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State v. Lubetkin

Supreme Court of Arizona

November 15, 1954

STATE of Arizona, Appellee,
v.
Harry LUBETKIN, Appellant.

Page 521

[78 Ariz. 93] W. H. Chester, an Frank A. Howard, Phoenix, for appellant.

Ross F. Jones, Atty. Gen., Roderick M. Jennings, Asst. Atty. Gen., for appellee.

PHELPS, Chief Justice.

On July 14, 1953, a complaint was filed before a magistrate in Precinct No. 2, Pima County, Arizona, against defendant-appellant charging that he did then and there wilfully and with intent to defraud one Sherman Richardson, make, draw, utter and deliver to the said Richardson a check on the University Office of the Valley National Bank at Tucson, Arizona, for the payment of money knowing at the time there were insufficient funds in or credit with the bank to meet such check upon its presentation. The complaint was sworn to before Peter Sownie, acting justice of the peace, on May 27, 1953. The said Peter Sownie is city magistrate of the city of Tucson.

Section 44-101, A.C.A.1939, provides that:

'A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense. The chief justice and the judges of the Supreme Court, the judges of the superior court, justices of the peace and police magistrates in cities and towns are magistrates.'

Under the provisions of section 16-1101, A.C.A.1939, the court over which a city magistrate presides has concurrent jurisdiction with justice courts in the precincts where said city or town is established, over all violations of the laws of the state committed within the limits of said city or town. The order holding defendant to answer to the superior court was signed by Clark H. [78 Ariz. 94] Johnson, justice of the peace of Precinct No. 2 on the same date the complaint was filed.

On July 15, 1953, the county attorney for Pima County filed in the superior court of that county an information containing eight counts charging defendant with having on different dates during the early part of May wilfully and with intent to defraud the persons named in the respective counts by making, drawing, uttering and delivering thereto a check on the University Office of the Valley National Bank at Tucson, Arizona, for the payment of money knowing at the time that there were insufficient funds in the bank or credit with said bank to meet said check in full upon its presentation, all in violation of section 43-2613, A.C.A.1939.

The record brought into this court does not include a complaint in the justice court or order holding defendant to answer to the superior court on Counts I to VII inclusive of the information but the minute

Page 522

entries of the superior court of July 29 show that upon stipulation of the attorneys for the state and the defendant cases Nos. 8877 and 8876 were consolidated for all future purposes and both cases were agreed to be heard in Division No. 2 as set. The information filed in the superior court and brought here bears number 8876-II. This is the number given by the clerk of the superior court to the complaint hereinabove mentioned as having been filed in the justice court and the order of commitment upon which Count No. VIII of the information is based.

The defendant was duly arraigned and entered pleas of not guilty as charged in the information. Upon trial defendant was convicted on each count and sentence and judgment was pronounced thereon. Defendant appeals from said judgment of conviction and from the order denying his motion for a new trial.

Counsel for defendant have presented nine assignments of error for our consideration which we will consider in the order presented.

Assignment No. 1 charges that the court erred in entertaining defendant's plea on an information containing eight separate counts where the transcript of the preliminary hearing discloses that defendant was bound over on only one of said counts, and further upon the ground that the complaint is signed by an 'acting' justice of the peace not qualified by law to administer the oath under such complaint, and lastly, upon the ground that no preliminary hearing was had or waived on seven of the counts in the information.

In answer to the assertion that no preliminary hearing has been had or waived, section 44-503, A.C.A.1939, provides in part that:

'* * * The fact that a preliminary examination was neither had nor waived (in offenses punishable by death or imprisonment in the penitentiary)[78 Ariz. 95] shall in no case invalidate any information in any court unless the defendant shall objection to such information because of such fact before pleading to the merits.'

The record nowhere discloses any objection by counsel in the trial court because of the fact that no preliminary hearing was held before a magistrate in Counts I to VII inclusive of the information, nor was any motion made to quash said information based upon that ground. In such event under the provisions of section 44-1005, A.C.A.1939, defendant's remedy was by motion to quash. Having failed to present such motion to the court defendant has waived any error resulting from a failure, if any, to hold a preliminary hearing in the justice court. Roman v. State, 23 Ariz. 67, 201 P. 551. In the recent case of State v. Coursey, 71 Ariz. 227, 225 P.2d 713, the identical question here presented was decided in language so clear that it could not be misunderstood.

It is next claimed that the city magistrate before whom the complaint upon which Count VIII of the information is based was without authority to administer an oath. This is wholly without merit as evidenced by sections 44-101 and 16-1101, supra.

It is next urged that the transcript of the preliminary hearing discloses that defendant was held to answer only on one count of the information. Counsel nowhere charges that defendant was not in fact held to answer on the other seven counts thereof. He merely says the record does not show this to be a fact. In the absence of a showing to the contrary it will be presumed that the magistrate and the county attorney performed their official duties under the law and under their oath of office. It is a well-settled rule that every public officer does his duty. Donaldson v. Sisk, 57 Ariz. 318, 113 P.2d 860; Chenoweth v. Budge, 16 Ariz. 422, 145 P. 406; Quen Guey v. State, 20 Ariz. 363, 181 P. 175.

The same question presented in assignment No. 1 is also presented in assignment No. 2, and of course the rule laid down in State v. Coursey, supra, is equally applicable and fully answers the contention of defendant.

It is next claimed in assignments 3, 4 ...


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