Turley v. State, Criminal 821

• Decision Date: 29 June 1936
• Docket Number: Criminal 821
• Citation: 59 P.2d 312,48 Ariz. 61
• Parties: DOROTHEA IRENE TURLEY, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

59 P.2d 312

48 Ariz. 61

DOROTHEA IRENE TURLEY, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 821

Supreme Court of Arizona

June 29, 1936

APPEAL from a judgment of the Superior Court of the County of Apache. P. A. Sawyer, Judge. Judgment reversed and cause remanded, with instructions.

Mr Greg Garcia, for Appellant.

Mr John L. Sullivan, Attorney General, and Mr. Elmer C. Coker Assistant Attorney General, for Respondent.

OPINION

LOCKWOOD, C.J.

Dorothea Irene Turley, hereinafter called defendant, was informed against by the county attorney of Apache county, for the crime of assault with intent to commit murder. She was tried before a jury which returned a verdict of guilty on the 10th day of June, 1934, and judgment was duly pronounced upon said verdict, sentencing her to a term of not less than ten nor more than twenty-five years in the state prison. After the motion for new trial was made and overruled, this appeal was taken.

In order that we may consider the appeal the better, we state the material facts of the case as they were developed by the state's evidence upon the trial, for since the jury returned a verdict of guilty, we must assume it construed any conflicting evidence in favor of the state's theory of the case.

Defendant and one Ernest J. Turley, her husband, a retired gunner's mate of the United States Navy, came to the Cross Bar Ranch in Apache county during the month of July, 1933, in hope that residence there might improve the health of the former. There were two children in the Turley family: Mattie, a daughter, about the age of fifteen, and David, a son, about fourteen. Shortly after arriving, the Turleys became acquainted with the Pearce family, living near by. Defendant and Kent Pearce, the oldest son of the Pearce family, were particularly friendly, so must so that they made many auto trips around the country together, in the vicinity of the Cross Bar Ranch, for pleasure purposes. Their usual companions on such trips consisted of Mattie Turley and one Pollard Wiltbank, although other young men in the vicinity were occasionally with them. Defendant and young Pearce became rather affectionate on some of these rides, and the former had several times informed Mrs. Walk, a close neighbor, that she intended to marry Pearce. There had been considerable friction between defendant and her husband, so much so that on at least two occasions she remarked, in his presence, that she ought to kill him. She had repeatedly complained to her daughter Mattie of her husband's conduct, and finally the two made plans for carrying her threats into execution. On the 18th day of November, Ernest Turley and Mattie had gone to milk some cows, and while returning to the house, Mattie, who was walking behind her father, shot him twice in the hip, with a double-barrel shotgun. He was taken to a hospital in Apache county, and later removed to one in San Diego, where he died about a month after the shooting.

In the meantime, an investigation of the circumstances of the shooting was commenced by the authorities of Apache county, and a complaint, charging defendant with assault with intent to commit murder, was filed against her, signed by Marion Haws, as sheriff of Apache county. A preliminary hearing on this complaint was held on the 12th day of December, at which hearing Ernest Turley, the wounded man, testified in behalf of the state. Defendant was held to answer to the superior court, and on the 8th day of January, the information upon which she was tried was filed. The case was later tried, and a verdict of guilty as charged was returned, whereupon she was duly sentenced.

This presents an outline of the facts shown by the state's evidence, but we shall refer to various details of the evidence as it may be advisable during the course of the trial.

There are some thirty-two assignments of error which we shall consider in accordance with the questions of law raised thereby. The first two raise the issue as to whether defendant had been legally committed by the magistrate before the information upon which she was tried was filed. That such a commitment must be made under the law of Arizona is, of course, undisputed. Quen Guey v. State, 20 Ariz. 363, 181 P. 175; art. 2, § 30, Const. of Arizona.

