Vigileos v. State, 6500

• Decision Date: 30 September 1958
• Docket Number: No. 6500,6500
• Citation: 330 P.2d 116,84 Ariz. 404
• Parties: Application of John C. VIGILEOS For a Writ of Habeas Corpus, Appellant, v. The STATE of Arizona, Appellee.
• Court: Arizona Supreme Court

Page 116

330 P.2d 116

84 Ariz. 404

Application of John C. VIGILEOS For a Writ of Habeas Corpus, Appellant, v. The STATE of Arizona, Appellee.

No. 6500.

Supreme Court of Arizona.

Sept. 30, 1958.

Martin S. Rogers, Tucson, for appellant.

Robert Morrison, Atty. Gen., and Frederick E. Kallof, Asst. Atty. Gen., for appellee.

E. R. THURMAN, Superior Court Judge.

This is an appeal from an order entered in favor of the State of Arizona, appellee, and against the appellant John C. Vigileos, dismissing appellant's petition for a writ of habeas corpus and quashing said writ.

On April 26, 1956 the appellant, who was then approximately sixteen and one-half years of age and charged with a felony, appeared before the juvenile court of Pima County and the judge thereof refused to suspend criminal prosecution of appellant as an adult. The following day a criminal complaint was filed in the justice court charging that on or about April 23, 1956 appellant did murder one Ray Garcia, a human being, while in the act of committing burglary.

A preliminary hearing on this complaint was had and at the conclusion thereof, after both the state and defense had rested, the state, based upon the evidence already adduced, moved to add to the complaint an additional charge, to-wit: 'burglary, first degree, that the said John C. Vigileso, (et als.) did enter a building * * * with intent to commit a burglary, all in violation of A.R.S. [s] 13-301.' This motion was granted over the strenuous objections of defense counsel. Subsequently, appellant was held to answer to superior court on charges of first degree murder and first degree burglary and was committed to the custody of the sheriff of Pima County. No further or separate preliminary hearing was ever held on the specific charge of first degree burglary.

An information, containing two counts, charging appellant with first degree murder and first degree burglary, was timely filed and appellant was arraigned thereon. Motions for separate trial, admission to bail and to quash the information were made by appellant and denied by the court before appellant entered his plea of not guilty.

Appellant failed to complain at or prior to his arraignment and plea that he had not been granted a preliminary hearing on the first degree burglary charge.

Thereafter, a motion by appellant that he be transferred to the juvenile detention ward was denied. At the conclusion of the trial the jury returned a verdict of 'not guilty' of the charge of first degree murder but 'guilty' of the charge of rist degree burglary. On August 1, 1956 appellant was sentenced to be confined in the state prison at Florence, Arizona, for a period of not less than seven or more than ten years.

During the entire period from date of appellant's commitment to the state prison until he reached his eighteenth birthday (November 18, 1957), appellant was confined in the same section of the prison with adult male prisoners with whom he worked and associated.

Subsequently, in February of 1957, a petition for a writ of habeas corpus was filed by the appellant in the superior court of Pinal County, and hearing upon this petition--which was later amended--was had on March 9, 1957. The amended petition urged the following grounds as a basis for petitioner's discharge: (a) That appellant is unlawfully confined in the Arizona State Prison because he is confined in the same section of the prison in which adult prisoners are confined, contrary to the provisions of Article 22, Section 16, of the Constitution of Arizona, A.R.S.; (b) That the commitment under which the appellant is held in prison is unlawful in that he was convicted of first degree burglary without first having been granted a preliminary hearing on such charge and without having waived the same; and (c) That appellant is unlawfully confined in the state prison because he was unlawfully committed to the state prison in that the judicial proceedings which resulted in appellant's conviction, sentence and commitment were unlawful as the juvenile court had no authority to order appellant to stand trial as an adult.

Attorney for appellant has presented three assignments of error for this court to consider, which are substantially the same as those stated.

In answer to appellant's first point the court agrees that it is unlawful to so confine any minor under the age of eighteen years, under Article 22, Section 16, of the Constitution of the State of Arizona, which provides:

'It shall be unlawful to confine any minor under the age of eighteen years, accused or convicted of crime, in the same section of any jail or prison in which adult prisoners are confined. Suitable quarters shall be prepared for the confinement of such minors.'

However, the manner in which the appellant is confined within the state prison is not a matter to be determined by a writ of habeas corpus. The following text in 25 Am.Jur., Habeas Corpus, Section 28, states the law simply and with clarity 'Habeas corpus is not a corrective remedy, but is concerned only with defects in a proceeding which operate to render a judgment rendered, or process issued, therein absolutely void. It...