Opinion
No. 9423.
January 9, 1969.
Robert K. Corbin, County Atty., by William Carter, Deputy County Atty., for petitioner.
Walter F. Kessler, Phoenix, for respondent Edward Lee Michael, Jr.
Edward F. Michael, Jr. was informed against for the crime of murder (degree not specified) and was convicted of murder in the second degree. The conviction was reversed and the case remanded for a new trial. State v. Michael, 103 Ariz. 46, 436 P.2d 595. Upon the remand, Michael filed a motion to quash the information "insofar as said information purports to charge the defendant with any greater degree than second degree murder." The ground of the motion was that the conviction of second degree murder was an implied acquittal of first degree murder, and that therefore an attempt to try defendant for first degree murder would amount to double jeopardy. The trial court granted the motion and ordered that the defendant be tried for no greater degree of murder than that of second degree.
The state applied to us for a writ of certiorari and we granted the writ on October 15, 1968. Our reasons for doing so are as follows:
In State v. Thomas, 88 Ariz. 269, 356 P.2d 20 (1960), we decided this question in favor of the State. Our analysis of the legal principles involved was fully set out in our opinion in that case. All of the counter-arguments were forcibly stated in an able dissent, in which all of the relevant authorities were cited. On February 7, 1968 we reaffirmed our position in two cases: State v. White, 103 Ariz. 85, 436 P.2d 904, and State v. McClendon, 103 Ariz. 105, 437 P.2d 421. In each case the same justice reaffirmed his dissent. In State v. Intogna, 103 Ariz. 455, 445 P.2d 431, we adhered to our view on the legal point involved, although we refused to extend the rule to a case in which there was an express acquittal of the higher offense.
We have re-examined our position and still consider it to be sound. We see no useful purpose in repeating the line of reasoning which led us to these conclusions, since this information may be gained from a perusal of the Thomas, White, and McClendon cases, supra.
Michael, in resisting the application for the writ, also contends that the information is insufficient to charge him with first degree murder, because it does not allege wilfulness, premeditation, or deliberation. This contention is completely without merit. State v. Intogna, 101 Ariz. 275, 419 P.2d 59.
Michael also argues that the State has no right to proceed by way of a petition for a writ of certiorari and should have appealed. We believe that this case is peculiarly adapted to a proceeding in certiorari. As the Supreme Court of California said in Gomez v. Superior Court, 50 Cal.2d 640, 328 P.2d 976:
"That the right to raise this question on appeal is plain cannot be doubted. That it is either speedy or adequate is open to serious question. * * * In view of the considerable discretion vested in us in issuing these writs, we are constrained to hold that, while the remedy at law is plain, it is neither speedy nor adequate under the facts before us and especially in view of the fact that in its final analysis the question before us is one of the jurisdiction of respondents to again place petitioners on trial for the offenses charged in the indictment found against them."
The stay order issued by this court on October 15, 1968 is hereby vacated and the case is remanded to the superior court. The order of the superior court entered by Judge Holohan on September 23, 1968, quashing the information in part and ordering the defendant to be tried for no greater charge than second degree murder, is vacated.
LOCKWOOD, V.C.J., and STRUCKMEYER, McFARLAND and HAYS, JJ., concur.