Faber v. State, Criminal 947
| Decision Date | 30 October 1944 |
| Docket Number | Criminal 947 |
| Parties | ADAM FABER, Appellant, v. THE STATE OF ARIZONA, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge.
Judgment affirmed.
Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General, Mr. James A. Walsh, County Attorney, and Mr. Francis J. Donofrio, Deputy County Attorney, for Appellee.
Mr Jacob Morgan, for Appellant.
In the Superior Court of Maricopa County the appellant, Adam Faber, was charged by information with the crime of "fellatio," a felony, committed as follows:
"In the name and by the authority of the State of Arizona Adam Faber is accused this 3rd day of July, 1943, by the County Attorney of Maricopa County, State of Arizona, by this information, of the crime of Fellatio, a felony committed as follows, to-wit:
"The said Adam Faber on or about the 20th day of June, 1943, and before the filing of this information at and in the County of Maricopa, State of Arizona, did then and there wilfully, unlawfully and feloniously commit lewd and lascivious acts upon and with the body and person of one Howard Wojack, a male person, with the intent then and there and thereby to arouse and appeal to and gratify the lust and passions and sexual desires of him, the said Adam Faber and of the said Howard Wojack, in an unnatural manner; contrary to" etc.
Appellant moved for dismissal of this information upon numerous grounds. In substance, the motion is that the information does not state a public offense and that the alleged crime of "fellatio" is not denounced in the English language. This information was drawn under Section 43-407, Arizona Code Annotated 1939, which reads as follows:
Appellant contends also that this section of the statute is null and void and that no one can be prosecuted under it. In the recent case of State v. Farmer et al., 61 Ariz. 266, 148 P.2d 1002, this court held the section constitutional and that an information drawn in its language is sufficient. This information is in the language of Section 43-407, supra, and meets all requirements.
The fact that the caption of the information uses the word "fellatio" in naming the offense is immaterial. The crime is that set forth in the body of the information and the word "fellatio" is not found therein. In Merrill v. State, 42 Ariz. 341, 26 P.2d 110, this court held that the name by which a crime is characterized in the caption does not constitute the charge, but that the act alleged in the body of the information is the offense for which a defendant is prosecuted, even though it shows a different one from that named in the caption. "The name of the crime" to use the language of State v. Culbreath, 71 Ark. 80, 71 S.W. 254, 255, "is controlled by the specific acts charged, and an erroneous name of the charge does not vitiate the indictment." In 31 C. J. 669, par. 189, is found this statement, which is supported by many authorities:
". . . So, too, an indictment is good as charging the offense which the facts set forth in the indictment constitute under the law, notwithstanding an improper characterization thereof in the caption."
It appears that on June 20, 1943, a little after midnight, four officers went to the home of appellant at 715 N. Second Street, Phoenix, looking for evidence of a violation of the narcotic law. They went to the front door, but seemingly no one was there, whereupon they went to the rear of the building. One of the officers, Wallace, went to the back of the duplex where there was a screened sleeping room with a canvas flap 18 inches by 3 feet. He heard voices in this room. The language being used was obscene indicating, he thought at first, that a difficulty was taking place inside. He testified that the conversation he heard between the two men showed that a vicious act was occurring between them. Upon hearing this he called the other officers to him and they all listened for about five minutes and realized what was going on. It was distinct in every way, they being only about five feet away, and there was definitely an act of lewd and lascivious conduct taking place between the two men whereby they were having sexual intercourse in an unnatural manner, and also were gratifying the lust and passion of each other. Thereupon Mr. Wallace and Mr. Murphy stepped to the back door, Wallace opened it and Murphy threw his flashlight directly upon the two men. They were naked and did not know the officers were anywhere around until the flashlight was thrown on them.
Howard Wojack, a soldier from Hyder's Field, was lying on his back in the bed. He testified in substance to the same facts that Wallace did and stated that Faber told him to use the language he did. The other officers, Tucker and Murphy, and Davis of the Government Narcotic Squad, also gave substantially the same testimony that Wallace did.
According to Wojack's testimony, he came to town that evening, went to the Y. M. C. A. for a shower and a swim, and then attended several different shows, getting out of the last one about midnight. As he was walking along the main street, appellant drove by in his car alone. He stopped and asked Wojack to get in his car and go over to his house and have a couple of drinks and Wojack did. They had some drinks and some spaghetti, after which appellant requested Wojack to take off his clothes and he did so. The appellant undressed also and they both got in bed, after which the occurrences Wallace described took place.
The appellant objects to the fact that he was arrested without either a warrant or a search warrant and contends that in so doing his rights and privileges under the Constitution of the United States and the state were violated, the privacy of his home invaded and the evidence so obtained unlawfully used in the trial. This, of course, depends on whether the...
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