In re Application of Marshall, Civil 3116

• Decision Date: 30 June 1931
• Docket Number: Civil 3116
• Citation: 300 P. 1011,38 Ariz. 424
• Parties: In the Matter of the Application of LOUISE MARSHALL for a Writ of Habeas Corpus
• Court: Arizona Supreme Court

300 P. 1011

38 Ariz. 424

In the Matter of the Application of LOUISE MARSHALL for a Writ of Habeas Corpus

Civil No. 3116

Supreme Court of Arizona

June 30, 1931

Original application for Writ of Habeas Corpus to fix bail.

Messrs Knapp & Boyle, Mr. B. G. Thompson, Messrs. Kingan & Darnell and Mr. Frederic G. Nave, for Petitioner.

Mr. Wm G. Hall, County Attorney, and Mr. Clarence E. Houston and Mr Carlos G. Robles, Deputy County Attorneys, for the State.

OPINION

ROSS, J.

This is an original application for a writ of habeas corpus made to obtain bail.

Upon a complaint charging the petitioner with having murdered one Thomas K. Marshall, the petitioner was on May 27, 1931, by the Honorable EDWIN F. JONES, Justice of the Peace of Tucson precinct, Pima county, acting as a committing magistrate, given a preliminary hearing and bound over to the superior court of Pima county to answer said charge, the magistrate admitting her to bail in the sum of $20,000. On May 28th a bail bond, with two sureties, conditioned as provided by statute, was presented to the magistrate and by him approved. On the same day the county attorney of Pima county filed an information in the superior court of said county against the petitioner charging her with the crime of murder. Subsequent to filing the information, but on the same day, the county attorney filed a motion for an order to cancel the bail bond and to remand defendant to the custody of the sheriff. June 2d the petitioner was arraigned and entered a plea of not guilty. On that day the Honorable FRED W. FICKETT, Judge of the superior court of Pima county, feeling, as we understand it, that the bail was insufficient because the wives of the sureties had not signed, ordered petitioner to make and execute a new bond in the sum of $20,000. Such new bond with sureties was on that day duly approved by said judge and filed.

On the 3d of June, against the protest of the petitioner that the court had no jurisdiction to cancel the bond and re-incarcerate her, because the order of the committing magistrate committing the defendant was res judicata, and because the motion did not state facts sufficient to warrant the canceling of said bond and the remanding of petitioner to the custody of the sheriff, the judge of the superior court aforesaid proceeded to take evidence in support of the motion. The evidence so heard and introduced consisted of the transcript of the testimony taken before the Honorable EDWIN F. JONES, Justice of the Peace of Tucson precinct, upon the preliminary hearing, and at the conclusion thereof, with no other evidence, the trial court made an order canceling, revoking and annulling petitioner's bail bond and directing the issuance of a bench warrant "remanding defendant to the custody of the sheriff." The sheriff's return shows that he has the petitioner in his custody under and by virtue of a bench warrant issued out of the superior court of Pima county on June 3, 1931.

The petitioner claims that the order of the committing magistrate, made at the preliminary hearing, granting bail, was res judicata as to the state, and that the order of the judge of the superior court, made subsequent to the filing of the information, directing that she be imprisoned pending the trial, was without authority of law and void. She also claims that the transcript of the testimony taken at the preliminary trial and considered by the said judge of the superior court upon the motion to cancel bond and recommit fails to show that the proof was evident or the presumption great, and that therefore she was entitled to bail.

Succinctly, the question is: Can the superior court, or the judge thereof, under the law of this state after an information has been filed against a party bound over to that court and left at large on bail, examine the testimony taken at the preliminary hearing, set aside the committing magistrate's conclusion on the right to bail, and thereupon order the accused committed to jail without bond.

