Hoy v. State

• Decision Date: 22 May 1939
• Docket Number: Criminal 874
• Citation: 53 Ariz. 440,90 P.2d 623
• Parties: O. J. HOY, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

90 P.2d 623

53 Ariz. 440

O. J. HOY, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 874

Supreme Court of Arizona

May 22, 1939

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.

Mr. W L. Barnum, for Appellant.

Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Respondent.

OPINION

LOCKWOOD, J.

O. J Hoy, hereinafter called defendant, was on the 18th day of November, 1937, arrested by the direction of John W. Corbin then county attorney of Maricopa county, and placed in the county jail. On the afternoon of that day, a complaint was lodged against him before Honorable M. T. PHELPS, a duly elected, qualified and acting judge of the superior court of the state of Arizona, in and for Maricopa county, sitting as a magistrate, charging defendant with having offered a bribe to Corbin, under section 4515, Revised Code of 1928, which reads, so far as material, as follows:

"Public officer; bribery. Every person who gives or offers any bribe to any public officer with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer, is punishable by imprisonment in the state prison not less than one year nor more than fourteen years; and is disqualified from holding any office in this state...."

A preliminary examination was set for December 2d, and defendant was released upon bail. On the date set the defendant appeared before Judge PHELPS, and waived reading of the complaint and announced ready for hearing, whereupon the state introduced evidence and rested. Defendant moved for the proceedings to be dismissed, and such motion being denied, offered no evidence. Judge PHELPS then entered the following order:

"It appearing to me that the crime of Bribery, a felony, has been committed on or about the 1st day of November, 1937, in Maricopa County, Arizona, and there is sufficient cause to believe O. J. Hoy guilty thereof, I order that he be held to answer the same, and that he be admitted to bail in the sum of $3500.00.

"Bail bond presented by O. J. Hoy in the sum of and that he be admitted to bail in the sum of $3500.00. $3500.00, bond approved by the Magistrate and defendant O. J. Hoy released.

"M. T. PHELPS

"Judge of the Superior Court of Maricopa County sitting as a Magistrate."

Thereafter the county attorney filed an information, the material portion of which reads as follows:

"O. J. Hoy is accused this 29th day of December, 1937, by the County Attorney of Maricopa County, State of Arizona, by this information, of the crime of Bribery, a felony, committed as follows, to-wit:

"The said O. J. Hoy, on or about the 1st day of November, in the year 1937, and before the filing of this information, at and in the County of Maricopa, in the State of Arizona, did then and there, wilfully, unlawfully, feloniously and corruptly offer a bribe, to-wit, the sum of Four Hundred Dollars in lawful money of the United States of America, to one John W. Corbin, who as said O. J. Hoy then well knew, was then and there the duly chosen, qualified and acting County Attorney of said Maricopa County, with the corrupt intent on the part of him, the said O. J. Hoy, then and there and thereby, wilfully, unlawfully, feloniously and corruptly to influence said John W. Corbin in respect to his acts, decisions, opinions, and proceedings as such County Attorney, that is to say in respect to whether he, the said County Attorney, acting in his official capacity as such, would bring about the arrest and prosecution of said O. J. Hoy for the crimes of violating sections 4671 and 4672 of the Revised Code of Arizona, 1928, by wilfully and unlawfully opening, carrying on, and conducting in said Maricopa County certain unlawful games in violationg of said code section 4672, and by wilfully and unlawfully permitting unlawful games to be played and conducted in a gambling house to be maintained and operated by said O. J. Hoy as manager thereof in said Maricopa County, in violationg of said code section 4672, and with the corrupt intent on the part of him, the said O. J. Hoy, then and there and by means of said bribe, wilfully, unlawfully, feloniously, and corruptly to influence said John W. Corbin as such County Attorney to refrain unlawfully and corruptly from causing the arrest and prosecution of said O. J. Hoy for said crimes of so violating said code sections 4671 and 4672, and from in any other manner interfering with such violations by the said O. J. Hoy of said code section; it being the fact that said O. J. Hoy was then so violating and intending in the future to so violate said code section;..."

