State v. Smith

• Decision Date: 19 January 1948
• Docket Number: 984
• Citation: 66 Ariz. 376,189 P.2d 205
• Parties: STATE v. SMITH
• Court: Arizona Supreme Court

189 P.2d 205

66 Ariz. 376

STATE v. SMITH

No. 984

Supreme Court of Arizona

January 19, 1948

Appeal from Superior Court, Coconino County; H. L. Russell, Judge.

Chester T. E. Smith was convicted of leaving the scene of an accident and he appeals.

Judgment reversed and case remanded.

Charlie W. Clark and Marshall W. Haislip, both of Phoenix, for appellant.

Evo De Conini, Atty. Gen., and Perry M. Ling, Chief Asst. Atty Gen., for appellee.

La Prade, Justice. Stanford, C. J., and Udall, J., concur.

OPINION

La Prade, Justice.

The appellant, defendant below, was charged by information with the crime of "Felony leaving scene of accident committed as follows, to-wit: The said Chester T. E Smith on or about the 10th day of October 1947, and before the filing of this information in and at the County of Coconino, State of Arizona, then and there being did, then and there wilfully, unlawfully and feloniously fail to stop and give his name and address, the names of the passengers in his vehicle, and the registration number of his vehicle to David Nunes, after the said Chester T. E. Smith had had a collision with a vehicle driven by the said David Nunes approximately 7 miles in a westerly direction from the Town of Williams, Coconino County, Arizona; the said Chester T. E. Smith was then and there the operator of a 1935 Ford truck;" (Emphasis supplied.)

Upon arraignment defendant entered a plea of guilty and was thereafter sentenced to an indeterminate term in the Arizona State Prison. From this judgment and sentence he has perfected an appeal to this court, assigning as error the fact that the information fails to state a public offense and that as a legal consequence the court was without jurisdiction to entertain the plea and render judgment. The information attempts to state an offense under the provisions of section 66-122, A.C.A.1939. This section is found in Chapter 66 relating to the use of motor vehicles and particularly under article 1 designated "Use of Highways by Vehicles." The pertinent portions of this section read as follows:

"Duty to stop in event of accident -- Penalty. -- The driver of any vehicle which collides with any person or any vehicle upon the highways, shall immediately stop, give his name and address, the names and addresses of all passengers, not exceeding five [5], in his vehicle and the registration number of his vehicle, to such person or to the occupants of the vehicle collided with, and shall immediately render reasonable assistance, including the carrying of such person to a physician for treatment, if such treatment is required or if carrying is requested by the person struck or by any occupant of the vehicle collided with. * * *" (Emphasis supplied.)

An information is a formal accusation against a person charging that he has committed an illegal act which is denounced by the state as a crime. It must indicate the crime charged and must contain a statement of the essential elements of the indicated crime. George v. Williams, 26 Ariz. 91, 222 P. 410; Elder v. United States, 9 Cir., 142 F.2d 199; Cochran v. United States, 157 U.S. 286, 290, 15 S.Ct. 286, 39 L.Ed. 704; United States v. Cruikshank, 92 U.S. 542, 545, 557, 23 L.Ed. 588; Woolley v. United States, 9 Cir., 97 F.2d 258, 261. A comparable fact situation is set forth in the recent case of State v. Valdez, 51 N.M. 393, 185 P.2d 977, 978. There the court said: "* * * Where the challenge to the information is based upon an omission in the averments of an essential element of the crime, jurisdiction of the subject matter cannot be conferred by consent, as in this case by pleas of guilty, and hence objections to the jurisdiction may be made for the first time in the Supreme Court. State v. City of Albuquerque, 31 N.M. 576, 249 P. 242; State v. Diamond, 27 N.M. 477, 202 P. 988, 20 A.L.R. 1527; Sais v. City Electric Co., 26 N.M. 66, 188 P. 1110. See, also, 24 C.J.S., Criminal Law, § 1671 page 274, and cases cited."

In our case of Burris v. Davis, 46 Ariz. 127, 46 P.2d 1084, 1086, the defendant entered a plea of guilty in the justice court to a charge of driving an automobile while intoxicated. After being sentenced to the county jail he attempted to perfect an appeal to the superior court, which was refused. He then perfected an appeal to this court where judgment was reversed and the case remanded with instructions to permit him to perfect his appeal in the superior court notwithstanding the fact that a plea of guilty had been entered by defendant in the justice court. The identical question of law here presented was not before the court in that case; nevertheless, the following observation was made which we feel to be entirely applicable now: "It is urged that this rule will seriously impede or delay the orderly and speedy administration of justice both in the inferior and superior trial courts, because defendants who have pleaded guilty with the expectation of receiving a light sentence may, if they are dissatisfied with the judgment of the court, have the case again heard upon its merits. So far as an appeal from the superior court to the Supreme Court is concerned, such a condition cannot arise. This court does not try a case de novo, but merely reviews the proceedings in the superior court for errors of law. Upon an appeal after a plea of guilty in such court, obviously no questions as to the sufficiency of the evidence, or errors in the manner of trial can be raised, the only question which this court can consider under such circumstances being jurisdictional ones, and if there be a question of lack of jurisdiction, it is but justice that this court should have the right to review the issue, notwithstanding a plea of guilty was entered. * * *" (Emphasis supplied.)

The Constitution of this state, section 30, article 2, provides that "No person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; * * *."

In construing this constitutional provision it was pointed out in Kingsbury v. State, 28 Ariz. 86, 235 P. 140, 143: "* * a prosecution without information or indictment, or a prosecution on a paper stating no public offense, will be presumed to be prejudicial. * * *"

In Borderland Const. Co. v. State of Arizona, 49 Ariz. 523, 68 P.2d 207, 208, we said "if an information does not allege a public offense advantage may be taken thereof at any time."

We must conclude that it is the settled law of this state that in a criminal case the court acquires no jurisdiction of the subject matter of an alleged offense unless the jurisdictional facts constituting the offense are set forth in the information, and that where the court is without jurisdiction of the subject matter a judgment of conviction will be reversed in this court even on plea of guilty, for jurisdiction cannot be conferred by consent.

With these principles of law to guide us we shall now analyze the information. The acts denounced as criminal are purely statutory. They relate to the driver of vehicle which collides with any person or any vehicle upon the public highways. The act is clearly regulatory and enacted under the police power for the protection of travelers upon the public highways of the state. The information in the instant case charges that defendant failed to stop and give his name and address, etc., after he "had had a collision with a vehicle driven by the said David Nunes...