Paxton v. Walters, 5491

• Decision Date: 21 May 1951
• Docket Number: No. 5491,5491
• Citation: 231 P.2d 458,72 Ariz. 120
• Parties: PAXTON v. WALTERS.
• Court: Arizona Supreme Court

Page 458

231 P.2d 458

72 Ariz. 120

PAXTON v. WALTERS.

No. 5491.

Supreme Court of Arizona.

May 21, 1951.

Marshall W. Haislip, of Phoenix, for appellant.

Fred O. Wilson, Atty. Gen., Phil J. Munch, Asst. Atty. Gen., for respondent-appellee.

PHELPS, Justice.

This is an appeal from an order of the superior court of Pinal County denying the discharge of appellant James P. Paxton on a writ of habeas corpus and remanding him to the custody of the warden of the state prison at Florence.

The facts are that on November 24th, 1950, appellant entered a plea of guilty in the superior court of Yavapai County to a purported charge of perjury and was thereupon sentenced by said court to serve a term of not less than one nor more than three years therefor in the state penitentiary.

Appellant was not represented by counsel either before the committing magistrate or the superior court and according to the records before us it appears that not more than 30 minutes elapsed between the time of filing the complaint in the justice court and the pronouncement of judgment and sentence upon appellant in the superior court.

Thereafter on March 10, 1951, an application was made to this court on behalf of appellant for a writ of habeas corpus upon the ground that the information in the case did not state a public offense and that the superior court of Yavapai County was therefore without jurisdiction to pronounce judgment and sentence upon appellant and that such judgment and sentence was null and void.

The writ was issued on the 20th day of March, 1951, and made returnable before the Honorable W. C. Truman, Judge of the Superior Court of Pinal County who on April 5, 1951, quashed said writ and remanded appellant to custody.

Appellant has presented three separate assignments of error all of which are directed to the insufficiency of the information to state an offense against the State. We will therefore consider them together. It will be necessary to examine the information in the light of our statutes relating to pleading in criminal cases and the decisions of the courts relative thereto in order to reach a conclusion as to the soundness of appellant's contentions.

Section 44-702, A.C.A.1939, provides that: 'Every felony and every misdemeanor over which the superior court has original jurisdiction, must be prosecuted by indictment or information, * * *'.

Section 44-706 provides in so far as here pertinent that the information must contain: '* * * a statement of the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended, * * *.'

Section 44-709 provides that the 'information is sufficient, if it can be understood therefrom: * * *.

'That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, and as to enable the court to pronounce judgment upon a conviction, according to the right of the case.'

Section 44-710 thereof provides that the '* * * information must be direct and certain as to the party charged, the offense charged, and the particular circumstances of the offense when they are necessary to constitute a complete offense.'

Section 44-711 thereof provides:

'(1) The indictment or information may charge, and is valid and sufficient if it charges, the offense for which the defendant is being prosecuted in one or more of the following ways:

'(a) By using the name given to the offense by the common law or by a statute.

'(b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged.

'(2) The indictment or information may refer to a section or subsection of any statute creating the offense charged therein, and in determining the validity or sufficiency of such indictment or information regard shall be had to such reference.'

Section 43-4201 defines perjury in so far as material here as follows: 'Any person who, having taken an oath that he will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any case in which an oath may by law be administered, wilfully and contrary to such oath, states as true any material matter which he knows to be false; * * * is guilty of perjury, * * *.'

Section 44-742 provides: 'No indictment or information for perjury, or for subornation of, solicitation of, conspiracy or attempt to commit perjury shall be invalid or insufficient for the reason that it does not set forth any part of the records or proceedings with which the oath was connected, or the commission or authority of the court or other official before whom the perjury was committed or was to have been committed, or the form of the oath or affirmation, or the manner of administering the same.'

Section 44-753 of the...