Appel v. State

• Decision Date: 19 June 1925
• Docket Number: Criminal 607
• Citation: 237 P. 190,28 Ariz. 416
• Parties: WILLIAM APPEL, Appellant, v. STATE, Appellee
• Court: Arizona Supreme Court

237 P. 190

28 Ariz. 416

WILLIAM APPEL, Appellant, v. STATE, Appellee

Criminal No. 607

Supreme Court of Arizona

June 19, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.

Mr James P. Lavin, Mr. Frank O. Smith, and Messrs. Cassidy &amp Flynn, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. A. R. Lynch, Mr Earl Anderson, and Mr. Frank J. Duffy, Assistant Attorneys General, for the State.

OPINION

LOCKWOOD, J.

William Appel, hereinafter called defendant, was informed against for grand larceny in the superior court of Maricopa county. He pleaded not guilty and, after a trial before a jury, was convicted and sentenced. A motion for new trial was duly made and denied, and he has appealed to this court. There are some 17 assignments of error, which may properly be divided into several groups, which we will discuss as seems advisable.

The first group presents the point that there is a variance between the information and the proof in that the information charged a larceny of "United States currency," which, it is contended, means specifically paper money issued directly by the United States, to the exclusion of national bank notes, while it is claimed the proof showed merely paper money bills of some character, whether greenbacks, Federal Reserve notes, national bank notes, or gold or silver certificates not appearing. This contention cannot be upheld. Paragraph 941, Penal Code 1913, says: "The words used in an indictment or information are construed in their usual acceptance in common language . . ." and the term "United States currency" is commonly understood to include every form of currency authorized by the United States government, whether issued directly by it or under its authority. Ex parte Prince, 27 Fla. 196, 26 Am. St. Rep. 67, 9 So. 659; State v. Oakley, 51 Ark. 112, 10 S.W. 17; Leonard v. State, 114 Ala. 80, 22 So. 564; State v. Gasting, 23 La. Ann. 609.

The case of State v. Phillips, 27 Wash. 364, 67 P. 608, cited by defendant, is not in point, as the money proved therein was Canadian bills, which, as the court says, "cannot, under the most expansive and secondary definitions, be described as lawful money of the United States."

Nor do we think it was necessary to prove specifically that the bills were genuine. The statement that they were "bills" and "money" implies their genuineness. It was not necessary to aver it. 36 C.J. 820. If there was no necessity to allege it, of course no proof thereof was required.

The question of the identity of the $50 bill, which the witness Ashby said he saw in the possession of the defendant, like all other disputed matters of fact, was a question for the jury, and the instructions of the court in regard to the effect of the unexplained possession of recently stolen property was a correct statement of the law of Arizona. Terrasas v. State, 25 Ariz. 476, 219 P. 226; Allen v. State, 26 Ariz. 317, 225 P. 332.

It is complained that the court refused to permit defendant to refresh his memory from a certain report made by him. It is apparent that, when the offer was first made, the court misunderstood counsel, believing that it was desired to read the report, for later it said:

"He may have the report for the purpose of answering this question, if you desire him to look it over for the purpose of refreshing his memory, and further testify to where he was. The ruling was that he could not read from it. That is a different thing from refreshing his memory."

Under these circumstances, it was the duty of the counsel, when the misunderstanding appeared, to again ask permission to use the report to refresh...