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Oswald v. Martin

Supreme Court of Arizona

October 2, 1950

OSWALD
v.
MARTIN

Writ quashed and petitioner remanded.

Herbert Mallamo, of Phoenix, for petitioner

Bryce H. Wilson, County Attorney, and John L. Donahue, Jr., Deputy County Attorney, of Tucson, for respondent.

Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concur.

OPINION

Udall, Justice.

Page 633

[70 Ariz. 393] Petitioner Ernest A. Oswald made an original application to this court for a writ of habeas corpus alleging that he was unlawfully restrained of his liberty by the respondent who was holding him in the Pima County jail. The writ was issued directed to Sheriff Jerome P. Martin of Pima County, who produced the body of petitioner before us on the date appointed, together with his response to the writ, appended to which was a certified copy of the complete record in the criminal case of [70 Ariz. 394] State of Arizona v. Oswald, including the commitment under which he was being held.

We granted oral argument and being then fully advised in the premises made a minute order (one justice dissenting) quashing the writ of habeas corpus and remanding the petitioner to the respondent for the serving of the sentence imposed. It was stated that the written decision required by the Constitution of Arizona, Art. 6, Sec. 2, would follow in due course. We now formally state our reasons for quashing the writ.

It appears from the record before us that petitioner was charged in Justice Court Precinct No. 1 of Pima County on four misdemeanor counts. He was arraigned, pleaded not guilty, and after a jury trial was convicted on two counts, which included the crime of reckless driving under Sec. 66-403, ACA 1939. For this offense he was sentenced to pay a $ 100 fine and serve 15 days in the county jail. An appeal was taken to the superior court where the case was tried de novo before the court sitting with a jury, which resulted again in conviction on the reckless driving charge. Following a denial of his motion for a new trial and in arrest of judgment, the court imposed sentence of a fine of $ 150 and 20 days in the county jail. Petitioner has no remedy by appeal from this judgment. Sec. 44-2507, ACA 1939, State v. Guthrie, 66 Ariz. 41, 182 P.2d 109, and cases cited therein.

Petitioner alleged generally as the basis for his application for this ancient writ that he was being deprived of his liberty without due process of law and in violation of the equal protection clauses of both the federal and state constitutions. Specifically, he asserted that the court had committed fundamental error, depriving him of a substantial right, in failing to follow the mandatory provisions of the constitution and statutes of this State with

Page 634

reference to the charging of a jury orally without a court reporter being present to take down, and if necessary, later transcribe said instructions, or else having said instructions written out ...


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