THE STATE OF ARIZONA (Lon Jordan, as Sheriff of Maricopa County, Arizona), Appellants,
ED GRIFFIN and NORMA GREEN, Appellees
APPEAL from an order of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Order appealed from set aside and case remanded with instructions to quash writ of habeas corpus.
Mr. Joe Conway, Attorney General, Mr. Albert M. Garcia, Assistant Attorney General; Mr. Richard F. Harless, County Attorney, and Mr. Charles B. McAlister, Deputy County Attorney, for Appellants.
Mr. Jacob Morgan, for Appellees.
[58 Ariz. 188] LOCKWOOD, C.J.
A complaint was filed in the justice court of East Phoenix Precinct, charging Edward Griffin and Norma Ruth Green with an offense in the following language:
"... that at Wickenburg Precinct, Maricopa County, State of Arizona, on or about the 14th day of March, A.D. 1940, one Edward Griffin and Norma Ruth Green did then and there commit a felony, to-wit: open and notorious co-habitation as follows, to-wit:
"The said Edward Griffin and Norma Ruth Green on or about the 14th day of March, 1940, and before the filing of this complaint at East Phoenix Precinct, County of Maricopa, State of Arizona, did then and there wilfully, unlawfully and feloniously, live in a state of open and notorious co-habitation, not being then and there husband and wife, he, the said Edward Griffin, being an adult male person, and she, the said Norma Ruth Green, being an adult female person."
The petitioners moved to dismiss on the ground that the offense was only a misdemeanor, and the complaint could only be filed in the Wickenburg Justice Precinct, which is a justice precinct of Maricopa County, separate and distinct from that of
East Phoenix. The justice of the peace refused to grant the motion, so a petition for a writ of habeas corpus was filed in the superior court of Maricopa County. The court granted the writ and discharged the petitioners, whereupon the State appealed.
There are two questions involved, one of procedure and the other of substance. It is insisted by petitioners that the State of Arizona is not a party to the proceeding, and, therefore, may not be heard on an appeal from the judgment on the habeas corpus. Subdivision 7, section 21-1702, Arizona Code 1939, reads as follows:
[58 Ariz. 189] "Judgments and orders reviewable. -- An appeal may be taken to the Supreme Court from a superior court in the following cases:
"7. From an order or judgment on habeas corpus, in which the petitioner may appeal from an order refusing his discharge, and the officer having the custody of the petitioner, or the county attorney on behalf of the state, from an order or judgment discharging the petitioner; if from the ...