Burke v. SUPERIOR COURT, IN AND FOR COUNTY OF PIMA

HATHAWAY, Judge.

Michael Burke has petitioned this court for a writ of prohibition, praying that the respondent court and the Honorable Porter Murry, a judge thereof, be prohibited from proceeding with the arraignment, trial setting and trial on an indictment returned by the grand jury, since he was denied a preliminary hearing.

On January 20, 1966 the grand jury of Pima County indicted Burke for aggravated assault. He moved the respondents (1) to order that a time and place be set for a preliminary hearing and (2) that the respondent judge cause to be transcribed all testimony given before the grand jury and order the same to be made available to petitioner and his counsel. On February 8, 1966 the motions were denied and an order to that effect was entered in the court’s minutes.

The petitioner contends that the lower court exceeded its jurisdiction when it denied his request for a preliminary hearing and required him to proceed to plead to the charge. Although we have issued an alternative writ of prohibition, certiorari is the appropriate remedy for review of a lower tribunal’s completed acts in excess of its jurisdiction. Nonetheless we will consider the matter as though brought by certiorari. State ex rel. Ronan v. Superior Court, 95 Ariz. 319, 321, 390 P.2d 109 (1964).

The petitioner contends that the refusal to grant him a preliminary hearing denied him equal protection of the laws as guaranteed by the Fourteenth Amendment to the Constitution of the United States. He argues that despite statutory silence with regard to a preliminary hearing when one is accused by indictment, the existence of optional procedures of prosecution requires that a preliminary hearing be granted when timely requested, otherwise he would be denied equal protection of the laws.

Article 2, Section 30 Arizona Constitution, A.R.S. provides:

“No person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; no person shall be prosecuted for felony by information without having had a preliminary examination before a magistrate or having waived such preliminary examination.”

Rule 78, Arizona Rules of Criminal Procedure, 17 A.R.S., provides:

“A. Every felony * * * shall be prosecuted by indictment or information.” Rule 79, Arizona Rules of Criminal Pro-

cedure, provides:

“No information may be filed against any person for any offense which may be punished by death or imprisonment in the state prison until such person has or waives a preliminary examination.”

Thus we see that the Arizona Constitution and the Arizona Rules of Criminal Procedure require a preliminary examination, or waiver thereof, only in prosecution by information. A preliminary examination is not required in the absence of statute since such proceeding was unknown to the common law. State v. Spears, 76 Wyo. 82, 300 P.2d 551, 555 (1956). Petitioner contends, however, that the right to a preliminary hearing is a substantial right and is of substantial benefit to a person charged with crime, citing State v. Essman, 98 Ariz. 228, 403 P.2d 540 (1965). He concedes that if all persons charged with felonies by information were not entitled to preliminary hearings by law, then he would likewise not be entitled to one when charged by grand jury indictment. He argues that to have equal protection of the laws, he is entitled to a preliminary hearing, since a preliminary hearing is a substantial protection of the law for persons in like circumstances—those charged with the commission of a felony by information. The following statements in State v. Essman, supra, are relied on by petitioner as denotive of the significance of a preliminary hearing:

“ ‘Although the formal purpose of the preliminary examination is to establish probable cause to hold the defendant for trial, its principal purpose in practice is to afford defense counsel an opportunity to learn the nature of the prosecutor’s case.’ ”

and:

“ ‘ * * * there must be a hearing in a substantial sense. And to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them. * * * (citations).’” (Emphasis supplied)

In Essman, our Supreme Court was confronted with the question of the propriety of a motion to quash an information for inadequacy of the preliminary hearing. In upholding the motion, the court noted that “there múst be a hearing in a substantial sense.” We construe this to mean that the committing magistrate’s determination of the question of probable cause must be made in accordance with prescribed rules of evidence. We believe the Essman decision does not exalt a preliminary hearing to a “substantial right,” available to anyone prosecuted for a felony, as urged by the petitioner.

From the petitioner’s reliance on the reference in Essman to the purpose of a preliminary hearing from' a defense standpoint, he appears to stake his claim of denial of equal protection of the laws on the ' deprivation of “discovery” afforded by a preliminary hearing. Though frequently a useful source of information to a defendant, disclosure of the prosecution’s case is not the purpose of a preliminary hearing. See United States v. Averett, 26 F.2d 676, 679 (1928); State v. Vines, 49 Wyo. 212, 54 P.2d 826 (1936); State v. Spears, supra; People v. Malloy, 199 Cal.App.2d 219, 18 Cal.Rptr. 545, 557 (1962); 22 C.J.S. Criminal Law § 332. Its legal purpose, as unequivocally reiterated by the Supreme Court of this state, is to determine whether the evidence is sufficient to find probable cause to hold a person to answer for the offense charged. State v. Smith, 99 Ariz. 106, 108, 407 P.2d 74 (1965); State ex rel. Corbin v. Superior Court, 100 Ariz. 236, 413 P.2d 264 (1966); State v. Chambers, 100 Ariz. 368, 414 P.2d 742 (1966). In State ex rel. Corbin, supra, the court stated:

“The object of a preliminary examination is to determine whether ‘there is probable cause to believe the defendant guilty of the offense charged, * * *.’ Rule 33, subsec. A, Ariz.Rules of Crim. Proc., 17 A.R.S. We have previously set forth the rules of evidence to be followed in making this determination. State v. Essman, 98 Ariz. 228, 403 P.2d 540. It is the duty of a magistrate to receive evidence and determine the question of probable cause in accordance with these rules of evidence.” 413 P.2d at 268.

