P. L. SMITH, Justice of the Peace, Peoria Precinct, Maricopa County, State of Arizona, Appellant,
E. J. WARREN, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. John P. Clark, Judge. Judgment vacated and set aside.
Mr. John W. Corbin, County Attorney, Maricopa County, and Mr. Lin H. Orme, Jr., Deputy County Attorney, for the Appellant.
Messrs. Cox & Moore, for Appellee.
[52 Ariz. 239] ROSS, J.
This case has its uncommon features. The appellee, E. J. Warren, on or about June 19, 1937, was formally charged in Peoria Precinct, Maricopa County, with drunk driving upon the public highways in that precinct. On June 21st, he appeared by attorney and entered a plea of not guilty and
at the same time orally asked for a change of venue, promising the justice of the peace "to mail out an affidavit of bias." On June 24th the justice of the peace, not having any word from appellee's attorney, disqualified himself and transferred the case to the justice court of Tolleson precinct. On July 6th the latter court set the case for trial on July 13th. On this date appellee appeared by attorney and objected to the court's jurisdiction. The objection being overruled, he announced ready for trial and thereafter a jury was impaneled, evidence introduced and the case having been considered by the jury it returned a verdict of guilty. On July 14th defendant was sentenced by the court to serve ninety days in the county jail.
On July 13th, or the day before appellee was sentenced, he prepared and verified a petition for writ of habeas corpus and filed it in the superior court of Maricopa county on July 14th. On the same day the court, Honorable G. R. RODGERS acting, ordered that the writ issue returnable before the Honorable E. W. McFARLAND, Judge of the Superior Court of Pinal County, sitting in the said superior court of Maricopa county, at 4 o'clock in the afternoon on July 14th. The ground alleged in the petition for writ of habeas corpus was
"That no legal transfer or change of venue of said action was had... and that said Justice of the Peace of Tolleson Precinct did not have jurisdiction to try said petitioner for said offense."
[52 Ariz. 240] Upon a hearing, Judge McFARLAND granted the writ of habeas corpus and directed the sheriff to discharge appellee from custody.
Thereafter appellant Smith, the Justice of the Peace of Peoria Precinct, set the case down for trial as though no change of venue had been granted and no trial ever had in Tolleson precinct.
Appellee thereupon filed a petition for writ of certiorari, entitled in the same case and court as the habeas corpus proceeding, reciting all the foregoing facts, and asked that appellant Smith be enjoined from trying him. The ground upon which he based his right for certiorari is that he had theretofore been tried and convicted in Tolleson precinct for the identical offense.
In his answer to the petition appellant Smith alleges that the petition fails to state any facts showing he is acting in excess of or without jurisdiction, and further that appellee's petition showed that he had a plain, speedy and adequate remedy by way of appeal. The petition and answer coming on for hearing in the superior court of Maricopa county, the Honorable JOHN P. CLARK, Judge of the Superior Court of Navajo County sitting, enjoined the appellant Justice of the Peace of Peoria Precinct from trying appellee on the charge of drunk driving, on the ground that he had been put in jeopardy by reason of his trial and conviction in Tolleson precinct and had partly performed the judgment and sentence of that court by being imprisoned. The county attorney and the justice of the peace, being dissatisfied with the court's disposal of the case, have appealed.
From the statement of the facts, it is seen the appellee asked for a change of venue and it was granted. The territorial jurisdiction of a justice of the peace is of certain misdemeanors committed in his precinct and of certain misdemeanors committed in precincts adjoining his, when the justice of any such [52 Ariz. 241] precinct is absent therefrom or for any reason is unable to act. Section 5224, Rev. Code 1928. Under section 5229, Id., if a defendant makes an affidavit that he has reason to believe and does believe that he cannot have a fair and impartial trial before the ...