APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Mr. Robert R. Weaver, for Appellant.
Mr. Joe Conway, Attorney General, Mr. Richard F. Harless, County Attorney, and Mr. Darrell R. Parker, Deputy County Attorney, for Respondent.
[56 Ariz. 173] ROSS, C.J.
Pearl Pray was convicted in the Superior Court of Maricopa County of the crime of perjury and she questions the validity of such conviction in two ways, to wit: She has appealed from the judgment of conviction, and she also asks this court to issue a writ of habeas corpus discharging her from imprisonment on the ground that her confinement and detention are unlawful. The same ground for contention, that her conviction was against and without law, is made in her petition for writ of habeas corpus and in her assignments on appeal and, since the appeal brings the whole record here, we will dispose of the case in that proceeding.
The particular point raised, and common to both proceedings, is that the provisions of the statute regulating the procedure when a demurrer to an information has been allowed were not followed, and it is contended that a conviction on an information filed without observing the terms of the statute is void.
The facts appear to be as follows: The defendant was arrested on a charge of perjury on April 22, 1939, taken before the justice of the peace of East Phoenix Precinct and, after a hearing, bound over. She was informed against on May 8, 1939, in the superior court, the case being given docket No. 15266. On June 1st the court sustained a demurrer to the information and ordered that a new information be filed within fifteen [56 Ariz. 174] days. On June 22d a new information was filed and on July 1st a demurrer to it was sustained and a new information ordered to be filed.
The county attorney thereafter, on July 13th, filed a complaint for the same offense with the justice of the peace of West Phoenix Precinct, upon which she was given a hearing and bound over, and on July 14th the county attorney filed a new information against defendant and the case was docketed as No. 15360. This information was demurred to and on September 11th the demurrer was sustained and the following order entered in the court's minutes:
"This court is of the opinion that the information herein does not allege a crime and that the defect can be corrected by filing a new information, therefore, the county attorney is ordered and directed to file a new information within fifteen days."
This direction of the court was followed and the defendant was tried on the information filed September 22d in pursuance of the court's order. Thereafter defendant filed her motion to set aside this information, giving as reasons therefor (1) that the same matter was pending in case No. 15266; (2) that before the filing of the information defendant was not legally committed by a magistrate. She also filed a demurrer to the information and pleaded in abatement the pendency of another action, to wit, No. 15266, and that the information was not filed within fifteen days after demurrer was sustained. The motion to set aside, the demurrer and the plea in abatement were overruled and defendant contends that the court's rulings were erroneous.
The statute gives two grounds for setting aside an information and provides if these are not made in proper order defendant is precluded from afterwards making such objections. Sec. 5005, Rev. Code 1928. The two grounds specified are (a) that before the filing of the information the defendant had not been legally [56 Ariz. 175] committed and (b) that the information is not subscribed by the county attorney of the county.
The record in No. 15360, the case now on appeal, does not show that defendant made any objection to the filing of the various new informations in case No. 15266, nor does the petition for the writ of habeas corpus give us any enlightenment on that point. So far as it appears, the defendant ...