A preliminary hearing is not a trial. It is a protective procedure afforded an accused person, insuring that he will not be required to stand trial and be exposed to public opprobrium unless there is probable cause shown that he committed the alleged offense. It is designed to protect rights of accused persons and to prevent possible abuse of power. State v. Schumacher, 97 Ariz. 354, 356, 400 P.2d 584 (1965); State ex rel. Mahoney v. Stevens, 79 Ariz. 298, 288 P.2d 1077 (1955).

In this jurisdiction an accused is not entitled as a matter of right to pretrial discovery. State ex rel. Mahoney v. Superior Court, 78 Ariz. 74, 79, 275 P.2d 887 (1954); State ex rel. Corbin v. Superior Court, 99 Ariz. 382, 384, 409 P.2d 547 (1966). Concerning criminal pretrial discovery, Judge Learned Hand observed ¹:

“Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never been able to see. * * * Our dangers do not lie in too little tenderness to the accused. * * * What we need to fear is the archiac formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime.” 291 F. at 649.

We do not pass upon the question of whether the trial court has discretionary power to grant a preliminary hearing on motion by the defendant, after a regularly found indictment. Our considerations are confined to determining whether equal protection of the laws requires granting of such hearing after indictment as contended by the petitioner.

Of particular interest is an opinion handed down by the Supreme Court of Washington in the very recent case of State v. Kanistanaux, 414 P.2d 784 (Wash. 1966). In that case the defendant urged that he was denied equal protection of the laws in violation of the Fourteenth Amendment of the United States Constitution in that the prosecutor was given the option of charging a defendant in justice court, where a preliminary hearing was available, or in superior court, where an information was all that was necessary to initiate a criminal action. Speaking for the Washington court, Chief Justice Rosellini said:

“ * * * it is well settled that every person charged with a crime need not be treated exactly the same as every other person charged with the same crime.

“In the first place, the prosecutor may elect whether or not to prosecute. State v. Reid, 66 Wash.Dec.2d 231, 401 P.2d 988. The prosecutor may elect whether to ask for the death penalty in a first degree murder case. White v. Rhay, 64 Wash.2d 15, 390 P.2d 535. He has the power to elect to charge, or not to charge, an individual falling within that category with the status of habitual criminal. In re Frye v. Delmore, 47 Wash.2d 605, 288 P.2d 850. The jury has discretion in imposing the death penalty in a capital case, and the trial court has discretion in imposing punishments in nearly all criminal cases. See State v. Boggs, 57 Wash. 2d 484, 358 P.2d 124.

“The United States Supreme Court has said that the function of determining that probable cause exists for the arrest of a person accused is only quasi-judicial, and not such that, because of its nature, it must necessarily be confided to a strictly judicial officer or tribunal. Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231. In that case the court sustained an act of the Philippine Commission which provided that an accused did not have a right to a preliminary hearing if the prosecutor, after due investigation, had presented an information against him.

“That provision was essentially the same as the provisions of our statutes and rules, which provide for a preliminary hearing if complaint is made in justice court, but dispense with this procedure where the prosecutor determines after his own investigation that probable cause exists and files an information in superior court.

“This election on his part does not determine where the case will be tried. If it is a case properly within the jurisdiction of the superior court, it will be tried there, regardless of whether it was initiated in the superior court or justice court.

* * 5jS ‡ * * .

“The defendants maintain that a preliminary hearing sometimes affords a defendant an opportunity to obtain information from the witnesses against him, which he would not otherwise be able to obtain. If this is so, it is fortuitous. It is not the purpose of the preliminary hearing to furnish a means of discovery for the defendant, but to ascertain whether probable cause for prosecution exists * * 414 P.2d at 788 and 789.

The situation considered by the Washington court is analogous to the problem before us.² We believe that the reasoning of the court was sound and hold that the petitioner was not denied equal protection of the laws by the refusal to grant him a preliminary hearing.

Finding no jurisdictional defect in the lower court’s action and treating these proceedings as in certiorari, the writ is denied.

KRUCKER, C. J., concurring.

1 . United States v. Garsson, 291 F. 646 (D.C., S.D.N.Y.1923).

2 . See also: In re Evans’ Petition, 409 P.2d 456 (Mont.1965), where the Supreme Court of Montana held that prosecution by information without a pre-Eminary bearing, with the court’s permission, was not violative of the equal protection clause of the federal constitution.