170 P. 792 | Ariz. | 1918
This is an appeal in a habeas corpus proceeding. After a preliminary examination, one Ethel Butts was committed to answer the charge of murder in the superior court for Maricopa county. Thirty-one days after her commitment, the county attorney filed an information against her for the offense.
Section 1274, subdivision 1, of the Penal Code, provides:
“The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases:
*319 “Where a person has been held to answer for a public offense, if an indictment or information is not found within thirty days.”
Section 1279 says:
“An order for the dismissal of the action, as provided in’ this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor; but it is not a bar if the offense is a felony.”
Upon her motion the court dismissed the prosecution for the reason the information was not filed within the 30 days after she was held to answer as required by law. On the same day she was arrested and charged with the same offense, and, after her preliminary examination, was again held to answer. She is seeking her liberty in this proceeding by the writ of habeas corpus on the ground that the order of the court dismissing the prosecution in the first instance is a bar to any other prosecution for the same offense. By explicit direction of the statute, the order of dismissal was not a bar to another prosecution. The only matter heard and determined on the motion to dismiss under section 1274 was merely a determination of her right to dismissal of that prosecution and her release from custody at that time. The statute providing that such action by the court is not a bar to any other prosecution for the same offense, it matters not when in point of time such other prosecution was commenced, whether immediately after such order was made or not. We have a clear guide in the statute, and it is so plain that any attempt to argue or interpret the statute would only obscure it.
The order of the trial court refusing the writ is right, and it is affirmed.
ROSS and CUNNINGHAM, JJ., concur.
