Pray v. State

• Decision Date: 22 October 1940
• Docket Number: Criminal 985
• Citation: 106 P.2d 500,56 Ariz. 171
• Parties: PEARL PRAY, Appellant, v. THE STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

106 P.2d 500

56 Ariz. 171

PEARL PRAY, Appellant, v. THE STATE OF ARIZONA, Respondent

Criminal No. 985

Supreme Court of Arizona

October 22, 1940

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

Mr Robert R. Weaver, for Appellant.

Mr. Joe Conway, Attorney General, Mr. Richard F. Harless, County Attorney, and Mr. Darrell R. Parker, Deputy County Attorney for Respondent.

OPINION

ROSS, C.J.

Pearl Pray was convicted in the Superior Court of Maricopa County of the crime of perjury and she questions the validity of such conviction in two ways, to wit: She has appealed from the judgment of conviction, and she also asks this court to issue a writ of habeas corpus discharging her from imprisonment on the ground that her confinement and detention are unlawful. The same ground for contention, that her conviction was against and without law, is made in her petition for writ of habeas corpus and in her assignments on appeal and, since the appeal brings the whole record here, we will dispose of the case in that proceeding.

The particular point raised, and common to both proceedings, is that the provisions of the statute regulating the procedure when a demurrer to an information has been allowed were not followed, and it is contended that a conviction on an information filed without observing the terms of the statute is void.

The facts appear to be as follows: The defendant was arrested on a charge of perjury on April 22, 1939, taken before the justice of the peace of East Phoenix Precinct and, after a hearing, bound over. She was informed against on May 8, 1939 in the superior court, the case being given docket No. 15266. On June 1st the court sustained a demurrer to the information and ordered that a new information be filed within fifteen days. On June 22d a new information was filed and on July 1st a demurrer to it was sustained and a new information ordered to be filed.

The county attorney thereafter, on July 13th, filed a complaint for the same offense with the justice of the peace of West Phoenix Precinct, upon which she was given a hearing and bound over, and on July 14th the county attorney filed a new information against defendant and the case was docketed as No. 15360. This information was demurred to and on September 11th the demurrer was sustained and the following order entered in the court's minutes:

"This court is of the opinion that the information herein does not allege a crime and that the defect can be corrected by filing a new information, therefore, the county attorney is ordered and directed to file a new information within fifteen days."

This direction of the court was followed and the defendant was tried on the information filed September 22d in pursuance of the court's order. Thereafter defendant filed her motion to set aside this information, giving as reasons therefor (1) that the same matter was pending in case No. 15266; (2) that before the filing of the information defendant was not legally committed by a magistrate. She also filed a demurrer to the information and pleaded in abatement the pendency of another action, to wit, No. 15266, and that the information was not filed within fifteen days after demurrer was sustained. The motion to set aside, the demurrer and the plea in abatement were overruled and defendant contends that the court's rulings were erroneous.

The statute gives two grounds for setting aside an information and provides if these are not made in proper order defendant is precluded from afterwards making such objections. Sec. 5005, Rev. Code 1928. The two grounds specified are (a) that before the filing of the information the defendant had not been legally committed and (b) that the information is not subscribed by the county attorney of the county.

The record in No. 15360, the case now on appeal, does not show that defendant made any objection to the filing of the various new informations in case No. 15266, nor does the petition for the writ of habeas corpus give us any enlightenment on that point. So far as it appears, the defendant raised no objections to the procedure followed in filing next informations until the information in the present case (15360) was filed. Whether, then, such procedure was in conformity with the statute or not can make no difference. If no objections were filed by defendant, she must be held to have waived any procedural departure from the statute. Sec. 5005, supra.

We next examine the grounds urged in the motion to set aside the information upon which defendant was tried. The first is another action pending. If that were true as a matter of fact, it would be no ground to set aside the information. California prescribes the same grounds for setting aside an information as Arizona does. Sec. 995, Cal. Pen. Code. The courts of that state have held that an information or indictment may not be set aside upon any grounds other than those expressly specified. People v. Schmidt, 64 Cal. 260, 30 P. 814; 14 Cal. Jur. 75, sec. 58. It has been held that when a motion to set aside an information is granted there is no case pending in the superior court until a new information is filed. People v. Thompson, 84 Cal. 598, 24 P. 384.

We next examine the second ground, to wit, that defendant was not legally committed before being informed against. Section 5011, Id., reads:

"When allowed, court may resubmit. If the demurrer is allowed, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment or information, directs the case to be submitted to the same or another grand jury, or directs a new information or complaint to be filed. After such order or resubmission, the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases."

Apparently the procedure here provided was followed. The court, after sustaining the demurrer, ordered that a new information be filed, giving as a reason therefor his opinion that the objections on which the demurrer was sustained may be avoided in a new information. After such order, defendant was examined before a magistrate and committed for further proceedings in the superior court, and within the fifteen days prescribed by section 5007, Id., the county attorney filed such new information. The motion to set aside the information was therefore properly denied, and for the same reason the plea in abatement was properly overruled.

We next examine the ruling of the court on the demurrer to the information. The grounds of the demurrer are: (1) That the information does not set forth the substance of the controversy or matter concerning which the offense is alleged to have been committed; (2) that it does not show by...