[80 Ariz. 47] Robert Morrison, Atty. Cen., Wm. P. Mahoney, Jr., County Atty., of Maricopa County, Phoenix, for appellant.
Lewis, Roca, Scoville & Beauchamp, Dow Ben Roush, Phoenix, for appellee.
On March 23, 1955, a direct information in two counts was filed in the Superior Court of Maricopa County, Arizona, charging the appellee, Jay Horace Johnson, with the offenses of driving an automobile while under the influence of intoxicating liquor and reckless driving. Both counts included allegations of prior convictions. The lower court sustained a motion to quash the information and the State has appealed, urging as error that the Superior Court is and was fully authorized under the applicable statutes and constitution of this state to hear and determine the offenses charged.
The information provides:
'Count I Direct Information for Driving an Automobile While Under the Influence of Intoxicating Liquor (Prior conviction)
'Jay Horace Johnson is accused this 23rd day of March, 1955, by the County
Attorney of Maricopa County, State of Arizona, by this information, of the crime of driving an automobile while under the influence of intoxicating liquor (prior conviction) committed as follows, to-wit:
'The said Jay Horace Johnson on or about the 22nd day of March, 1955, and before the filing of this information at and in the County of Maricopa, State of Arizona, did then and there wilfully and unlawfully drive and operate a motor vehicle within the City of Phoenix, County of Maricopa, State of Arizona, while under the influence of intoxicating liquor.
'That the defendant Jay Horace Johnson was heretofore convicted on a plea of guilty in the City of Phoenix Municipal Court, County of Maricopa, State of Arizona, of the crime of Driving an Automobile While Under the Influence of Intoxicating liquor, a misdemeanor, said conviction being on the 7th day of January, 1951, and said defendant[80 Ariz. 48] being thereupon and thereafter sentenced therefor.'
Count II is similar as to the offense of reckless driving. Since the order of the court below quashed both counts of the information, what is said relative to Count I may likewise, in so far as applicable, be deemed pertinent to Count II. Before considering the appellee's basic arguments certain fundamental principles which control the disposition of this cause should be emphasized.
The offense of driving while under the influence of intoxicating liquor is defined and prohibited by Section 66-156, A.C.A.1939 as amended. It is punishable as set forth in subsection (d) thereof:
'Every person who is convicted of a violation of this section shall be punished by imprisonment for not less than 10 days nor more than 6 months, or by fine of not less than $100.00 nor more than $300.00, or by both such fine and imprisonment. On a second or subsequent conviction he shall be punished by imprisonment for not less than 90 days nor more than 1 year in the county jail, and, in the discretion of the court, a fine of not more than $1,000.00.'
While this court has never had cause to pass on the legal effect of the language used increasing the punishment for a subsequent conviction, we have held that an information which charged a prior conviction under the authority of Section 43-6111, A.C.A.1939 did not charge a new crime or different offense 'but merely set forth facts which might affect the penalty'. Valdez v. State, 49 Ariz. 115, 120, 65 P.2d 29, 31. We have re-examined this case and authorities from other jurisdictions, 5 A.L.R.2d 1101, and are of the opinion that the rule enunciated as controlling Section 43-6111 also is applicable to the subsequent violations forbidden by Section 66-156, driving an automobile while under the influence of intoxicating liquor. Consequently it is our conclusion that subsection (d) of 66-156, supra, does not create a different crime but simply provides a different punishment for repeating offenders.
Article 6, Section 6 of the Constitution of the State of Arizona and Section 19-302, A.C.A.1939, establish the jurisdiction of the Superior Court. It has concurrent jurisdiction with the justice courts over misdemeanors where the penalty does not exceed a fine of $300 or imprisonment for six months, and exclusive jurisdiction over misdemeanors where the offense is punishable by imprisonment in excess of six months or $300 fine or both. Adams v. Stanford,19 Ariz. 237, 168 P. 641; Miami Copper Co. v. State,17 Ariz. 179, 149 P. 758. ...