[88 Ariz. 402] Gibson & Gibson, Phoenix, for petitioner.
Charles C. Stidham, County Atty., Phoenix, Darrell F. Smith, Deputy County Atty., Mesa, for respondent.
This is an original petition for a writ of habeas corpus to obtain the release of petitioner from the Maricopa County jail,
where he is being held, without bail, for trial.
The principal issue before the Court is whether the evidence adduced at the preliminary hearing justified the magistrate in concluding there was 'probable cause' that petitioner was guilty of the offense with which he was charged. Under our statutes, 17 A.R.S. Rules of Criminal Procedure, Rule 33, and § 13-2012, the magistrate shall hold a defendant for trial if he has no jurisdiction, and if he concludes upon preliminary hearing there is probable cause that defendant is guilty of the offense charged. He is also required to discharge defendant if he finds such probable cause does not exist. This Court recently stated, in discussing the function of the magistrate, that:
'* * * a magistrate conducting a preliminary hearing should be mindful that his duty is not to determine the ultimate guilt or innocence of a defendant, or determine the degree of the crime charged, but only to determine whether there is probable cause to believe defendant guilty of the offense charged, and leave to the trial tribunal the final determination of the application of the law to the facts and leave to the jury the question as to whether defendant is guilty of the offense charged or of an included offense.' Application of Williams, 85 Ariz. 109, 117-118, 333 P.2d 280, 285-286.
[88 Ariz. 403] The record discloses that about 1:30 A.M. on the morning of June 11, 1960, petitioner approached Jesse Williams and asked him for a gun. Williams told petitioner that he did not have a gun, but that Leonard Phillips had one. Petitioner then asked Williams to get the gun from Phillips and shortly thereafter, Phillips returned with a gun which he gave to the codefendant, Melvin Dixon. Thereupon the petitioner, Williams, Phillips, and Dixon went beside the fire house where Dixon test-fired the gun. After the gun was test-fired, the group walked over to the Oasis Cafe. Williams testified that a short time later, while he was talking with his cousin in front of the Broadway Cafe, he heard a shot, and as he ran, he saw upon looking into the Broadway Cafe, the victim clutching a chair, the codefendant Melvin Dixon standing up, and petitioner sitting down in a booth.
Petitioner is here charged with first-degree murder under A.R.S. § 13-451, § 13-452, and § 13-453. The State concedes petitioner did not do the actual killing. It is the State's position, however, that petitioner 'aided and abetted' codefendant, thus rendering himself a 'principal' to the crime within the meaning of A.R.S. § 13-139, which provides:
'All persons concerned in the commission of a crime whether it is a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission * * * are principals in any crime so committed.'
There is a serious question as to whether the magistrate was justified in deciding there existed probable cause that petitioner aided and abetted, especially in view of this Court's statement as to what acts are necessary to render one a principal.
'The 'aiding' or 'abetting' contemplated by the statute is some positive act in aid of the commission of the offense--a force physical or moral joined with that of the perpetrator in producing it. The aider or abettor must stand in the same relation to the crime as the criminal, approach it from the same angle, touch it at the same point. * * *' State v. Martin, 74 Ariz. 145, 151, 245 P.2d 411, 414 citing for the quoted proposition Baumgartner v. State, 20 Ariz. 157, 178 P. 30.
Our cases and statute make it clear that in order to be guilty as a principal, one must possess criminal intent. A.R.S. § 13-131; Acker v. State, 26 Ariz. 372, 379, 226 P. 199, 201.
The crux of the problem depends upon what is meant by the ...