O. J. HOY, Appellant,
STATE OF ARIZONA, Respondent
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Mr. W. L. Barnum, for Appellant.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Respondent.
[53 Ariz. 443] LOCKWOOD,
O. J. Hoy, hereinafter called defendant, was on the 18th day of November, 1937, arrested by the direction of John W. Corbin, then county attorney of Maricopa county, and placed in the county jail. On the afternoon of that day, a complaint was lodged against him before Honorable M. T. PHELPS, a duly elected, qualified and acting judge of the superior court of the state of Arizona, in and for Maricopa county, sitting as a magistrate, charging defendant with having offered a bribe to Corbin, under section 4515, Revised Code of 1928,
which reads, so far as material, as follows:
"Public officer; bribery. Every person who gives or offers any bribe to any public officer with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer, is punishable by imprisonment in the state prison not less than one year nor more than fourteen years; and is disqualified from holding any office in this state...."
A preliminary examination was set for December 2d, and defendant was released upon bail. On the date set the defendant appeared before Judge PHELPS, and waived reading of the complaint and announced ready for hearing, whereupon the state introduced evidence and rested. Defendant moved for the proceedings to be dismissed, and such motion being denied, offered no evidence. Judge PHELPS then entered the following order:
"It appearing to me that the crime of Bribery, a felony, has been committed on or about the 1st day of November, 1937, in Maricopa County, Arizona, [53 Ariz. 444] and there is sufficient cause to believe O. J. Hoy guilty thereof, I order that he be held to answer the same, and that he be admitted to bail in the sum of $3500.00.
"Bail bond presented by O. J. Hoy in the sum of and that he be admitted to bail in the sum of $3500.00. $3500.00, bond approved by the Magistrate and defendant O. J. Hoy released.
"M. T. PHELPS
"Judge of the Superior Court of Maricopa County sitting as a Magistrate."
Thereafter the county attorney filed an information, the material portion of which reads as follows:
"O. J. Hoy is accused this 29th day of December, 1937, by the County Attorney of Maricopa County, State of Arizona, by this information, of the crime of Bribery, a felony, committed as follows, to-wit:
"The said O. J. Hoy, on or about the 1st day of November, in the year 1937, and before the filing of this information, at and in the County of Maricopa, in the State of Arizona, did then and there, wilfully, unlawfully, feloniously and corruptly offer a bribe, to-wit, the sum of Four Hundred Dollars in lawful money of the United States of America, to one John W. Corbin, who as said O. J. Hoy then well knew, was then and there the duly chosen, qualified and acting County Attorney of said Maricopa County, with the corrupt intent on the part of him, the said O. J. Hoy, then and there and thereby, wilfully, unlawfully, feloniously and corruptly to influence said John W. Corbin in respect to his acts, decisions, opinions, and proceedings as such County Attorney, that is to say in respect to whether he, the said County Attorney, acting in his official capacity as such, would bring about the arrest and prosecution of said O. J. Hoy for the crimes of violating sections 4671 and 4672 of the Revised Code of Arizona, 1928, by wilfully and unlawfully opening, carrying on, and conducting in said Maricopa County certain unlawful games in violationg of said code section 4672, and by wilfully and unlawfully permitting unlawful games to be played and conducted in a gambling house to be maintained and operated by said O. J. Hoy as manager thereof in said Maricopa County, in violationg of said code section [53 Ariz. 445] 4672, and with the corrupt intent on the part of him, the said O. J. Hoy, then and there and by means of said bribe, wilfully, unlawfully, feloniously, and corruptly to influence said John W. Corbin as such County Attorney to refrain unlawfully and corruptly from causing the arrest and prosecution of said O. J. Hoy for said crimes of so violating said code sections 4671 and 4672, and from in any other manner interfering with such violations by the said O. J. Hoy of said code section; it being the fact that said O. J. Hoy was then so violating and intending in the future to so violate said code section;..."
Upon the arraignment of the defendant, he moved to set aside the information on two grounds, the first being that section 4515, supra, was unconstitutional, in that it was not legally adopted; and the second, that he had not been legally held to answer by a magistrate. These motions were overruled, and defendant then demurred to the information on grounds which we shall consider later. The demurrer being overruled, he entered a plea of not guilty, and the case came on for trial on the 7th day of April, 1938, before the Honorable HOWARD C. SPEAKMAN, with a jury, which jury on the 12th day of April returned a verdict ...