In re Application of Harrison, Civil 4227

• Decision Date: 22 April 1940
• Docket Number: Civil 4227
• Citation: 55 Ariz. 347,101 P.2d 457
• Parties: In the Matter of the Application of FRANCIS H. HARRISON, for a Writ of Habeas Corpus. v. EUGENE SHUTE, as Superintendent of the Arizona State Prison, Respondent FRANCIS H. HARRISON, Petitioner,
• Court: Arizona Supreme Court

101 P.2d 457

55 Ariz. 347

In the Matter of the Application of FRANCIS H. HARRISON, for a Writ of Habeas Corpus.

FRANCIS H. HARRISON, Petitioner, v. EUGENE SHUTE, as Superintendent of the Arizona State Prison, Respondent

Civil No. 4227

Supreme Court of Arizona

April 22, 1940

Original proceeding in Habeas Corpus. Writ quashed and petitioner remanded.

Mr Fred Sutter and Mr. James T. Gentry, for Petitioner.

Mr. Joe Conway, Attorney General, Mr. Earl Anderson, Assistant Attorney General, and Mr. Ralph W. Bilby, Special Counsel for Respondent.

OPINION

McALISTER, J.

This is an application by Francis H. Harrison for a writ of habeas corpus, directing the superintendent of the state prison to bring him before this court and show the cause of his detention, and upon such hearing that he be either restored to his liberty or confined in the Cochise county jail under information No. 4958 pending against him in that county until released according to law.

It appears from the petition that on April 12, 1939, an information was filed against the petitioner in the superior court of Cochise county, state of Arizona, in criminal cause No. 4916, purporting to charge him with the commission of a felony as defined in section 4519, Revised Code of 1928; that on October 17, 1939, he pleaded guilty to the crime of defrauding the state as contained in that information and on January 27, 1940, was adjudged guilty thereof by the superior court of Cochise county, Honorable JOHN WILSON ROSS presiding, and sentenced to a term of not less than four nor more than five years from that date in the state prison; that he was committed to the custody of the sheriff of Cochise county for delivery to the superintendent of the state prison at Florence, Arizona, who by reason of this sentence and commitment holds the petitioner within the confines of that institution.

The petition alleges further that the superior court had no jurisdiction to sentence petitioner to the state prison under information No. 4916, because it does not state a public offense under the laws of Arizona. After naming the offense with which it accuses him as that of "defrauding the State," the information proceeds in the following language:

"The said Francis H. Harrison on or about the 30th day of December, 1938, and before the filing of this information, at the County of Cochise, State of Arizona, did then and there, willfully, unlawfully and feloniously and with the intent to defraud the State of Arizona present for allowance or payment a certain false and fraudulent writing, to-wit; a certain purported Certificate of Eligibility of one Charlie Walsh to receive public relief monies of the State of Arizona, to the State Board of Social Security and Welfare, a then duly created and existing agency of the State of Arizona duly created and maintained for the purpose of disbursing the public monies of the State of Arizona for relief purposes; the said State Board of Social Security and Welfare being at said time duly authorized to make allowance or payment of said public monies on said Certificate of Eligibility if the same were or had been genuine, and the said Francis H. Harrison at the time of the presentation of said Certificate of Eligibility to the State Board of Social Security and Welfare then and there well knew the same to be false and fraudulent and presented to said State Board of Social Security and Welfare for the purpose and with the express intent to defraud the State of Arizona."

Section 4519, Revised Code of 1928, under which this information was drawn reads as follows:

"Presenting false claim. Every person who, with intent to defraud, presents for allowance or for payment, to any public board or officer, authorized to allow or pay the same, if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of a felony."

The petitioner contends that the information is fatally defective for several reasons and is, therefore, wholly void and without effect. He urges first that it names the crime with which it accuses him as that of "defrauding the State" when there is no such offense under the statutes of this state. It is immaterial whether these three words correctly designate the offense or not. The name given a crime in the caption or introductory portion of the information is not decisive. "That portion of the information which sets forth the facts, the acts performed by appellant," to use the language of Merrill v. State, 42 Ariz. 341, 26 P.2d 110, 112, "must be looked to for this purpose, and if these do not constitute that offense but do show a violation of some other portion of the Penal Code, the information is still sufficient, because it charges only one crime and that is the one the pleaded facts show, it being immaterial that the information improperly designates it." In 31 C.J. 609, section 90, is found this statement of the rule: "The caption of an indictment need not state or describe the offense charged, and if it does so, any misstatement therein or variance from the indictment will be immaterial."

The second objection to the information is that while section 4519, supra, does not require in express language that the defendant "knowingly" presents a false and fraudulent claim for allowance in order to constitute the offense defined in that section, yet the courts of California, in construing section 72 of the Penal Code of that state, from which section 4519 was taken, hold that it is necessary that such an allegation appear in the information in order to state an offense, and in support of this proposition he cites People v. Butler, 35 Cal.App. 357, 169 P. 918, in which the court did make this holding. Hence, it follows, he urges, that since the information in this case does not allege that the defendant "knowingly" presented a false claim to the State Board of Social Security and Welfare for allowance, it states no offense. Just why this contention is advanced, in view of the following language of the information, does not appear, "And the said Francis H. Harrison at the time of presentation of said Certificate of Eligibility to the State Board of Social Security and Welfare then and there well knew the same to be false and fraudulent." Clearly this was a sufficient allegation of knowledge of the falsity of the claim on the part of defendant Harrison when he presented it for allowance.

The third and principal objection urged against the information is that it alleges that the claim was false and fraudulent merely a legal conclusion, but does not state the facts from which the court may decide whether this is in fact true. In other words, it is drawn in the language of the statute so far as this phase of the offense is concerned, and while it is generally sufficient to draw an information in this manner, such is not the case, petitioner argues, where it is sought to charge a person with presenting a fraudulent claim under section 4519, for the reason that the particular acts making the claim fraudulent must be alleged so that the fraud will appear upon the face of the information. In support of this proposition the petitioner relies principally on People v. Mahony, 145 Cal. 104, 78 P. 354, 356. In that case the trial court sustained a demurrer to an indictment which set forth a verbatim copy of a claim valid upon its face and certified as correct by the defendant as county clerk, but which alleged the claim to be false and fraudulent without giving the facts showing wherein, and upon appeal by the state that...