Ex Parte Coone

• Decision Date: 28 June 1948
• Docket Number: 5034
• Citation: Ex Parte Coone, 195 P.2d 149, 67 Ariz. 299 (Ariz. 1948)
• Parties: Ex parte COONE
• Court: Arizona Supreme Court

195 P.2d 149

67 Ariz. 299

Ex parte COONE

No. 5034

Supreme Court of Arizona

June 28, 1948

Appeal from Superior Court, Maricopa County; Thomas J. Croaff Judge.

Proceeding in the matter of the application of Wilma F. Coone for a writ of habeas corpus.From the judgment, defendant appeals.

Judgment affirmed.

Nolen L. McLean, of Tucson, for appellant.

Thomas J. Elliott, of Tucson, for appellee.

Udall Justice.Stanford, C. J., and LaPrade, J., concur.

OPINION

Udall Justice.

Wilma F. Coone appeals from an order of the superior court of Maricopa county quashing a writ of habeas corpus and remanding her to the custody of the sheriff for confinement under the commitment issued by the superior court of Pima county.

The appellant was charged by a verified complaint filed in the city court of the city of Tucson with the misdemeanor offense of violating section 66-403, A.C.A.1939, known as the reckless driving statute.Section 16-1101, A.C.A.1939, as amended bychapter 4, Second Special Session of the Seventeenth Legislature, 1946, gives police courts"concurrent jurisdiction with justices of the peace in the precincts where said city or town is established, over all violations of the laws of the state committed within the limits of said city or town."Appellant was duly arraigned, entered a plea of not guilty, and after a trial regularly held was found guilty by the city magistrate and sentenced to pay a fine of sixty dollars and imprisonment in the county jail for a term of fifteen days.

An appeal from this judgment was taken to the superior court of Pima County as authorized by the provisions of article 6, section 6, constitution of Arizona;section 44-2601, A.C.A.1939, andsection 7, chapter 12, charter of the city of Tucson.The city magistrate transmitted to the clerk of the superior court all the papers in the case and a copy of all the proceedings had therein.Section 44-2603, A.C.A.1939.These were filed and docketed by the clerk and thereafter the cause was tried de novo in the superior court on the original verified complaint with the city attorney prosecuting the case.The jury returned a verdict of guilty whereupon the defendant was sentenced by the court to pay a sixty dollar fine and serve thirty days in jail.

Appellant then filed a petition for habeas corpus with this court.Order granting writ was entered requiring the sheriff of Pima county to produce the body of petitioner before the Honorable Thomas J. Croaff, judge of the superior court of Maricopa county.A hearing was had on the return day whereupon the writ was quashed and the petitioner remanded.This appeal followed.

Appellant contends that it was error for the superior court of Maricopa county to quash the writ of habeas corpus.Two novel inter-related questions are raised by the appeal: (1) In the prosecution of an appeal from the city court in a criminal case, is it necessary for the county attorney to file an information before the de novo trial can proceed in the superior court?(2) May the city attorney prosecute a defendant taking such an appeal, or does this duty devolve wholly upon the county attorney?

It is the gist of appellant's argument that her constitutional rights were violated because an unauthorized person, to-wit, the city attorney, prosecuted her in the superior court; and, secondly, that she was prosecuted in a court of record upon a verified complaint, rather than a prosecution by the county attorney upon an information filed directly by the latter.

No pertinent cases are cited by appellant in support of her contentions.Primarily, reliance is had upon article 2, section 30, of the constitution of Arizona: "No person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; * * *" coupled with the statutory provision, section 17-902, A.C.A.1939, that the county attorney shall:

"(1) Attend the superior and other courts within the county, and conduct, on behalf of the state, all prosecutions for public offenses; (Emphasis supplied.)

"(2) * * *

"(3) Draw all indictments and informations, * * *"

It appears to us that appellant fails to differentiate between the original and appellate jurisdiction of the superior courts in criminal matters.Section 44-702, A.C.A.1939, reads: "Prosecution must be by indictment or information-Exceptions.-- Every felony and every misdemeanor over which the superior court has original jurisdiction, must be prosecuted by indictment or information, and every misdemeanor may be prosecuted by indictment or information.This shall not apply * * * or when offenses are tried in justice's, reorder's or police courts."Hence, in criminal cases over which the superior court has original jurisdiction, defendants must necessarily be prosecuted by information or indictment; however, as to its appellate jurisdiction, section 6, article 6, constitution of Arizona, provides: "* * * Said court(the superior court) shall have such appellate jurisdiction in cases arising in justices' and other inferior courts in their respective counties as may be prescribed by law. * * *" And the law governing criminal appeals from inferior courts, section 44-2604, A.C.A.1939, reads: "Every such appeal shall be tried de novo in the superior court, * * *."

Therefore appellate jurisdiction of the superior court on an appeal from the city court in a criminal case is entirely derivative.The very foundation of such jurisdiction is the verified complaint made in the city court.Commonwealth v. Duggan,257 Mass. 465, 154 N.E. 67;State v. Goff,205 N.C. 545, 172 S.E. 407;State v. Smith,306 Mo. 451, 267 S.W. 869;People v. Powers,272 Mich. 303, 261 N.W. 543.

If appellant's contention were correct that an information must be filed by the county attorney before the prosecution in the de novo trial can proceed in the superior court, then it would logically follow that the appellant would have to be rearraigned and a new plea taken.While there are no express statutory enactments governing these matters nor have these precise questions been passed upon in this jurisdiction, yet we do find in the case of Condos v. Superior Court,29 Ariz. 186, 239 P. 1032, that this court fully recognized the plenary authority of the city attorney to control the prosecution in the superior court of an appeal in a criminal case originating in the city court."It has been the custom for many years for all appeals from the police courts of the various cities in Maricopa county to be handled by different city...