Clark v. State

• Decision Date: 16 March 1922
• Docket Number: Criminal 518
• Citation: 204 P. 1032,23 Ariz. 470
• Parties: JOE B. CLARK, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

204 P. 1032

23 Ariz. 470

JOE B. CLARK, Appellant, v. STATE, Respondent

Criminal No. 518

Supreme Court of Arizona

March 16, 1922

APPEAL from a judgment of the Superior Court of the County of Maricopa.R. C. Stanford, Judge.Affirmed.

Mr Thomas J. Croaff, for Appellant.

Mr. W J. Galbraith, Attorney General, and Mr. R. E. L. ShepherdCounty Attorney, for the State.

OPINION

ROSS, C. J.

Appellant was convicted of stealing a Ford automobile belonging to the Egyptian Cotton Company, and sentenced to serve not less than nine years and not more than ten years in the penitentiary at Florence.

He relates in his statement of facts that about the time he was arrested police officers of Phoenix, without a search-warrant, searched his room, finding certain "articles" therein which, upon his application before trial, were by the superior court ordered restored to him, and the county attorney restrained from using, or attempting to use, said "articles" in evidence, or to use any knowledge gained by such seizure.

The first assignment is that the court erred in not granting appellant a new trial for the reason the county attorney continued his attempt, contrary to the court's order, to introduce evidence so unlawfully seized.We have examined the transcript of the testimony, and it appears therefrom a colloquy, partly before the jury and partly in the absence of the jury, took place between the court, appellant's counsel, and the county attorney about some articles that were being offered by the county attorney as evidence, among which were some automobile license plates that had been taken from appellant's room by the officers.They were not permitted to go before the jury as evidence, although the county attorney did offer them.The motion for a new trial, upon the grounds stated, was addressed largely to the court's discretion.In overruling the motion the court in effect held that the county attorney did not transgress the court's order, or, if he did, that the appellant was not prejudiced thereby.Unless it clearly appeared that the appellant was prejudiced, we would not feel like disturbing the ruling of the trial court.The machine appellant was charged with stealing was a Ford touring car, motor No. 4,318,050, bearing license plate No. 34,020.When it was found the motor number had been changed to 4,092,983 and it bore license plate No. 3925.The application upon which license No. 3925 was issued described the motor as being No. 4,092,983, and was signed by the appellant.The factory number had been filed off the engine, and the number appellant gave in his application had been placed thereon.The machine had been repainted and the top had been changed.Some changes had been made in the engine.In one place on the body of the car was painted, in yellow, "I don't oil"; another place, "Keep cool, Mr. Ford; save your power."It was the theory of the state that the appellant was in the business of stealing automobiles and the prosecution accordingly offered in evidence several applications for automobile licenses, signed with fictitious names in the handwriting of appellant.The state introduced expert testimony that the signatures to these other applications were in the handwriting of appellant; and the court permitted the expert witness to use photographs of the signatures very much enlarged to illustrate his testimony.The appellant assigns this as error, because he says this testimony had "a tendency to prejudice the minds of the jurors in the belief that defendant had been or was preparing to or had committed a number of other similar offenses."These applications for license plates did not bear appellant's name, but fictitious names, signed by appellant.They were likewise for fictitious cars, that is, there was no car in existence having the manufacturer's motor number as given in application; that discrepancy being a matter for correction after the right car was found, unprotected.If several license plates issued to appellant had been found in his possession under a search-warrant, we think there could be no question as to their competency and relevancy as evidence, on the same principle that the tools of a burglar, found in his possession, are competent evidence upon his trial for burglarizing a house.If the plates in such circumstances would have been competent, why not the applications upon which the plates were issued?The plan was original, as well as ingenious.All the thief had to do was to separate the owner from his car, change the license plate number and the motor number, and apply a different color of paint, making the car yellow or red where it had been black or green, and the change was as complete as the mutation of Dr. Jekyll into Mr. Hyde, or vice versa.We think the testimony was competent to show system, scheme, or plan.Cummings v. State,20 Ariz. 176, 178 P. 776.

Appellant requested the court to instruct the jury as follows:

"The court instructs you that if from the evidence, or lack of evidence, in this case you have a reasonable doubt whether this defendant or some other person known or unknown is guilty of the offense charged, you should reserve that doubt in favor of this defendant and acquit him.

"The court instructs you that if the evidence merely raises a suspicion in the minds of the jury that the defendant is guilty, it is clearly insufficient to convict him, and the jury must acquit him."

The appellant complains of the court's refusal to give these instructions, "for the reason that the court gave no other instructions covering the issues involved as to the identity of the accused."All the evidence in the case was circumstantial.The car was stolen in Phoenix.Some time thereafter it was sold to Birch & Taylor, a partnership composed of Robert Birch and Frank E. Taylor, doing business in Prescott,...