Fertig v. State

• Decision Date: 04 June 1913
• Docket Number: Criminal 330
• Citation: 14 Ariz. 540,133 P. 99
• Parties: PAUL FERTIG, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

133 P. 99

14 Ariz. 540

PAUL FERTIG, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 330

Supreme Court of Arizona

June 4, 1913

APPEAL from a judgment of the Superior Court of the County of Yuma. Frank Baxter, Judge. Reversed and remanded.

The facts are stated in the opinion.

Mr Peter T. Robertson and Mr. Clement H. Coleman, for Appellant.

Mr. G P. Bullard, Attorney General, and Mr. Leslie C. Hardy Assistant to the Attorney General, for Respondent.

OPINION

ROSS, J.

Appellant was prosecuted by information charging him with the crime of rape. Upon his arraignment he moved the court to set aside the information on the ground that before the filing thereof the defendant had not been legally committed by a magistrate. The motion to set aside was denied and the trial resulted in the conviction of appellant. In his brief herein he assigns many errors, but we shall consider only the one denying the motion to set aside the information.

An inspection of the records as made up in the preliminary hearing discloses: That appellant was, on December 9, 1912, by a sufficient complaint, charged with the crime of rape. That on the 11th of December, 1912, the defendant being present in person and by counsel, a hearing was had in which witnesses on behalf of the state were sworn and testified. That the defendant offered no testimony. Whereupon the magistrate made the following order: "It appearing to me that the crime of felony has been committed on or about the 7th day of December, 1912, in the county of Yuma, state of Arizona, and that there is sufficient cause to believe that Paul Fertig is guilty thereof, I order that he, the said Paul Fertig, be held to answer the same, and that he be admitted to bail in the sum of one thousand dollars and that he be committed to the sheriff of the county of Yuma, until he give such or be otherwise legally discharged. The appellant contends that this order of commitment is void in that it fails to show the crime for which he was held, or that he was held for any crime.

Section 769, Penal Code of 1901, as amended by section 3, chapter 35, First Session State Legislature, reads as follows: "If, however, it appears from the examination that any public offense which the justice's court has no jurisdiction to try and determine has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate shall enter an order in his docket to the following effect: 'It appearing to me that the crime of (stating generally the nature thereof, and as nearly as may be the time and place where the same was committed) has been committed and that there is sufficient cause to believe A. B. guilty thereof, I order that he be held to answer the same.' When a defendant has been examined and committed as heretofore provided in this section, it shall be the duty of the county attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable, an information charging the defendant with such offense. The information shall be in the name and by the authority of the state of Arizona, and subscribed by the county attorney, and shall be in form like an indictment for the same offense." The first sentence of the above section is the same as section 872 of the Penal Code of California, except that in the latter it is provided that the order may be indorsed on the complaint, instead of being entered in the docket. The last sentence in the above section is in all material ways identical with section 809 of the California Penal Code.

Section 862, Penal Code of 1901, as amended by section 33, chapter 35, Laws of 1912, First Session, is as follows: "The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases: . . . If it be an information: 1. That before the filing thereof the defendant has not been legally committed by a magistrate. . . ." This last section is the same as section 995, California Penal Code.

Prosecutions by information were not permitted under territorial rule, but upon admission to statehood, our constitution having provided for prosecutions by information, the legislature amended our criminal laws in the respects above indicated, and in doing so adopted the California statutes on that subject. The construction placed upon these statutes by the California courts we regard as very persuasive, and, indeed, entitled to great weight. 36 Cyc. 1154, 1155, and 1156.

If the information were based on the complaint filed with the committing magistrate and not on the order of commitment, the action of the trial court in denying motion to set aside was correct. A complaint in the first instance is necessary in order to confer jurisdiction on the magistrate to issue a warrant of arrest. Ex parte Dimmig, 74 Cal. 164, 15 P. 619.

The order of commitment may be for an entirely different offense from that charged in the complaint. The magistrate may hold defendant for "any public offense" of which he has no jurisdiction to try and determine. As was said in People v. Staples, 91 Cal. 23, 27 P. 523 "Even if the offense charged in the information was, as claimed, totally different from that laid in the complaint, it would not affect the sufficiency of the information, since as we have seen, the information does not depend on the complaint, but upon the commitment. . . . It is not claimed, and it cannot be, that the commitment must follow the complaint, for the statute and the decisions of this court are directly to the contrary. It is the duty of the magistrate to hold the defendant to answer for the offense proved, whatever may have been the offense charged." People v. Wheeler, 73 Cal. 255, 14 P. 796. It is clear, therefore, that the prosecuting officer could not look to the complaint in this case and rely solely upon it as to the offense to be charged in the information. This has always been the rule in California, and was first announced in People v. Lee Ah Chuck, 66 Cal. 662, 6 P. 859, in which the court said: "If the depositions are not returned, the district attorney must proceed by information for the offense designated by the magistrate, for the reason that there is not testimony on which he can exercise his judgment." The later decisions of California are to...