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State v. Dunivan

Supreme Court of Arizona

February 23, 1954

STATE
v.
DUNIVAN.

[77 Ariz. 43] Ross F. Jones, Atty. Gen., Robert C. Stubbs and Irwin Cantor, Asst. Attys. Gen., William P. Mahoney, Jr., County Atty. of Maricopa County, Phoenix, for appellant.

W. T. Choisser, Phoenix, for appellee.

PHELPS, Chief Justice.

This is an appeal by the State of Arizona from an order of the superior court of Maricopa County entered on July 16, 1953, quashing an information on file in the above-entitled cause charging defendant with the crime of offering and giving a bribe to one Lyle Pierce, a jockey, in connection with a horse race in a racing meet in the county of Maricopa, conducted under the provisions of the statutes of the state of Arizona.

Defendant was originally charged with the above offense on February 27, 1953, when a complaint against him was filed in West Phoenix precinct justice court. Defendant was held to answer to the superior court and on April 1 thereafter an information, criminal docket No. 24136, was filed in that court charging defendant with bribery under the provisions of section 73-1609 to 73-1620, A.C.A.1939, Cum.Supp.1952. Upon motion of defendant this information was quashed by the Honorable Henry S. Stevens on the 4th day of May following, upon the ground that no evidence was adduced before the committing magistrate that the race in question was to be conducted pursuant to a license or permit granted under the laws of the state and particularly under the provisions of the sections of the statute above mentioned. The court at that time ordered the county attorney to file a new information in the superior court within 15 days from the date of the order.

On said date a new criminal complaint was filed in West Phoenix justice court charging the same offense and after a hearing had on May 18, defendant was held to answer to the superior court on said bribery charge.

On May 19 an information was filed in the superior court, criminal docket No. 24299, again charging defendant with

Page 1078

bribery and again defendant moved to quash the information. This time the motion was based upon the ground that the [77 Ariz. 44] court was without jurisdiction to entertain it for the reason that there was then pending in the superior court cause No. 24136 in which defendant had theretofore been legally committed to the superior court upon the same identical charge and that the information on that cause, having been quashed and the county attorney having been ordered to file a new information therein within 15 days pursuant to section 44-1013, A.C.A.1939, cause No. 24136 was still pending and that the court was without jurisdiction to entertain the second criminal charge.

The motion to quash was denied on June 13 by the Honorable Nicholas Udall. Date of arraignment of defendant after a couple of continuances was finally fixed for the 22nd day of June at which time defendant objected to further proceedings in the matter upon the ground stated in the motion to quash. The cause was thereupon set for trial for July 16. On the date of trial defendant renewed his motion to quash before the Honorable Ralph Barry who granted said motion, vacated the trial order and ordered the county attorney to file a third information in said cause within 15 days therefrom. From this order the state appeals.

The state has presented three assignments of error, all of which are based upon the action of the trial court in quashing the information:

1. It is the position of the state that the information was filed in the correct manner and pursuant to the order of the court issued on May 4, 1953;

2. That the motion had previously been denied by the court, the Honorable Nicholas Udall presiding, and that no good cause for renewing of the motion was shown by the defendant;

3. Upon the ground that the information quashed was a valid and sufficient information.

A careful study of the statutes and of the decisions of this court convinces us that the court erred in quashing the information in this case. We find no authority in the statutes authorizing the quashing of an information either upon the ground that there was no evidence before the committing magistrate justifying defendant's commitment to the superior court on a charge of bribery or upon the ground that the previous cause of action, No. 24136, in which the information had theretofore been quashed was still pending in the superior court and that the court was without jurisdiction to entertain the second information filed in the instant case.

Section 44-1005, A.C.A.1939, provides the only grounds upon which an information may be quashed and it contains neither of the ...


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