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Sheridan v. Superior Court In and For Pinal County

Supreme Court of Arizona

April 25, 1962

Pete SHERIDAN, Petitioner,
v.
SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF PINAL, and Honorable R. Porter Murry, one of the Judges presiding, Respondents.

In Banc.

[91 Ariz. 212] Cox & Sowers, Eloy, for petitioner.

E. D. McBryde, Pinal County Atty. Lloyd D. Brumage, Deputy County Atty., for respondents.

JENNINGS, Justice.

The petitioner, Pete Sheridan, applied for a writ of prohibition, directed to the Superior

Page 950

Court of the State of Arizona, in and for the County of Pinal, and the Honorable R. Porter Murry, then presiding, prohibiting said court and judge, hereinafter called respondent court, from proceeding further in criminal cause No. 3993, now pending against petitioner in respondent court. This Court thereupon issued an alternative writ of prohibition.

The facts necessary for a determination of this proceeding may be stated as follows: On November 27, 1961 a criminal complaint was filed in the Superior Court of the State of Arizona, in and for the County of Pinal, wherein petitioner was charged with violation of A.R.S. § 13-432, a misdemeanor. [1] On the same date Judge T. J. Mahoney, Judge of the Superior Court, issued a warrant of arrest against the petitioner and a search warrant for a search of the premises of the Silver Dollar Bar operated by petitioner.

Sometime on the night of November 27, 1961 petitioner was arrested and a search made of the Silver Dollar Bar which resulted in certain personal property of petitioner being seized. Immediately after the arrest, Judge Mahoney ordered petitioner released on his own recognizance.

On December 5, 1961 by order of the superior court, petitioner was ordered to appear before Judge Mahoney. Prior to his appearance, petitioner filed a motion to quash the search warrant and the criminal complaint. The motion was denied by Judge Mahoney on December 13th. Petitioner thereupon entered a plea of not guilty and was granted twenty days to file any additional motions which he might deem necessary. Petitioner waived the statutory period for trial and trial date was set for February 2, 1962.

Petitioner appeared before the Honorable R. Porter Murry, Judge of the Superior Court, (Greenlee County) presiding at the Pinal County Superior Court on January 29, 1962 and moved that the criminal action against him be dismissed. He also moved the court, the Honorable R. Porter Murry presiding, not to proceed with the hearing on petitioner's motion to quash the search warrant. The motions were denied.

[91 Ariz. 213] It is the petitioner's contention that a criminal action and proceeding was brought in the Pinal County Superior Court on November 27, 1961 by complaint and the issuance of a warrant; that further proceedings were had wherein petitioner was held to answer for an offense on December 13, 1961; that under the provisions of Article 2, section 30, Arizona Constitution, A.R.S., [2] it is mandatory that a criminal prosecution in the superior court be by information or indictment; [3] that no information has been filed, nor indictment returned, and the thirty day period, as required by Rule 236, Arizona Rules of Criminal Procedure, 17 A.R.S. [4] has elapsed, and therefore the criminal prosecution against the petitioner should be dismissed.

The Pinal County Attorney's office refused to file an information. It was their position that from the moment the complaint was filed in the case, the respondent

Page 951

court was acting as a magistrate and not in the capacity of a court of record and therefore, the rules of criminal procedure applicable to superior courts had no application. This was the basis upon which the court, with the Honorable R. Porter Murry presding, denied petitioner's motion to dismiss.

The respondent court expounds the proposition that when a court exercises jurisdiction which is concurrent with that of an inferior court, [5] it acts under precisely the same authority as the inferior court. Doggett v. Johnson, 72 Mont. 443, 234 P. 252 (1925). Based thereon, the respondent court contends that it was sitting as a justice or magistrate court, and would have been in error to have required the filing of a criminal information. [6]

With such contention we cannot agree. A judge of the superior court is a magistrate, [7] and therefore, under the provisions of Rule 1, Arizona Rules of Criminal[91 Ariz. 214] Procedure, [8] criminal actions may be commenced before any superior court judge. However, magistrates have basically only three duties: Filing criminal complaints and issuing warrants of arrest; issuing search warrants and following certain prescribed procedure in relation ...


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