State v. Elling

• Decision Date: 08 March 1973
• Docket Number: CA-CR,No. 2,2
• Citation: 506 P.2d 1102,19 Ariz.App. 317
• Parties: The STATE of Arizona, Appellant, v. Frank Loather ELLING and Peter John Elling, Appellees. 315.
• Court: Arizona Court of Appeals

Page 1102

506 P.2d 1102

19 Ariz.App. 317

The STATE of Arizona, Appellant, v. Frank Loather ELLING and Peter John Elling, Appellees.

No. 2 CA-CR 315.

Court of Appeals of Arizona, Division 2.

March 8, 1973.

Rehearing Denied April 4, 1973.

Review Denied May 1, 1973.

Gary K. Nelson, Atty. Gen., Phoenix, Dennis DeConcini, Pima County Atty., by Howard Hantman, Deputy County Atty., Tucson, for appellant.

Feldman, Wolin & Lahr, P.C., by Jack H. Lasseter, Tucson, for appellees.

KRUCKER, Judge.

An order granting the defendants' motion to quash an indictment is the subject of this appeal. The State presents the following question for review:

'When a magistrate dismisses a complaint following an extensive preliminary examination on the ground that there was an illegal search, is the State precluded from thereafter obtaining a Grand Jury indictment against the defendants on substantially the same evidence?'

The sequence of events preceding the motion to quash is as follows. At the conclusion of a preliminary hearing on a complaint charging the defendants with unlawful possession of marijuana for sale, the committing magistrate ruled that a search was illegal and dismissed the complaint. The propriety of such ruling on a determination of probable cause has been approved by the Supreme Court of this State. State v. Jacobson, 106 Ariz. 129, 471 P.2d 1021 (1970). Three weeks later the Pima County Grand Jury, on substantially the same evidence, returned a true bill charging the defendants with the same crime. Defendants filed alternative motions:

(1) A motion to quash on the grounds that the court lacked jurisdiction, and

(2) A motion to suppress all evidence on the ground that it was the product of an illegal search and seizure.

The State opposed the motion to quash, but the lower court granted it, relying on the following language in Wilson v. Garrett, 104 Ariz. 57, 448 P.2d 857 (1969):

'. . . a criminal prosecution must not be shuttled from one magistrate to another simply because a county attorney is not satisfied with the action of the magistrate in the precinct whose jurisdiction was first invoked. . . . Were it otherwise, an accused could be repeatedly charged before a series of magistrates, repeatedly subjected to jail, to the posting of bonds and to the expense and harassment of appearing in person and with witnesses to defend.' 448 P.2d at 859.

Because of the above-quoted language, the lower court was of the opinion that the prosecution's resort to the Grand Jury was a 'shuttle' denounced by Wilson v. Garrett, supra. We do not believe that Wilson mandates the result reached below.

A proceeding before an examining magistrate is not a judicial trial but merely a judicial inquiry and dismissal of a complaint is not an absolute bar to further prosecutions. State v. Byrd, 94 Ariz. 139, 382 P.2d 555 (1963); 22 C.J.S. Criminal Law § 347. In the case of Skinner v. Superior Court in and for County of Pima, 106 Ariz. 287, 475 P.2d 271 (1970), our Supreme Court reiterated this principle, pointing out that the determination of a preliminary hearing is not a final judgment. In Skinner, the committing magistrate discharged the defendants for lack of sufficient evidence and two months later, pursuant to the county attorney's motion, vacated its order of dismissal and reopened the preliminary examination to allow the prosecution to present testimony of a witness who had previously refused to testify.

In Wilson v. Garrett, supra, the Supreme Court rested its decision on enforcement of the principle of priority, i.e., where two courts have concurrent jurisdiction the first acquiring jurisdiction retains it to the exclusion of the other until the case is finally determined. The court discussed the legislative purpose in amending A.R.S. § 22--301 to limit the jurisdiction of justices of the peace to conduct preliminary examinations to offenses committed within their respective precincts. It stated that the spirit and plain intendment of the amended act required that the prosecution be confined 'to the jurisdiction of the first choice.' Therefore, in Wilson, since both superior court and justice court had concurrent jurisdiction to conduct a preliminary hearing, and the prosecution had invoked the jurisdiction of the latter (which had dismissed the complaint), it could no longer invoke the jurisdiction of the former. In closing, the court stated:

'We note that the prosecuting attorney is not foreclosed from proceeding in the same justice precinct if it appears that a different decision would be justified. Nor, of course, is the state foreclosed from presenting the matter to a grand jury.' 448 P.2d at 859.

In the case at bench, the prosecution did not proceed contrary to the principle enunciated in Wilson v. Garrett, supra. It did not shuttle the prosecution from one committing magistrate to another.

We are not unmindful of the recent decisions of Stone v. Hope, 488 P.2d 616 (Okl.Cr.1971) and People v. Uhlemann, Cal., 105 Cal.Rptr. 21, 503 P.2d 277 (1972). In the Stone case, the Oklahoma court held that before a prior dismissal by a committing magistrate can be overturned, the State must produce additional new evidence not presented and unavailable at the previous preliminary. We do not believe that the Oklahoma decision is apposite since in that jurisdiction the committing magistrate's ruling on the sufficiency of the evidence at the preliminary examination is considered 'final and binding' and he has the authority to rule on a motion to suppress at a preliminary examination. In Arizona, the rule is contrary--the determination of a preliminary hearing is not a final judgment, Skinner, supra, nor does a magistrate have the power to grant a motion to suppress. State v. Jacobson, supra.

The Uhlemann case is likewise distinguishable. In Uhlemann the California Supreme Court reiterated the established rule in California that a magistrate's order dismissing a complaint is not a bar to another prosecution for the same offense either by filing a subsequent complaint or by seeking a Grand Jury indictment. In that case, however, the dismissal was based upon the magistrate's Factual determination that the defendant did...