State v. Coursey, 1003

• Decision Date: 11 December 1950
• Docket Number: No. 1003,1003
• Citation: 71 Ariz. 227,225 P.2d 713
• Parties: STATE v. COURSEY.
• Court: Arizona Supreme Court

Page 713

225 P.2d 713

71 Ariz. 227

STATE v. COURSEY.

No. 1003.

Supreme Court of Arizona.

Dec. 11, 1950.

V. L. Hash and Virginia Hash, of Phoenix, for appellant.

Fred O. Wilson, Atty. Gen., Maurice Barth, Asst. Atty. Gen., Charles Rogers, Asst. Atty. Gen., for appellee.

UDALL, Justice.

Oliver Wayne Coursey, defendant-appellant, was charged by an information containing two counts with the crimes of: (a) robbery, and (b) kidnaping with intent to rob. After arraignment and a plea of not guilty as to both counts the cause came on regularly for trial before a jury, resulting in a conviction on both charges. Following a denial of defendant's motion for a new trial the court pronounced judgment and sentenced him to serve not less than 20 nor more than 25 years on each count, the sentences to run concurrently. From said judgment and the order denying the motion for new trial this appeal was taken.

To present a clear picture of the points urged by defendant, as requiring a reversal of the judgment of conviction, we deem it advisable to state in some detail the facts developed at the trial, as well as the procedural steps taken in bringing defendant to justice.

The State's proof shows (The defendant offered no testimony whatever.) that one John G. Campbell, the assistant manager of the Ryan-Evans Drug store located at Third Avenue and Roosevelt Street in the city of Phoenix, at the close of business on October 24, 1948, placed the day's receipts in the store safe, closed the store and locked it, got into his own car and started for home, driving west on Roosevelt Street. A red traffic light at Seventh Avenue caused him to bring his car to a stop, and while he was waiting for the light to change, a person (whom Campbell later positively identified as the defendant) opened the right front door of the car and got in beside him. Campbell was directed by defendant to turn right which, out of fear, he did, and then he was ordered to drive back to the drug store, a distance of approximately six blocks. Enroute the defendant had Campbell stop the car while he searched him for a possible weapon. At the same time defendant exhibited a sawed-off shot gun which he held in his hands. Campbell testified the defendant told him, 'If I did what he wanted, I wouldn't be hurt.'; and that he was asked if he had a lot of 'dope' at the drug store. Upon arrival, the car was parked at the curb immediately west of the store, and Campbel was ordered to unlock and open the door to the drug store. After entering, Campbell was made to open the safe and hand over the money therein to defendant. He was then forced to stand with his face to the wall while defendant placed the currency and cash in his pockets. (The checks were left undisturbed.) Thereafter Campbell was required at gun point to accompany defendant back to the car. When the former had started the motor, he was ordered out and defendant drove off. Campbell immediately reported the matter to the police and, while his car was recovered early the next morning, it was not until November 16, 1948, the defendant was apprehended.

Procedurally, the following steps were taken in what we shall designate as case No. 20016. A criminal complaint charging defendant with robbery was filed before a magistrate by the witness Campbell. The docket of the justice of the peace recites that defendant was advised of his legal rights and waived preliminary hearing. Thereupon, on December 2, 1948, the court held defendant to answer for two felonies, viz.: robbery and kidnaping with intent to rob. An information containing these charges under separate counts was timely filed by the county attorney in the superior court. Some two months after arraignment defendant interposed a motion to quash upon the ground that he 'was not informed of his rights' as required under Sec. 44-302, A.C.A.1939. This section in so far as material reads:

'* * * the magistrate shall immediately inform him (a) of the charge against him, (b) of his right to the aid of counsel during the preliminary examination, and (c) of his right to waive such examination.' Rules Cr.Proc. § 39.

The motion to quash was not filed at the time of or prior to arraignment as required by Sec. 44-1001, A.C.A.1939, Rules Cr.Proc. § 205, hence it was waived under Sec. 44-1016, A.C.A.1939:

'If the defendant does not move to quash the * * * information before or at the time he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash except those which are also grounds for a motion in arrest of judgment. * * *' (Emp. sup.) Rules Cr.Proc. § 218. All exceptions referred to in the statute are wholly inapplicable to the grounds with which we are here concerned.

