State v. Dziggel

• Decision Date: 27 January 1972
• Docket Number: CA-CR,No. 1,1
• Parties: The STATE of Arizona, Appellee, v. Ralph L. DZIGGEL, Appellant. 330.
• Court: Arizona Court of Appeals

Page 1227

492 P.2d 1227

16 Ariz.App. 289

The STATE of Arizona, Appellee, v. Ralph L. DZIGGEL, Appellant.

No. 1 CA-CR 330.

Court of Appeals of Arizona, Division 1, Department B.

Jan. 27, 1972.

Gary K. Nelson, Atty. Gen., by Paul J. Prato, Asst. Atty. Gen., Phoenix, for appellee.

Stark & Wood, by Rod Wood, Phoenix, for appellant.

JACOBSON, Judge.

The questions raised by this appeal are whether defendant was deprived of a preliminary hearing and whether the trial court committed reversible error by refusing the defendant's requested instruction on prior inconsistent statements.

The defendant was charged by information with two counts of rape in the second degree and one count of assault with the intent to commit rape. The information was based on a complaint filed by the defendant's 15-year-old foster daughter. The defendant was convicted, the imposition of sentence was suspended, and he was placed on probation for seven years.

Initially, the defendant contends that the legislature has no power to confer jurisdiction upon a justice of the peace to conduct a preliminary examination in a felony case. The thrust of his argument is that: Article 6, § 32 of the Arizona Constitution, A.R.S., limits the jurisdiction of justices of the peace to misdemeanors. Therefore, A.R.S. § 22--301, subsec. 5, which confers jurisdiction upon justice courts to conduct a preliminary examination in felony cases, is therefore unconstitutional being in conflict with the constitutional provision. The argument then continues that the defendant did not have a preliminary hearing within the meaning of § 30, Article 2 of the Constitution, and defendant's motion to quash the information should have been granted under Rules 79 and 169, subd. A(3)(a), Rules of Criminal Procedure, 17 A.R.S.

While Article 6, § 32, of the Arizona Constitution states that criminal jurisdiction of a justice court shall be limited to misdemeanors, Article 2, § 30, of the Constitution provides that preliminary examinations for felonies shall be conducted before a 'magistrate'.

Although the Constitution does not define 'magistrate' the legislature by A.R.S. § 1--215, subsec. 11, has defined magistrate as including justices of the peace. See Wilson v. Garrett, 104 Ariz. 57, 448 P.2d 857 (1969).

We find no inconsistency between these constitutional provisions and the statutory definition of magistrate as including a justice of the peace. Article 2, § 30 permits a 'magistrate' (including justices of the peace) to conduct preliminary hearings in felony cases to determine, not guilt or innocence, but whether there is Probable cause to believe a crime has been committed, and if there is Probable cause to believe the defendant committed that crime. State v. Schumacher, 97 Ariz. 354, 400 P.2d 584 (1965); State v. Lenahan, 12 Ariz.App. 446, 471 P.2d 748 (1970). On the other hand, Article 6, § 32 limiting the criminal jurisdiction of the justice court to misdemeanor offenses, contemplates a determination before the justice of the peace of the guilt or innocence of the defendant. In other words, Article 6, § 32, deals with a final determination on the merits of the criminal action, which does not occur at a preliminary hearing. See A.R.S. § 22--301, subsec. 4. We therefore hold that Article 6, § 32, of the Arizona Constitution does not deprive a justice of the peace of jurisdiction to conduct a preliminary hearing involving a felony complaint as such a hearing does not result in a final determination of the criminal action on its merits.

Defendant next contends that he was denied due process of law because the justice of the peace was not an attorney. This precise question was disposed of in the case of Crouch v. Justice of Peace Court of Sixth Precinct, 7 Ariz.App. 460, 440 P.2d 1000 (1968). In Crouch, the Court said:

'The fact that a Justice of the Peace is not an attorney does not mean that he is per se unqualified to declare the law in the limited type of situations over which he has jurisdiction. The fact that a judicial error may be made in a proceeding does not necessarily imply a denial of due process of law. The 14th Amendment to the United States Constitution does not assure immunity from judicial error. Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962).' 7 Ariz.App. at 466, 440 P.2d at 1006.

Having found that the defendant had a preliminary examination within the meaning of Article 2, § 30, of the Arizona Constitution and one which complied with the concept of due process of law, we hold that the trial court properly denied the motion to quash the information.

Finally, the defendant contends that the trial court committed reversible error in denying his requested instruction regarding the complaining witness' prior inconsistent statements. The requested instruction is as follows:

'Credibility of witnesses may be attacked by introducing evidence that on some other occasion She made a statement or acted in a manner inconsistent with the testimony in this case on a matter material to the issues. Evidence of this kind may be considered by you in connection with all the other facts and circumstances in evidence in deciding the weight to be given to the testimony of that witness.' (Emphasis added.)

The trial court was...