State v. Phillips

• Decision Date: 17 February 1925
• Docket Number: Criminal 606
• Citation: 233 P. 586,27 Ariz. 349
• Parties: STATE, Appellant, v. CLARENCE PHILLIPS, Respondent
• Court: Arizona Supreme Court

233 P. 586

27 Ariz. 349

STATE, Appellant, v. CLARENCE PHILLIPS, Respondent

Criminal No. 606

Supreme Court of Arizona

February 17, 1925

APPEAL from a judgment of the Superior Court of the County of Graham. W. R. Chambers, Judge. Reversed and remanded.

Mr John W. Murphy, Attorney General, and Mr. E. L. Spriggs County Attorney, for the State.

No appearance for Respondent.

OPINION

McALISTER, C. J.

An information charging Clarence Phillips with the larceny of twelve head of cattle belonging to one Turner West was filed in the superior court of Graham county on November 2, 1923. The date of the theft was alleged to have been on or about November 1, 1922. A demurrer to this information was sustained on February 19, 1924; the minute entry of the proceedings relating thereto being in this language:

"The demurrer having been taken under advisement, and the court being now fully advised in the premises and having duly considered the matter, orders that said demurrer be, and is hereby sustained."

On March 3, 1924, the court made the following order:

"Now upon motion of County Attorney E. L. Spriggs, Esq., it is ordered that this cause be, and it is hereby referred back to the justice of the peace."

In pursuance of this order, a new preliminary hearing was had which resulted in Phillips being held to the superior court a second time, and thereafter, to wit, on March 12, 1924 another information charging him with the larceny on or about November 1, 1922, of one certain animal of the bovine species, to wit, a bull, the personal property of A. T. West, was filed in the same court. On April 2d, thereafter, Phillips entered a plea of former acquittal to this information, waived a jury, and requested an immediate trial, which was given.

The proof showed conclusively, and it was admitted by the county attorney, that the animal alleged in the second information to have been stolen on November 1, 1922, from Turner West was one of the twelve head of cattle alleged in the first information to have been stolen from the same owner on that date, and under this proof the court sustained the plea of former acquittal. It is from this order that the state appeals.

The sustaining of this plea is the only error assigned. It will be observed that when the demurrer to the first information was sustained on February 19th, the court made no order directing that a new information be filed, but on March 3d thereafter referred the cause back to the justice of the peace. It is appellant's contention that though this order was made approximately two weeks after the demurrer was sustained, it was sufficient under the provisions of section 984, Penal Code of 1913, to confer jurisdiction on the justice court to have a second preliminary hearing. This section reads:

"984. If the demurrer is allowed, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment or information, directs the case to be submitted to the same or another grand jury, or directs a new information to be filed; provided, that after such order or resubmission, the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases."

Because this paragraph does not say in specific language just when the court shall direct a new information to be filed, in case it sustains a demurrer and is of the opinion that the objection raised can be avoided in a new information, appellant contends that it does not limit the time for making such an order. This view, we think, is untenable. The section confers upon the court the right to direct the resubmission of the cause to the same or another grand jury or the filing of a new information if, when it sustains the demurrer, it is of the opinion that the defect can be cured by another indictment or information. This places it wholly within the power of the court to determine whether further prosecution shall be had, and if an order to this effect is not made the only conclusion to be drawn therefrom is that the court feels that the objection cannot be overcome in another accusation. Under such conditions, the order allowing the demurrer becomes final and constitutes a bar to another prosecution for the same offense.

While the statute does not say in haec verba that an order resubmitting the cause or directing the filing of a new information shall be made at the time the demurrer is sustained, yet it is very clear that such is its meaning. This appears, we think, from the language of section 984 itself, and also from that of the succeeding sectio...