The objection which defendant raised to the complaint and commitment, which were admittedly regular upon their face, is that the complaint upon which the warrant of arrest was issued, and upon which the preliminary hearing and the commitment were based, was signed by a person who acted merely on information and belief and who had no actual knowledge of the facts which would sustain the complaint. It is urged that under the Fourth and Fifth Amendments to the Constitution of the United States, before a warrant of arrest is issued, a complaint must be made, and such complaint must be signed and verified by someone who has personal knowledge of the facts set forth therein, and not by one who merely acts on information and belief, and that the failure to observe this rule not only violates these amendments, but denies a defendant the equal protection of the laws granted by section 1 of the Fourteenth Amendment to the Constitution of the United States, and also violates section 4 of article 2 of the Bill of Rights contained in the Constitution of Arizona. The complaint which was signed by the sheriff of Apache county and duly verified, reads as follows:

"Before me, Frank M. Whiting, Justice of the Peace of St. Johns No. 2 Precinct, in and for the County of Apache, State of Arizona, on this 29th day of November, A.D. 1933, personally appeared Marion O. Haws, sheriff of Apache County, Arizona, who on oath deposes and says: That at and in the County of Apache, State of Arizona, and on or about the 18th day of November, A.D. 1933, one Dorothea Irene Turley, the defendant named herein, did then and there commit an assault with intent to kill, a felony, committed as follows, to-wit:

"That the said Dorothea Irene Turley, on or about the 18th day of November, A.D. 1933, and before the filing of this complaint, at and in the County of Apache, and State of Arizona, did then and there wilfully, knowingly, unlawfully, feloniously and with malice aforethought commit an assault with a certain deadly weapon, towit: with a loaded double barreled shotgun, in and upon the person of another, to-wit: In and upon the person of one Ernest Turley, a human being, with the intent then and there to kill and murder the said Ernest Turley.

"All of which is contrary to the form, force and effect of the statutes in such cases made and provided, and against the peace and dignity of the State of Arizona.

"Wherefore, affiant prays that a warrant be issued for the arrest of the said defendant, and that she be dealt with as the law directs.

"[Signed] MARION O. HAWS."

It will be observed that this complaint is definite and specific in its allegations of the essential elements of the crime of assault with intent to commit murder, and nowhere upon its face does there appear even a suggestion that its signer did not know personally the facts which he swore to be true. Defendant, however, on a motion to quash the information on the ground that no legal commitment had been made, offered to prove by parol evidence that Haws was the sheriff of the county and had no knowledge in regard to the crime charged except through information and belief. The court denied permission to offer evidence on this point. A precisely similar question was raised in City of Holton v. Bimrod, 60 Kan. 860, 58 P. 558, and the Supreme Court of Kansas said:

"The original complaints upon which warrants were issued by the police judge for appellants' arrest were sworn to positively, and not on information and belief. The appellants sought to introduce testimony showing that the prosecuting witnesses had no personal knowledge of the facts stated in the complaints, for the purpose of proving want of probable cause. Such testimony was not entitled to consideration. The verifications being positive in form, the requirements of the bill of rights were wholly satisfied.

"The secret reasons of the prosecuting witnesses for making the complaints could not be inquired into for the purpose of invalidating the warrants. Sufficient probable cause was made to appear to the magistrate for the issuing of the warrants by the charges made and the positive form of the verifications."

We have found no cases holding to the contrary. Defendant has cited to us several federal cases which she contends supports her contention. Johnston v. United States, (C.C.A.) 87 F. 187; Ex parte McCabe, (D.C.) 46 F. 363, 12 L.R.A. 589; United States v. McCunn, (D.C.) 40 F.2d 295.It is true that these three cases support the rule that a complaint cannot be made on information and belief, but in each one it appeared from the face of the complaint that the person who signed it was acting without personal knowledge of the facts, a situation very different from that involved in the present case. We hold, therefore, following the rule laid down by the Supreme Court of Kansas, that the direct and positive allegations of the complaint herein could not be shown by parol evidence to have been in reality made on information and belief.

But even assuming that it might be so questioned, is the rule laid down by the federal courts binding upon this court? The Fourth and Fifth Amendments to the Constitution of the United States have been repeatedly and universally held to limit action by the federal government, and not to impose restrictions upon the various states. State statutes changing the right of jury trial, and permitting prosecution by information rather than indictment, and others of similar import, have been...