
In State v. Currier, 86 Ariz. 394, 347 P.2d 29, we stated:
'We approved the 'basic philosophy' of the Turley case in State v. Colvin, 81 Ariz. 388, 307 P.2d 98.
86 Ariz. at 397, 399, 347 P.2d at 31, 33.
The complaint in the instant case was sworn to and signed by Sergeant William Kirsop before City Magistrate E. K. Mangum. William Nickles and William Stull were listed as witnesses. The complaint, omitting the formal parts, charged that the defendant:
'* * * (O)n or about the 23rd day of SEPTEMBER, 1965, in a public place in the City of Phoenix, to wit: CORONADO PARK, did wilfully and unlawfully commit (a) grossly indecent act which outrages decency and is injurious to or tends to corrupt morals, in violation of Chapter 27, Section 37, of the Code of the City of Phoenix, 1962.'
It will be noted that the complaint is purportedly based upon actual knowledge of the complainant and therefore under the rule as set forth in State v. Currier, supra, the magistrate was not required to question the complainant as to the source of his information. It is understandable why an officer on duty when defendant was brought in was willing to sign such a complaint. He had every reason to believe that defendant would not have been arrested without a warrant unless an act had been committed in the presence of the officer. The object of a complaint is to inform a defendant in language definite and specific of the essential elements of the crime for which he is charged. Turley v. State, supra. The complaint in the instant case met these requirements. The general rule is stated in 22 C.J.S. Criminal Law, § 309 p. 804, as follows:
'Where a complaint states positively and unconditionally that the facts related therein are within the personal knowledge of complainant, it is sufficient although complainant has, in fact, no first hand knowledge, particularly where the statute does not require first hand knowledge of the person making the complaint; and it is incompetent for accused on arraignment to impeach the complaint by showing a lack of knowledge on the part of complainant witness.' 22 C.J.S. at p. 804.
Other jurisdictions have held that a complaint is sufficient if it is positive and in language that shows a probable cause, even though signed by an affiant where it is later shown the complainant did not have actual knowledge of the information set forth therein. In the case of Vahlberg v. State, 96 Okl.Cr. 102, 249 P.2d 736, cert. denied 345 U.S. 961, 73 S.Ct. 936, 97 L.Ed. 1381 the Supreme Court of Oklahoma dealt with this contention that a...
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