Erickson v. State

• Decision Date: 14 October 1912
• Docket Number: Criminal 323
• Citation: 127 P. 754,14 Ariz. 253
• Parties: J. M. ERICKSON, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

127 P. 754

14 Ariz. 253

J. M. ERICKSON, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 323

Supreme Court of Arizona

October 14, 1912

APPEAL from a judgment of the Superior Court of the County of Greenlee. F. B. Laine, Judge. Reversed and remanded.

The facts are stated in the opinion.

Mr. L Kearney, for Appellant.

Mr. G P. Bullard, Attorney General, and Mr. Leslie C. Hardy Assistant Attorney General, for Respondent.

OPINION

ROSS, J.

The defendant was indicted by the grand jury of Greenlee county under paragraph 489 of the Penal Code. We give here enough of the indictment to show the facts upon which it is founded: "The said J. M. Erickson, on or about the fifteenth day of March, A.D. 1910, and before the finding of this indictment, at the county of Greenlee, state of Arizona, did willfully, unlawfully, and feloniously then and there, with intent unlawfully and feloniously to cheat and defraud one George Goolsby, then and there unlawfully, knowingly, and feloniously, by use of a trick and deception and false and fraudulent representation, statement, and pretense, did falsely and fraudulently represent and pretend to the said George Goolsby that he, the said J. M. Erickson, had full right and authority to practice law, represent litigants, and obtain decrees of divorce in the courts of Arizona, and that he, the said J. M. Erickson, could get a decree of divorce for the said George Goolsby."

The indictment with particularity alleges further that the plaintiff was not an attorney at law, and had no right to practice law in the courts of Arizona, but that by means of such false representations the defendant obtained from said Goolsby the sum of $30.

Upon his trial defendant was convicted, and from the judgment of conviction, and from an order overruling his motion for a new trial, he has appealed to this court.

We will consider the errors complained of, or, at least, those that merit consideration, in the order in which the appellant presents them.

(1) The indictment charges the commission of the offense on or about March 15, 1910, in the county of Greenlee, state of Arizona. Upon the first offer of evidence by the state, the appellant objected, on the ground that on March 15, 1910, there was no sovereignty in the United States known as the state of Arizona. The lower court properly proceeded with the trial of the case. The venue was laid in Greenlee county, one of the counties of the state of Arizona and likewise of the territory of Arizona. The court properly took judicial notice of the fact that the boundaries of the state are identical with the boundaries of the territory, and that Greenlee county has the same boundary under statehood as it possessed in the territory of Arizona.

(2) The name of the injured party is laid in the indictment as George Goolsby; whereas he testified that his true name is George Goosbey. This difference in name was disclosed during the taking of the testimony of the prosecuting witness. Whereupon, at the close of the state's case, the appellant moved for an instructed verdict in favor of defendant, upon the ground of a variance in the name as alleged and as proved. The court properly overruled this motion; for, as we shall see, it presented a question of fact to be passed upon by the jury and not the court. The appellant failed to ask that the question as to whether the names were idem sonans or not be submitted to the jury. This, we think, should have been done; and but for the fact that the court had announced in an early stage of the trial, as a matter of law, that the names were idem sonans we would be concluded from considering the point. It may well be assumed that the reason the appellant did not request that the question of idem sonans be submitted to the jury was because the court had already ruled that it was a question of law to be decided by the court, and not a question of fact to be decided by the jury. In this view of the case, the point is properly before us for decision.

"Idem sonans means of the same sound. It exists when the attentive ear finds difficulty in distinguishing the names when pronounced." 1 Wharton on Criminal Evidence, sec. 97. The names "Goolsby" and "Goosbey" are sufficiently alike in spelling to warrant the court in submitting to the jury, after they had heard the names pronounced by witnesses, the question as to whether they are idem sonans. It was for the jury to say whether they have "the same sound." In State v. Thompson, 10 Mont. 549, 27 P. 349, 351, the court said: "We understand, from a review of the authorities, that the rule is that if the question of idem sonans arises on demurrer it is for the court; but if on an issue of fact it is for the jury. 'The question of whether one name is idem sonans with another is not a question of spelling, but of pronunciation, depending less upon rule than upon usage, which, when it arises in evidence on the general issue, is for the jury, and not for the court, and was rightly submitted to the jury in this case': Commonwealth v. Donovan, 13 Allen (Mass.), 571. In Commonwealth v. Warren, a very recent case in the same court, 143 Mass. 568, 10 N.E. 178, we find the following language: 'The province of the court and jury in cases like the present is governed by the following rule: If two names, spelled differently, necessarily sound alike, the court may, as a matter of law, pronounce them to be idem sonans; but if they do not necessarily sound alike the question whether they are idem sonans is a question of fact for the jury.'" 29 Cyc. 277; Perez v. Territory, ante, p. 163, 125 P. 483; 1 Wharton on Criminal Evidence, sec. 97.

The trial court committed error in holding, as a matter of law, that the names were the same in sound.

(3) one of the material facts to be proved under the indictment was that defendant represented to the prosecuting witness, at the time or before the money changed hands, that he was a practicing attorney in the courts of Arizona. No witness, excepting the prosecuting witness, testified that defendant said he was an attorney eligible to practice in the courts of Arizona. The defendant explained that he told Goosbey that he was not an attorney, but that he had an agency with two attorneys, one especially, who would get a divorce for Goosbey, and Goosbey paid him the money with that understanding. The testimony of Goosbey was not corroborated by any other witness on this main fact; nor was any note or memorandum of any false token or writing, subscribed by or in the handwriting of the defendant, placed in evidence. Under paragraph 937, Penal Code, a person cannot be convicted for having, with intent to cheat and defraud another designedly, by any false pretense, obtained money, personal property, or valuable thing, unless the pretense, or some note or memorandum thereof, be in writing, subscribed by or in the handwriting of defendant, or unless the pretense be proven by the testimony of two witnesses, or that of one witness and corroborating circumstances. In this case it was one oath against another on the essential fact as to whether defendant represented himself as an attorney at law, entitled to practice in the Arizona courts. We cannot ignore the clear and explicit provisions of the statute. State v. Buckley, 18 Or. 228, 22 P. 838; People v. Martin, 102 Cal. 558, 36 P. 952; People v. Gibbs, 98 Cal. 661, 33 P. 630; People v. Mauritzen, 84 Cal. 37, 24 P. 112.

(4) As above stated, the defendant testified that he did not represent to Goosbey that he was an attorney at law, but that he would secure a lawyer to procure the divorce for...