Nevertheless the Hon. Renz L. Jennings, judge of division, 6 conducted a hearing on the motion to quash, at the conclusion of which on March 1, 1949, the court improvidently entered this unique order, viz.: 'It is ordered the defendant be re-arraigned in Justice Ct. on the Complaint.'

We turn now to the steps taken in the instant case, No. 20260. Irrespective of the peculiar phraseology used in the above order, the county attorney correctly interpreted its legal effect to be as follows: (1) quashing the information in cause No. 20016, and (2) directing that the cause be remanded back to the magistrate for further proceedings. The prosecutor elected to file a new criminal complaint against the defendant, containing the same two counts, as was done in the case of State v. Phillips, 27 Ariz. 349, 233 P. 586 and Pray v. State, 56 Ariz. 171, 106 P.2d 500, rather than proceed on the original complaint, as in the case of Indian Fred v. State, 36 Ariz. 48, 282 P. 930. A new hearing was had before the magistrate, the defendant being represented by his present counsel, and at the conclusion thereof, on April 7, 1949, defendant was again held to answer for the same two offenses.

The next day the county attorney filed an information in the superior court, the charging part of which was identical with the previous information filed in cause No. 20016. Before arraignment thereon the defendant filed a motion to quash and a 'plea in bar' which were predicated upon the claim that the same charges were then pending in cause No. 20016.

In the meantime and before the motion to quash and 'plea in bar' in the instant case were ruled upon, the county attorney, in the absence of defendant or his counsel, needlessly went back into Div. 6 and procured from the presiding judge on April 16, 1949, the following order in cause No. 20016: 'Order, on motion of County Attorney, Dismissing the complaint.' Thereafter the motion and plea were denied; defendant was duly arraigned and a plea of not guilty was entered.

It was then suggested that the defendant was insane, and after an insanity hearing was held and this purported defense overruled, the cause was set for trial on October 31, 1949. In the meantime the defendant further complicated the record by filing another 'plea in bar', which was promptly overruled. At long last the case was tried to a jury, resulting in defendant's conviction on both counts. The judgment and sentence from which this appeal was taken followed. There are but three questions presented under defendant's assignments of error. The first contention is that the trial court erred, for the reason heretofore stated, in overruling the 'plea in bar' and denying the motion to quash the information upon which defendant was convicted.

It will materially aid in determining this first assignment if we apply the applicable statutes and thereby cut away some of the underbrush. Under Sec. 44-1003, A.C.A.1939, it is provided:

'Demurrers to the indictment or information and all pleas other than the pleas of guilty and not guilty are hereby abolished. All defenses heretofore available to the defendant by demurrer, or under any plea other than the plea of not guilty, or by a motion to dismiss or quash the indictment or information, and which are available under this Code, shall hereafter be taken by a motion to quash the indictment or information or a count thereof.' Rules Cr.Proc. § 207.

It would appear therefore that there was no legal basis for the defendant in the instant case to file his 'plea in bar' and later a 'plea to the merits and in bar,' for the rule is that he is limited to a motion to quash, the specific grounds for which are enumerated under Sec. 44-1005, A.C.A. 1939, Rules Cr.Proc. § 208. Sec. 44-1006, A.C.A. 1939, provides in part that: 'The motion to quash * * * shall specify distinctly the ground of objection relied on and the court shall hear no objection other than that stated in the motion. * * *' Rules Cr.Proc. § 209.

Analyzing the steps taken in the first case, No. 20016, we point out at the outset that the motion to quash was not based on an alleged defect in the information itself, hence the provisions contained in Sec. 44-1013, A.C.A. 1939, Rules Cr.Proc. § 216, as to the court ordering a new information to be filed within a time specified, has no application. The only ground specified in the motion to quash, viz.: 'the defendant was not informed of his rights and committed to the superior court as provided under Sec. 44-302, A.C.A. 1939' is not one of the grounds enumerated under Sec. 44-1005, supra, and hence could not legally form the basis for such a motion.

Furthermore the claimed defect, which is in the nature of a collateral attack, flies squarely in the face of the magistrate's order holding defendant to answer wherein it is recited that the defendant was informed of his legal rights and waived preliminary hearing. We reiterate the fact that this motion to quash not having been timely made was waived. Emphasizing the importance of making timely objection, Sec. 44-503, A.C.A. 1939, goes so far as to provide: '* * * The fact that a preliminary examination was neither had nor waived shall in no case invalidate any information in any c...