Adkins v. State

• Court: Arizona Supreme Court
• Writing for the Court: SPEAKMAN, Superior Judge.
• Citation: Adkins v. State, 42 Ariz. 534, 28 P.2d 612 (Ariz. 1934)
• Decision Date: 15 January 1934
• Docket Number: Criminal 784
• Parties: CLAYTON CLIFFORD ADKINS, Appellant, v. STATE, Respondent

28 P.2d 612

42 Ariz. 534

CLAYTON CLIFFORD ADKINS, Appellant, v. STATE, Respondent

Criminal No. 784

Supreme Court of Arizona

January 15, 1934

APPEAL from a judgment of the Superior Court of the County of Pima. C. C. Faires, Judge. Judgment affirmed.

Mr. H O. Juliani and Mr. C. Wayne Clampitt, for Appellant.

Mr Arthur T. La Prade, Attorney General, Mr. J. R. McDougall Assistant Attorney General, and Mr. Clarence E. Houston County Attorney, for the State.

OPINION

SPEAKMAN, Superior Judge.

The appellant, Clayton Clifford Adkins, was charged by information filed in the superior court of Pima County, Arizona, with the crime of kidnaping, a felony, and upon conviction thereof was sentenced to life imprisonment in the state prison, from which judgment and conviction, and the order denying motion for new trial, he appeals.

Briefly the facts are as follows: That about midnight of February 4, 1932, one Gordon H. Sawyer was seized at his home in the city of Tucson by two masked men armed with guns and forced into his automobile. While one of the masked men drove, the other blindfolded Sawyer, packed cotton into his ears, and tied his hands behind him. On the outskirts of the city, the car was stopped and Sawyer forced from his automobile into another automobile, Sawyer's automobile being abandoned at that point, at which point a third person joined the two masked abductors. After proceeding to a point near the appellant's ranch some four miles from Tucson, the car was stopped and there Sawyer was ordered to sign a certain letter demanding ransom in the amount of $60,000. Thereupon Sawyer was taken to the Adkins ranch-house, where appellant then resided, and held prisoner until early the following morning at which time they placed him in a dry well near the house where he remained until found by officers.

That on the morning of the 5th of February, the disappearance of Sawyer having been reported to the officers, two Tucson officers, during their investigation into the disappearance of Sawyer, and while following the tracks of the automobile to which Sawyer had been transferred after having been first abducted in his own automobile, at a point near the Adkins ranch came upon two men, one of whom was later identified as being the appellant, who were attempting to obliterate the tracks of the automobile which said officers were following. Upon sighting the officers the two men ran behind some brush; and upon being ordered by the officers to come forth, commenced shooting at the officers. After exchanging several shots, the two men escaped, fleeing in the direction of appellant's residence. That upon being reinforced, the officers went to appellant's house, and, while in search of the men who had fired upon them, entered the house and seized certain articles which were later introduced in evidence at the trial in which appellant was convicted. That shortly thereafter Sawyer was found in the dry well near appellant's residence where he had been placed by the men who abducted him.

That later and on February 14, 1932, appellant was found some sixteen miles from Tucson together with his automobile, and, upon being returned to Tucson, was then identified as one of the men who had fired upon the officers, and his automobile was identified as having made the tire tracks leading from Sawyer's abandoned automobile to the Adkins ranch-house. That a pair of shoes was found in the dry well where Sawyer had been placed, the testimony of the state tending to show that they had been sold to appellant a few months previously, and that the footprints on the ground where Sawyer's car was abandoned were made by these shoes. The testimony further shows that Sawyer was robbed of a sum of money while in custody of his abductors.

Appellant denies having take part in the abduction, stating that on the day preceding the abduction three men came to the adkins ranch, one of whom he had previously met in jail while serving a term for violation of the prohibition laws; that he and his sister went to Tucson leaving the three men at the ranch-house; that upon their return the three men were still there, stating that they were having car trouble. That thereupon the three men asked to borrow appelant's car, with which request appellant complied. Appellant testified that some time about midnight the three men returned with the said Sawyer, stating that they had a banker and were going to keep him at that place. Appellant states that he remonstrated but was told to keep quiet under threat of being shot. That he was then ordered to bed, but on the following morning was forced to assist in placing Sawyer in the dry well. Appellant further states that thereafter he and his sister were permitted by the three men to drive the car to the city of Tucson; that while there he and his sister called at the postoffice. The evidence further shows that thereafter a letter was delivered to the Southern Arizona Bank and Trust Company, of which Sawyer was vice-president, demanding $60,000 in ransom.

Appellant first complains that the trial court erred in overruling his demurrer to the information filed by the county attorney, and on which the appellant was tried and convicted.

The statute under which the appellant was charged is section 4609, Revised Code of Arizona of 1928, which provides as follows:

"Every person who, maliciously, forcibly or fraudulently takes or entices away any person with intent to restrain such person and thereby to commit extortion or robbery, or exact from the relatives or friends of such person any money or valuable thing, is guilty of a felony."

The information is in the exact words of the statute. It is appellant's contention that the information is not sufficient in that it does not inform the defendant as to the time, place, and circumstances with enough certainty to inform the accused of the specific offense with which he was charged.

The sufficiency of an indictment or an information is prescribed by section 4982, Revised Code of 1928, which is as follows:

"The indictment or information is sufficient, if it can be understood therefrom: That it is entitled in the court having authority to receive it, though the name of the court be not stated; if an indictment, that it was found by a grand jury of the county in which the court was held, or, an information, that it was returned and presented to the court by the county attorney of the county in which the court was held; that the defendant is named, or if his name cannot be discovered, that he is described by a fictitious name, with a statement that his true name is to the jury or to the county attorney, unknown; that the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the county, is triable therein; that the offense was committed at some time prior to the time of finding the indictment or filing the information; that the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, and as to enable the court to pronounce judgment upon a conviction, according to the right of the case."

There can be no question but what the requirements of this section have been fully met by the allegation of the information, including the time, place and circumstances surrounding the commission of the offense, as announced in section 4609, supra. We think beyond question that the act charged in the information is set forth in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended. In order to sustain appellant's contention, it would be necessary for the prosecutor to plead the state's evidence, which, of course, is not required by any rules of pleading. In our opinion the information was not subject to the objection urged by appellant, and it appears to be sufficient in all respects.

Appellant's next two assignments of error deal with the court's denial of an application for a change of venue, and the court's denial of appellant's motion for a continuance. Since appellant bases these two assignments on practically the same grounds, for the sake of brevity we will consider them together.

Appellant filed an application for a change of venue from Pima county and therein asks that the trial court transfer the trial of this case to some other county in the state of Arizona for the reason that bias and prejudice existed against the defendant in Pima county to the extent that he could not get a fair and impartial jury, and supports this application by an affidavit of appellant to the same effect. In further support of the application, counsel for appellant took the witness-stand, and, in substance, testified that he had spoken to perhaps one hundred persons in Pima county and that he knew that feeling against the defendant was very bitter; that press a...