Quen Guey v. State

• Decision Date: 21 May 1919
• Docket Number: Criminal 466
• Citation: 20 Ariz. 363,181 P. 175
• Parties: QUEN GUEY, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

181 P. 175

20 Ariz. 363

QUEN GUEY, Appellant, v. STATE, Respondent

Criminal No. 466

Supreme Court of Arizona

May 21, 1919

APPEAL from a judgment of the Superior Court of the county of Yavapai. John J. Sweeney, Judge. Reversed.

STATEMENT OF FACTS BY THE COURT.

The county attorney filed an information against the defendant Quen Guey, in the superior court of Yavapai county, wherein it is charged that the said defendant "did willfully, unlawfully and feloniously commit a battery upon the person of one Minnie Schemer, by choking and striking the said Minnie Schemer, the said Quen Guey then and there being an adult male person, and the said Minnie Schemer being then and there a female person." The trial resulted in a verdict of guilty, and in due time the defendant filed a motion for a new trial, which was overruled, and judgment was pronounced against him. He seeks to review such judgment by this appeal.

Mr Robert E. Morrison, for Appellant.

Mr Wiley E. Jones, Attorney General, and Mr. F. L. Haworth, County Attorney, for the State.

OPINION

BAKER, J.

(After Stating the Facts as Above). The defendant interposed a demurrer to the information on the ground that such information failed to allege that a preliminary examination in the case had been held or that the defendant had waived such examination. The court overruled the demurrer, and this ruling of the court is assigned as error.

The Constitution of the state provides:

"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." Section 30, art. 2 (Declaration of Rights), Const. Ariz.

Counsel for the defendant has argued, at great length and with much force and ability, that under the constitutional provision quoted the trial court acquires no jurisdiction of a felony charge prosecuted by information, unless the accused has had a preliminary examination, or has waived such examination, and that the information must allege one or the other. We very willingly concede that counsel is correct to the extent that, before a prosecution by information for a felony can be legally had in this state, it must be preceded by a preliminary examination, or the accused must have waived such examination. It is the fact that there was a preliminary examination or waiver thereof, and a judicial determination thereon by the examining magistrate that a felony has been committed, and that there is probable cause to believe that the accused is guilty thereof, that confers jurisdiction on the superior court, ad authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence on such examination, or for the offense in the preliminary information when such examination has been waived by the accused. It seems to have been the intention of the framers of the Constitution, in prescribing the necessity of a preliminary examination or its waiver, before filing an information, to afford a shield to the citizen against the unwarranted zeal of prosecuting officers, and lessen the danger of the institution of criminal proceedings against a citizen through mere personal spite or malevolence. But why should it be necessary to aver in the information that such preliminary examination in the case had been held or had been waived by the accused? The constitutional provision does not in terms require, nor does it intimate, that the information should contain any such averment. The examination required by the provision is certainly no part of the offense charged nor is it descriptive thereof. Such an averment cannot be said to be necessary for the information of the court as to its jurisdiction over the case, and, so far as it is a shield to the accused, he may avail himself of it by a proper plea in abatement or motion to quash the information.

The Penal Code (section 972) provides:

"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, except in cases where such commitment is not required by law."

The accused is required to avail himself of this procedure at the time he is arraigned, and, if no such step is taken upon his part, the law will presume that a preliminary examination has been duly held or waived. Williams v. State, 6 Okl.Cr. 373, 118 P. 1006; Canard v. State, 2 Okl.Cr. 505, 139 Am. St. Rep. 949, 103 P. 738, 881.

The question has been before this court once before, in the case of Mo Yaen v. State, 18 Ariz. 491, L.R.A. 1917D, 1014, 163 P. 135, in which case the court said:

"If this is such a case as the law requires a preliminary examination to be had before a magistrate prior to the filing of an information, the failure to make such examination is not a ground for demurrer, but is a ground for a motion to quash the proceedings and abate the action. If the examination was or was not a necessary step in the proceedings, certainly such step need not be alleged on the face of the information."

The Constitution of Oklahoma, section 17 (Bill of Rights), prescribes:

"No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination."

The supreme court of that state has considered this provision of the Constitution in several cases, and has uniformly held that it is not necessary to allege in the information whether the accused has had a preliminary examination or has waived such examination. Canard v. State, supra; Williams v. State, supra; Wood v. State, 3 Okl.Cr. 553, 107 P. 937; Caples v. State, 3 Okl.Cr. 72, 26 L.R.A. (N.S.) 1033, 104 P. 493.

The Constitution of the state of Delaware (article 5, section 8) provides:

"Prosecutions by informations shall only be had after examination and commitment and holding to bail by the judge or justice of the peace."

The supreme court of that state, in considering this provision of the Constitution, in the case of State v. Moore, 2 Penne. (Del.) 299, 46 A. 669, said:

"It is not necessary, in order to give the court jurisdiction, to aver in the information an examination and commitment or holding to bail of the defendant. It is a matter of defense, and defendant may avail himself of the failure to proceed by examination and commitment or holding to bail, by plea in abatement."

To use a threadbare...