STATE of Arizona ex rel. Carl D. HAMMOND, Mohave County Attorney, and Wade Church, the Attorney General, Petitioner,
KINGMAN JUSTICE PRECINCT COURT OF MOHAVE COUNTY, Nathaniel 'Joe' Erickson, Justice of the Peace, and Ora Gruninger, Justice of the Peace, Respondents.
Rehearing Granted Dec. 20, 1960. Rehearing Denied Jan. 10, 1961.
[88 Ariz. 343] Carl D. Hammond, Mohave County Atty., Kingman, Wade Church, Atty. Gen., Franklin K. Gibson, and John Vanlandingham, Asst. Attys. Gen., for petitioner.
O. Ellis Everett, Kingman, for respondent.
In this original proceeding for a writ of certiorari the State of Arizona seeks to set aside an order entered by respondent Justice of the Peace. The order, which was
issued by the Justice following a preliminary examination of two defendants charged with committing a felony, is as follows:
'After hearing the evidence, it appears to me that there is not sufficient cause to believe the defendants, * * *, are guilty of the charges here. Therefore, it is the order of the Court that the case be dismissed, and that the defendants, * * *, be and they are hereby discharged.'
The State's position is that, because the evidence at the preliminary examination showed there was probable cause that the defendants committed the crime charged, the Justice of the Peace exceeded his jurisdiction in entering the above order, and that certiorari is a proper remedy to set aside the order and hold the defendants to answer.
The State does not contend that in holding the hearing and receiving evidence the Justice of the Peace failed to comply in any respect with the Rules of Criminal Procedure (Rules 16 to 37), 17 A.R.S. The order under review was proper in form and recited the finding, prescribed in Rule 32, subdivision B, that there is 'not sufficient cause to believe the defendants * * * guilty * * *.'
Thus, the State seeks, in effect, to have this Court review the evidence and determine that the Justice of the Peace was wrong in finding no probable cause. [88 Ariz. 344] Such review is not within the scope of a writ of certiorari.
This Court has on many occasions held that certiorari tests only the jurisdiction of the tribunal whose order is under review; that is, whether the tribunal had jurisdiction of the parties and the subject matter, and had power to render the particular order; not whether its conclusion was right or wrong. See A.R.S. § 12-2001; also, e. g.: Welker v. Stevens, 82 Ariz. 233, 311 P.2d 832; Hazard v. Superior Court, 82 Ariz. 211, 310 P.2d 830; Wall v. Superior Court, 53 Ariz. 344, 89 P.2d 624; City of Phoenix v. Greer, 43 Ariz. 214, 29 P.2d 1062; State ex rel. Andrews v. Superior Court, 39 Ariz. 242, 5 P.2d 192.
Here, the Justice of the Peace had jurisdiction of the defendants and the subject matter of the preliminary examination, and had the power to issue the instant order in its precise form. It is not for this Court to act as a magistrate and conclude that the Justice of the Peace was wrong on the facts. The presumption of innocence attaching to all defendants in criminal proceedings forbids us from so weighing the evidence.
State ex rel. Mahoney v. Stevens, 79 Ariz. 298, 288 P.2d 1077, relied on by the State, is completely distinguishable from the instant case. There, the magistrate, at a preliminary examination but without hearing any evidence, dismissed a criminal complaint on the ground that the charges should have been included in a previous criminal complaint and that the State's procedure in requiring defendant to answer successive criminal prosecutions 'would eventually bankrupt him,' in violation 'of constitutional principles and the spirit of criminal law' (79 Ariz. at page 300, 288 P.2d at page 1078). This Court held that the magistrate had no power before receiving evidence to discharge the defendant and that the ground on which the complaint against the defendant was dismissed was not authorized by the Rules of Criminal Procedure. The Court granted certiorari because the magistrate had clearly acted without jurisdiction in these respects.
In the instant case the Justice of the Peace, acting as magistrate, held a hearing as required and entered an order on a ground authorized by law. His jurisdiction to do so is clear. That he may have been wrong may not be questioned by certiorari.
The State urges that certiorari is appropriate because an appeal does not lie from the orders here under review. We agree that under A.R.S. § 13-1712 the State may not appeal from an order ...