State v. Currier

• Court: Arizona Supreme Court
• Writing for the Court: JOHNSON; PHELPS
• Citation: State v. Currier, 347 P.2d 29, 86 Ariz. 394 (Ariz. 1959)
• Decision Date: 25 November 1959
• Docket Number: No. 1142,1142
• Parties: STATE of Arizona, Appellee, v. Mary Jean CURRIER, Appellant.

Page 29

347 P.2d 29

86 Ariz. 394

STATE of Arizona, Appellee, v. Mary Jean CURRIER, Appellant.

No. 1142.

Supreme Court of Arizona.

Nov. 25, 1959.

W. T. Choisser, Phoenix, for appellant.

Charles C. Stidham, County Atty., and Vernon B. Croaff, Deputy County Atty., Maricopa County, Phoenix, for appellee.

JOHNSON, Justice.

This is a certified question from the superior court. The question is this: May a person be properly charged with a felony by complaint commenced by the complaining witness upon 'his information and belief?'

It appears from the records certified to this court that the defendant was charged with the offense of lewd and lascivious acts, a felony, in two separate complaints filed in a justice court of Maricopa County. It was stipulated that the complaining witness in each case stated under oath that 'it is his information and belief that the felony set forth in the complaint was committed by this defendant.' There was also filed in each action a statement or affidavit as provided by Rule 1, infra, executed by the complaining witness on information and belief.

A motion to quash the complaints was denied by the justice court and the defendant was held to answer to the superior court for trial. In the superior court the defendant again moved to quash the information alleging, among other matters, that the court lacked jurisdiction because the defendant had been held to answer upon a complaint filed contrary to Rule 1 of the Rules of Criminal Procedure, 17 A.R.S. Hence, the certified question now before us.

The commencement of a criminal action brought before a magistrate in this State is governed by 17 A.R.S. Rules of Criminal Procedure, Rule 1 and Rule 2. Rule 1 provides:

'A. All criminal actions and proceedings brought before any magistrate for a public offense, triable within the county, shall be commenced by complaint, in writing, under oath, setting forth the offense charged, with such particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of.

'B. When a complaint is made to a magistrate that an offense has been committed, he shall examine on oath the complainant and any witness the complainant produces and any witness subpoenaed by the magistrate. If the county attorney so requests, the magistrate shall subpoena witnesses for examination. The magistrate may take the affidavit of any such witness and cause the affidavit to be subscribed by the person making it.'

An Rule 2:

'A warrant shall be issued, except as provided by subsections A and B in Rule 11, for the arrest of the person complained against if the magistrate from the examination of the complainant and the witnesses, if any, has reasonable ground to believe that an offense was committed and that the person against whom the complaint was made committed it.'

While this Court heretofore has not given an explicit ruling on the precise question certified at bar, the hard-rock foundation of our present decision was laid in Turley v. State of Arizona, 48 Ariz. 61, 59 P.2d 312, 317. From the opinion in that case, we quote:

'We are of the opinion that the rule requiring a complaint to be verified in all cases by a person who has actual knowledge of the facts set forth in the complaint is too harsh and, indeed, unreasonable at times. There are many cases where no one witness has personal knowledge of facts sufficient to support a conviction for a crime which has undoubtedly been committed. * * * If the federal rule is to be followed, it would be impossible to file a valid complaint in such a case. Apparently the purpose of the Fourth Amendment is to prevent a man from being harassed by frivolous or malicious charges. Section 4929, Revised Code of 1928, ¹ provides all the protection which a defendant needs against charges of that nature. * * * It will be seen thereby that when the complaint is laid before the magistrate, if he has any reason to believe that the person who signed it * * * is acting merely on unwarranted suspicions, he has the right, before issuing the warrant, to examine not only the complainant but as many witnesses as he may see fit, and until he is satisfied, not only from the complaint but from the testimony under oath of all of the witnesses whom he desires to call, that there is reasonable ground to believe that the accused has committed the crime charged, he is not required to issue the warrant. We are of the opinion that the practice which has, to our knowledge been followed so long in our courts of permitting either the county attorney, the sheriff, or any other proper officer of the county to file a criminal complaint in order to initiate a prosecution for a crime which they have good reason to believe has been committed, is logical, reasonable, and consistent with the Constitution of Arizona * * *.' (Emphasis supplied.)

We approved the 'basic philosophy' of the Turley case in State v. Colvin, 81 Ariz. 388, 307 P.2d 98.

We have found remarkably few cases from other jurisdictions bearing on the instant problem, under statutes reasonably similar to ours. Perhaps the most notable of these is an old but untarnished case from Utah, United States v. Eldredge, 5 Utah 161, 13 P. 673, 675, 676; Eldredge v. U. S., 145 U.S. 636, 12 S.Ct. 980, 36 L.Ed. 857, containing an extended discussion of the problem, set forth as follows:

'In affidavits generally for the arrest of alleged criminals, it is not necessary that they should show a prima facie case, but need only set forth facts tending to establish the commission of the offense and the guilt of the defendant, so that 'the magistrate is satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it.' * * * After the arrest, and after the examination of the case then, if there is a prima facie case made out against the defendant, the magistrate must hold him to answer to an indictment.

'If it were necessary that the affidavit for arrest should be upon knowledge, and not upon information and belief, the criminal laws generally, in this section of country, would be a dead letter, and especially would this be the case in regard to offenses * * * where the witnesses are almost exclusively unwilling, and hostile to the enforcement of the law * * *.

'At the examination, the information or complaint or depositions taken before the issuance of the warrant do not become the basis of the magistrate's action in holding the accused to answer in the district court, but he proceeds to an examination of the witnesses, and then, in pursuance of (the Utah Statute) if it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, he must order him to be held to answer to the same. The evidence on...