State v. Colvin

• Decision Date: 19 February 1957
• Docket Number: No. 1087,1087
• Citation: 81 Ariz. 388,307 P.2d 98
• Parties: STATE of Arizona, Appellee, v. Margaret COLVIN, Appellant.
• Court: Arizona Supreme Court

Page 98

307 P.2d 98

81 Ariz. 388

STATE of Arizona, Appellee, v. Margaret COLVIN, Appellant.

No. 1087.

Supreme Court of Arizona.

Feb. 19, 1957.

Hymen D. Goldberg, Tucson, for appellant.

Robert Morrison, Atty. Gen., H. B. Daniels, Asst. Atty. Gen., and Raul H. Castro, County Atty. of Pima County, Tucson, for appellee.

UDALL, Chief Justice.

This is an appeal by Margaret Colvin (defendant-appellant), who operated a rest home in Tucson for aged persons, from a judgment of conviction, on three counts, of the crimes of aggravated assault, a felony. The trial was held in November, 1955. Defendant's motions (1) in arrest of judgment, and (2), for a new trial, were denied and this appeal followed.

The information filed by the county attorney charged defendant with four separate aggravated assaults upon aged persons at the rest home, viz.:

Count 1, upon the person of Jessie White, on August 1, 1955;

Count 2, upon the person of Leontine Brown, on August 1, 1955;

Count 3, upon the person of Bertha Schochow, on Aug. 20, 1955; and

Count 4, upon the person of Bertha Schochow, on Aug. 21, 1955.

Each count alleged the defendant was 'an adult female person of robust health and strength' and that the person allegedly assaulted was 'a female person decrepit and in ill health', and in violation of section 43-603, A.C.A.1939 (now section 13-245, subd. A(2), A.R.S.1956). The jury acquitted the defendant on count 4, supra. The court imposed sentence on each of the other counts, of 18 months to two years, to be served concurrently.

Eighteen assignments of error and fourteen supporting propositions of law have been presented by defendant. Many of these do not require extended discussion. We shall not consider the propositions seriatim.

Several assignments deal with claimed errors relating to procedural matters. First, it is urged the trial court erred in denying a motion to quash the information because no lawful complaint was presented to the magistrate. Defendant argues the complaint does not meet the requirement of the rules and statutes as the complainant, one Wilbur Schochow, a son of Bertha Schochow, was a lay person who relied solely upon hearsay knowledge in filing charges against defendant; hence, it is contended that by reason of this claimed defect the magistrate was without jurisdiction to hear the proceedings. A similar contention was rejected in Turley v. State, 48 Ariz. 61, 59 P.2d 312; nor is there any solace for the defendant in the fact that there complainant was an officer of the law. We deem the basic philosophy of the Turley case, supra, controlling here, and, therefore, find no merit in this assignment.

Subpoenas duces tecum.

Defense counsel obtained several subpoenas duces tecum directed to the county attorney and members of his force, requiring them to bring to the preliminary hearing the following:

'* * * All written statements of witnesses, other papers or documents, chains, sticks, and any other physical objects relating to any charge in the complaint or that may be offered in evidence, or that may constitute evidence relating to any charge in the complaint, in your possession or control.'

Upon motion of the county attorney these subpoenas were later stricken. Defendant maintains this ruling deprived her of due process of law and that the preliminary hearing was wholly illegal as a result thereof. She assigns as error the denial of her motion to quash the information upon this ground. It seems obvious that these vague subpoenas duces tecum, supra, were, in the main, an attempt to go on a 'fishing expedition', probably in order to obtain the 'work product' of the county attorney.

While we know of no Arizona rule or statute which provides specifically for such sweeping process as defendant claims was hers as a matter of right, this court has held that inspection and discovery might be permitted in criminal cases by exercise of the inherent power of the court. See, State ex rel. Mahoney v. Superior Court, 78 Ariz. 74, 275 P.2d 887, and State ex rel. Polley v. Superior Court of Santa Cruz County, 81 Ariz. 127, 302 P.2d 263. However, a request for the employment of such power is directed solely to the sound discretion of the presiding judge or magistrate. In the instant matter we perceive no abuse of discretion; hence, there is no merit to this assignment.

Bill of particulars.

