State v. Grantham

• Decision Date: 05 October 1926
• Docket Number: Civil 2522
• Parties: THE STATE OF ARIZONA ex rel. ARTHUR T. LA PRADE, County Attorney of Maricopa County, Arizona, Appellant, v. E. G. GRANTHAM, Appellee
• Court: Arizona Supreme Court

249 P. 758

30 Ariz. 591

THE STATE OF ARIZONA ex rel. ARTHUR T. LA PRADE, County Attorney of Maricopa County, Arizona, Appellant, v. E. G. GRANTHAM, Appellee

Civil No. 2522

Supreme Court of Arizona

October 5, 1926

APPEAL from a judgment of the Superior Court of the County of Maricopa. E. Elmo Bollinger, Judge.

Judgment reversed and cause remanded, with directions.

Mr Arthur T. La Prade, County Attorney, and Mr. Chas. A. Carson Jr., Deputy County Attorney, for Appellant.

No appearance for Appellee.

Lockwood J. McAlister, C. J., and Ross, J., concur.

OPINION

Lockwood, J.

On the fifteenth day of March, 1926, one Maurice Grantham appeared before J. P. Mallory, who was the duly elected, qualified and acting justice of the peace, Tucson precinct, Pima county, Arizona, and swore to a criminal complaint against E. G. Grantham. The substance of the complaint is as follows:

"That one E. G. Grantham on or about the 15th day of March, 1926, at Tucson precinct, county and state aforesaid, committed a felony, to wit, failure to provide for minor child, as follows, to wit:

"The said E. G. Grantham did then and there, wilfully, unlawfully, feloniously, and without lawful excuse omit to furnish the necessary food, clothing, shelter, and medical attendance to the minor child of the said E. G. Grantham, and of his wife, Maurice Grantham, namely, Eleen Grantham, the furnishing of said food, clothing, shelter and medical attendance being then and there, and at all times since March 15, 1926, a duty imposed by law upon the said E. G. Grantham."

A warrant was duly issued upon the complaint by the justice of the peace, and, it appearing that defendant was in the city of Phoenix, it was forwarded to A. J. Moore, the sheriff of Maricopa county, who arrested defendant and held him awaiting the coming of a deputy sheriff from Pima county to return him to Tucson in pursuance with the warrant. Grantham thereupon filed in the superior court of Maricopa county a petition for a writ of habeas corpus. In said petition he set up as follows:

"Petitioner says that he is a resident and citizen of Maricopa county and has been such resident and citizen for at least two years last past; that he had a home here in the city of Phoenix wherein he and his wife resided with their child, and that on or about four or five weeks ago the wife took the child and left the home of petitioner without his consent and has remained away ever since; that petitioner has not been in Pima county since the wife left his home; that at all times he has provided a home in Maricopa county for his wife and child and still is willing and able to do so and to provide for their support and maintenance in Maricopa county, but he is not a resident of Pima county and has not been."

As a conclusion from these alleged facts he claimed that the warrant of arrest issued from the justice court of Pima county was beyond the jurisdiction of the justice of the peace, without authority of law, and void. The matter was heard on the warrant, the complaint and the petition, and the petitioner was discharged. From this order of discharge the state has appealed.

Petitioner has made no appearance in this court, nor has any brief been filed upon his behalf, so that we might assume he confessed error in the proceedings in the superior court. Notwithstanding this, since the matter as presented raises a question of law of some general public interest, we have decided to review the case on its merits. It appears from the above that petitioner was in custody on a warrant regular upon its face, issued upon a complaint in a court of competent jurisdiction, charging petitioner with a felony under the provisions of section 249, Penal Code of 1913. The petition was based solely on the ground that the real facts of the case would show that petitioner had not committed the crime charged in the complaint, and that since he had not committed it the justice court had no jurisdiction in the matter. It is the contention of the state that in a proceeding of this nature it is not competent for the petitioner either to set up or to prove an affirmative defense on the merits to the charge under which he is held, particularly in advance of a hearing before the justice of the peace out of whose court the warrant issued.

Section 1359 of the Penal Code of 1913 gives the causes for which a prisoner may be discharged on the return of a writ of habeas corpus if he be in custody by virtue of process from any court of this state, or judge or officer thereof. There are some seven reasons set forth in this section, only one of which could be considered in any way applicable to the facts in this case, to wit, "when the jurisdiction of such court or officer has been exceeded."

It cannot be denied that the justice courts of this state have jurisdiction to receive complaints of the nature set forth above. It is equally true that when such complaint is made, stating a public offense, as does the one in question, it is the duty of the justice of the peace to issue a warrant for the arrest of the alleged offender. Such warrant may be executed by any sheriff, constable, marshal, or policeman in the state of Arizona to whom it may be delivered, and it is thereupon the duty of the arresting officer where the charge is a felony to take the defendant before the magistrate who issued the warrant, or, in case of his absence or inability to act, before the nearest or most accessible magistrate in the county from which the warrant issued. Sections 835, 837, 842 and 843, Penal Code 1913.

All this procedure was most meticulously followed, with the exception that before the arresting officer could take the petitioner to Pima county this writ was sued out. The question then is, When it appears affirmatively upon the face of the proceedings that a petitioner is in custody for a felony by virtue of process of a court of proper jurisdiction, may he set up or prove on habeas corpus facts which, if true, would show he was not guilty of the offense charged, or that the venue was improperly laid, in advance of the preliminary hearing provided by statute? A similar situation arose in the case of Robertson v. State, 36 Tex. 346. In that case Robertson was charged with the theft of a horse alleged to have been stolen in Denton county. The warrant was issued...