Before trying to answer this question, we state that the settled rule in this jurisdiction, by the Constitution, the statutes and the decisions, is that all persons accused of crime are before conviction as a matter of right entitled to have their liberty on furnishing good and sufficient bail, except in capital cases where the proof is evident or the presumption great. Matter of Application of Haigler, 15 Ariz. 150, 137 P. 423. The charge in this case is capital, since the punishment for murder may be death. Under our criminal laws one may not be charged by information with the commission of a felony until after he is given a preliminary hearing before one of the following officers, to wit: A judge of the Supreme or a superior court, or a justice of the peace, or a police judge of an incorporated city or town acting as a magistrate. Section 4927, Rev. Code 1928. It is said that the purpose of a preliminary hearing is threefold:

"(1) To inquire concerning the commission of crime and the connection of accused with it, in order that he may be informed of the nature and character of the crime charged against him, and, if there is probable cause for believing him guilty, that the state may take the necessary steps to bring him to trial; (2) to preserve the evidence and keep the witnesses within the control of the state; and (3) to determine the amount of bail." 16 C.J. 313, § 556.

While the magistrate's powers are judicial in their nature, the preliminary hearing is not a trial. Such hearing is only had in cases over which the magistrate has no jurisdiction. The defendant is not put in jeopardy. If he is discharged by one committing magistrate, he may be re-arrested and his case re-examined by the same or another magistrate. If he is held over upon a preliminary hearing, the policy of the law is against his being re-arrested and re-examined for the same offense.

The lawmakers were very careful in prescribing the steps to be taken against one charged with crime, zealous in guarding his personal liberty by providing for the allowance of bail as a matter of course in all cases not capital, and in capital cases where the proof is not evident or the presumption great. When the offense is capital, it is explicit in the law that it is the duty of the committing magistrate in the first place to determine whether the evidence of guilt of the highest offense is of a character justifying the allowance of bail or requiring the accused's committal without bail. If the magistrate decides that the offense is bailable, it is the contention of the petitioner that such decision fixes the status of the offense and herself as to the right to bail throughout, until conviction, whatever the facts may be. This contention is based upon section 5000 of the Revised Code, which provides that, if a defendant, who has been admitted to bail before indictment or information, fails to give bail in an increased amount when ordered by the court, he may be committed to custody, and section 5172, which provides that he may be committed to custody by the court in the following cases: (1) When he has forfeited his bail; (2) when the bail becomes insufficient by reason of the death of a surety or sureties, or their removal from the state; or (3) "upon an indictment or information being found for felony, and the defendant is on insufficient bail, in which case the order [for his rearrest] shall specify the increased amount."

It is said these provisions of the statute clearly indicate the legislative intent to limit the power of the court to which a defendant is bound over to the duty of seeing that the bail is kept sufficient by increasing it in amount and in seeing that the sureties are responsible and adequate.

There is in the law no express provision giving the superior court, or the judge thereof, the power or right to commit a defendant without bail after indictment or information when he has been held over by the committing magistrate on bail. If the court, or judge, may disregard the order of the committing magistrate allowing bail and commit the defendant to custody, the law is silent as to the circumstances under which such power may be exercised. Can the judge, as he did in this case, act upon the identical evidence the committing magistrate did and substitute his judgment, as to whether the offense is bailable, for the judgment of the magistrate, and commit the defendant to the custody of the sheriff when the magistrate had accepted bail, or must he take additional evidence, or may he on his own motion, and without evidence, arbitrarily order the defendant committed to the sheriff's custody? If the superior court, or judge thereof, may overturn the order of the committing magistrate allowing bail in a capital case when the latter is a justice of the peace, he may do so in a case wherein the chief justice or one of the judges of the Supreme Court or where he or any other superior court judge may have held the preliminary hearing and admitted the accused to bail. The law does not seem to have provided the superior court or a judge thereof with power to overturn the magistrate's action in allowing bail.

It has, however, vested the court or judge with power, upon an application for a writ of habeas corpus, to grant bail in capital cases where the proof is not evident or the presumption great, notwithstanding the magistrate may have denied bail. In other words, upon an application before the Supreme Court or a superior court or any judge of such courts showing that he is imprisoned or detained in custody on any criminal charge for want of bail, a person is entitled to a wirt of habeas corpus for the purpose of giving bail. Sections 5250 and 5262, Rev. Code 1928. In such a case it is made the imperative duty of ...