As to count number three of the information (as well as the other counts)-defendant filed a two-page motion for a bill of particulars, endeavoring in this manner to procure much of the same information sought by the subpoenas duces tecum. Inasmuch as a full preliminary hearing has been held on this count the trial court denied such motion. This action is assigned as error. In the case of State v. Benham, 58 Ariz. 129, 118 P.2d 91, we held (a) the right to a bill of particulars was discretionary and not mandatory, and (b) that a bill of particulars is required to be furnished defendant only when it is necessary, and that the question of necessity for defendant to be further informed of particulars of an offense rests in the sound discretion of the court. Upon the record before us there appears no abuse of discretion, hence, this assignment is also without merit.

Lack of preliminary hearing.

We next consider defendant's major contention that the trial court erred in failing to grant her motion to quash counts 1 and 2 of the information on the ground that she had not been given a preliminary hearing on the offenses alleged therein. The Constitution of Arizona, Article 2, section 30, provides that

'* * * no person shall be prosecuted for felony by information without having had a preliminary examination before a magistrate or having waived such preliminary examination.'

This constitutional provision is implemented by Rules Cr.Proc. 114, Sec. 44-503, A.C.A.1939 (now 17 A.R.S. rule 79). The factual predicate for this contention is as follows: the criminal complaint laid before the justice of the peace, sitting as a committing magistrate, only charged defendant with three counts of aggravated assault upon Bertha Schochow. At the preliminary hearing, over objection of defendant, the prosecution was permitted to introduce evidence of claimed aggravated assaults upon Jessie White and Leontine Brown (later covered by counts numbered 1 and 2, supra), this upon the theory that it tended to prove 'motive, intent or what have you'. At the close of the preliminary hearing, without the filing of a new complaint charging such offenses the county attorney requested that the defendant be held to answer to the superior court for aggravated assaults upon the persons of Jessie White and Leontine Brown. Reliance was had upon Rules Cr.Proc. 55, Sec. 44-322, A.C.A.1939 (now 17 A.R.S. rule 33), which reads in part:

'If it appears that any offense has been committed and that there is probable cause to believe the defendant guilty thereof, the magistrate shall hold him to answer. * * *' (Emphasis supplied.)

Over the vigorous objection of defense counsel that they had had no preliminary hearing on those charges, the magistrate proceeded to hold defendant to answer thereon. Based upon this order, the information was filed containing counts one and two, supra. Upon arraignment-but before pleading to the merits-defendant filed a motion to quash such counts for the reason that no preliminary hearing has been held on such charges. Hence no claim can be made that such objection was waived under Rules Cr.Proc. 114 (Sec. 44-503, A.C.A.1939). See, State v. Singleton, 66 Ariz. 49, 182 P.2d 920. The motion to quash was denied.

We are of the opinion the court erred in its ruling. On this record it indubitably appears defendant was not given a preliminary hearing guaranteed by our Constitution as to these charges. We concede that rule 55, supra (which, incidentally, was prepared and approved by the American Law Institute as one of the rules constituting a model code of criminal procedure and was adopted by this court on April 1, 1940), is susceptible of the construction placed upon it both by the magistrate and trial court. It was very loosely drawn and subsequent to defendant's trial was amended by this court. See present rule 33, Rules of Criminal Procedure, effective January 1, 1956. Unfortunately there is an apparent paucity of authority precisely treating this problem. Two early Arizona decisions-Duke v. State, 1937, 49 Ariz. 93, 64 P.2d 1033, and Fertig v. State, 1913, 14 Ariz. 540, 133 P. 99-merely touch upon it. Bith dealt with statutory provisions then in effect and held an information is bottomed upon the commitment rather than the complaint, but neither decision concerned our narrow question as to whether in law a preliminary hearing had in fact been held. The following cases, however, are helpful by way of comparison; they indicate a viewpoint which is consonant with ours on this aspect of the preliminary examination: Parks v. Superior Court, 38 Cal.2d 609, 241 P.2d 521, 523; People v. Bird, 212 Cal. 632, 300 P. 23, 28; State v. Pay, 45 Utah 411, 146 P. 300; State v. Freeman, 93 Utah 125, 71 P.2d 196, 200.

In view of the amended rules it appears to us...