Upon the arraignment of the defendant, he moved to set aside the information on two grounds, the first being that section 4515, supra, was unconstitutional, in that it was not legally adopted; and the second, that he had not been legally held to answer by a magistrate. These motions were overruled, and defendant then demurred to the information on grounds which we shall consider later. The demurrer being overruled, he entered a plea of not guilty, and the case came on for trial on the 7th day of April, 1938, before the Honorable HOWARD C. SPEAKMAN, with a jury, which jury on the 12th day of April returned a verdict of guilty of bribery, as charged in the information. The motion for new trial being overruled sentence was pronounced, and the case is before us on this appeal.

There are some nineteen assignments of error, but we think they should be considered upon the basis of the legal questions raised thereby, and we shall so review them.

The first question is whether defendant received a preliminary examination as required by section 30 of article 2, of the Constitution of Arizona, which reads as follows:

"No person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; no person shall be prosecuted for felony by information without having had a preliminary examination before a magistrate or having waived such preliminary examination."

It is contended that Judge PHELPS, being a judge of the superior court of Maricopa county, to which court defendant was held to answer, had no jurisdiction to conduct a preliminary examination. The argument in support thereof may be summarized as follows: A preliminary examination must be held before a magistrate. Commonly a "magistrate" means a justice of the peace or other similar officer, and cannot be taken to include a judge of the court to which a defendant may be held to answer. Judge PHELPS, being a judge of such a court, was not authorized to conduct the preliminary examination, and the defendant was, therefore, not legally held to answer. It is true there are a number of decisions holding, in substance, that the ordinary meaning of the word "magistrate" is limited to a justice of the peace, or a similar inferior officer, and there are also cases which hold that it is not proper for a judge of the court in which a defendant is to be tried for a felony to hold him to answer to such court in a preliminary examination. State v. Solomon, 158 Wis. 146, 147 N.W. 640, 148 N.W. 1095, Ann. Cas. 1916E 309; Kurtz v. State, 22 Fla. 36, 1 Am. St. Rep. 173.

Our constitution merely provides that the preliminary examination required by its terms shall be held before a "magistrate," without defining the term. If our legislature had not seen fit to determine its meaning, the argument in the cases above cited might well be persuasive. However, the legislature, in chapter 115, Revised Code of 1928, provided very comprehensively and explicitly for the proceedings to be followed in the determination of the guilt or innocence of one accused of a crime. The first section of this chapter reads as follows:

"4927. Magistrate defined and designated. A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense. The chief justice and the judges of the supreme court, the judges of the superior court, justices of the peace and police magistrates in cities and towns are magistrates."

The proceedings in regard to preliminary examination are set forth in chapter 116, Revised Code of 1928, in much detail. In every portion of that chapter describing any action which is to be taken at a preliminary examination on a charge of felony, the person who is to conduct the examination is described as a "magistrate." We think it would be impossible for the statute to have made it plainer that a judge of the superior court has jurisdiction to conduct a preliminary examination. It is well known that our criminal code is taken to a great extent from that of California. In that state, the law provided, as in Arizona, that judges of the superior courts were magistrates. In the case of People v. Swain, 5 Cal.App. 421, 90 P. 720, 722, the court said:

"It is readily to be observed from the foregoing provisions of our Penal Code that proceedings in criminal cases before a magistrate and those before a justice of the peace are entirely different and distinct, and are designed to accomplish widely different purposes. The proceeding before a justice of the peace acting in his ex officio capacity of magistrate is one of the two methods authorized under our system for the inauguration of a prosecution upon ordinary felony charges. The proceeding authorized by section 1426 of the Code involves a trial, of which the justice of the peace as such has jurisdiction under the law, and is, of course, analogous to a trial for a felony in the superior court. Under the law a justice of the peace, when exercising the powers of a magistrate, has equal authority as such with the...