Duke v. State

• Court: Arizona Supreme Court
• Writing for the Court: LOCKWOOD, J.
• Citation: Duke v. State, 49 Ariz. 93, 64 P.2d 1033 (Ariz. 1937)
• Decision Date: 08 February 1937
• Docket Number: Criminal 852
• Parties: C. R. DUKE, Jr., Appellant, v. STATE OF ARIZONA, Respondent

64 P.2d 1033

49 Ariz. 93

C. R. DUKE, Jr., Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 852

Supreme Court of Arizona

February 8, 1937

APPEAL from a judgment of the Superior Court of the County of Coconino. Frank Harrison, Judge. Judgment affirmed.

Mr Thorwald Larson and Mr. E. C. Gorman, for Appellant.

Mr. Joe Conway, Attorney General, Mr. W. E. Polley, Assistant Attorney General, and Mr. H. K. Mangum, County Attorney of Coconino County, for Respondent.

OPINION

LOCKWOOD, J.

This is an appeal from a judgment of the superior court of Coconino county, sentencing C. R. Duke, Jr., to imprisonment in the penitentiary, after his conviction by a jury of the crime of grand larceny. There are nineteen assignments of error, but we think we need discuss only six legal questions raised by these assignments. In order that we may do so intelligently, it is necessary that we make a brief statement of the background of the case, and of the evidence presented to the jury, taking the latter, of course, in its strongest manner in support of the verdict as, under our oft-repeated rule, we must consider it.

During the month of March, 1936, there was a band of about 1,560 sheep running near what is called the Anderson Canyon, in Coconino county. On the 16th day of March, the herder in charge of the sheep discovered that a number were missing. He immediately notified his foreman who checked the herd and found there were 74 missing from the particular band. The foreman then trailed the missing sheep from the place where they had their camp a few nights previous for several miles, and discovered by the marks on the ground that they were accompanied by three horses, and at least two men and a dog. The foreman then notified Fred Purcell, who was in general charge of the sheep, and he, in company with several other men, picked up the trail of the sheep, the horses, and the two men and dog with them, and followed it, with only one substantial break, to the ranch of defendant. There he found some 60 or 70 sheep, 30 of which were positively identified by him as being sheep belonging to the owner of the band. The defendant was questioned at the time in regard to the matter and claimed that he had gotten the sheep from his father, the latter claiming, in turn, that he had purchased them from some Indians. Defendant and one Wayne Cook, who was working for him, were then arrested and taken before a justice of the peace of Flagstaff precinct, where a complaint was filed which charged that defendant and Cook "did then and there willfully, unlawfully and feloniously steal, take and carry away 30 head of sheep...." Both the parties charged were held to answer to the superior court by the magistrate, the commitment alleging:

"It appearing to me that the crime of felony (grand larceny) has been committed... and that there is sufficient cause to believe that C. R. Duke, Jr., and Wayne Cook are guilty thereof,..."

with the usual formal order following. In due time an information was filed, the charging part of which reads as follows:

"In the name and by the authority of the State of Arizona, C. R. Duke, Jr., and Wayne Cook, are accused by the County Attorney of Coconino County, State of Arizona, by this information, of the crime of felony (grand larceny) committed as follows, to wit: The said C. R. Duke, Jr., and Wayne Cook on or about the 18th day of March, 1936, and before the filing of this information in and at the County of Coconino, State of Arizona, then and there being did, then and there wilfully, unlawfully and feloniously steal, take and carry away thirty (30) head of sheep, said sheep being branded Concho Livestock Company, a corporation, duly incorporated under the laws of the State of Arizona."

When the case came on for trial, defendant and Cook were not represented by counsel, and stated in open court that they preferred to appear in their own behalf, which request was by the court granted, and the trial proceeded in the usual manner, a verdict of guilty being returned against defendant and of not guilty as to Wayne Cook.

The first question raised by the assignments of error is that the order of the committing magistrate was insufficient upon which to predicate an information charging grand larceny. Larceny, under our statute, is defined as follows:

"... The felonious stealing, taking, carrying, leading, or driving away of the personal property of another," and it is grand larceny "when the property taken or appropriated is of the value exceeding fifty dollars,... or is a... sheep." Sections 4756 and 4757, Rev. Code 1928.

It is the law of Arizona that when a criminal complaint is filed before a justice court, regardless of the particular offense charged by the complaint, if it appears that any felony has been committed, it is the duty of the magistrate to...