James v. State, Criminal 869

• Court: Supreme Court of Arizona
• Writing for the Court: LOCKWOOD, J.
• Citation: 53 Ariz. 42,84 P.2d 1081
• Parties: HAROLD JAMES and JULIO GUANO, Appellants, v. STATE OF ARIZONA, Respondent
• Decision Date: 12 December 1938
• Docket Number: Criminal 869

84 P.2d 1081

53 Ariz. 42

HAROLD JAMES and JULIO GUANO, Appellants,
v.
STATE OF ARIZONA, Respondent

Criminal No. 869

Supreme Court of Arizona

December 12, 1938

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Mr. G. W. Fryer and Mr. J. Andrew West, for Appellants.

Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, his Assistant, for Respondent.

OPINION [84 P.2d 1082]

[53 Ariz. 44] LOCKWOOD, J.

Harold James and Julio Guano were convicted of the crime of robbery, and duly sentenced therefor, whereupon this appeal was taken.

James has since died, and the appeal is prosecuted on behalf of Guano alone. There are seventeen assignments of error, which we will consider in accordance with the legal questions raised thereby, rather than numerically.

The charging part of the information reads as follows:

"That at the County of Yavapai, State of Arizona, on or about the 28th day of March, A.D. 1938, and prior to the filing of this information, the said Harold James and Julio Guano, did then and there wilfully, wrongfully, unlawfully and feloniously, take personal property, to-wit: a billfold in the possession of another, to-wit: Jose Benitas, from the person of the said Jose Benitas, and against the will of the said Jose Benitas, said taking being accomplished by means of force and fear, to-wit: by the use of a pistol,"

and it is claimed that it is defective in that it does not state the ownership of the personal property alleged to have been taken. Robbery is defined by section 4602, Revised Code 1928, as follows:

"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence and against his will, accomplished by means of force or fear. The fear may be either of an unlawful injury to the person or property of the person robbed,..."

Our statute on robbery is taken from California and the decisions of the courts of that state on the construction of the statute, even though not binding upon us, are very persuasive. In the very early case of People v. Vice, 21 Cal. 344, the information apparently followed the language of the statute, but did not charge that the property taken was not the [53 Ariz. 45] property of the defendant or that it belonged to any person other than the defendant, and the court said:

"The indictment in this case is for the offense of robbery, but in the statement of facts constituting the offense there is a fatal defect. The statement contains no allegation as to the ownership of the property of which the party named was robbed or that it did not belong to the defendant. It is not necessary that the property should belong to the party from whose possession it was forcibly taken. It is requisite, however, that it should belong to some other person than the defendant. The owner of property is not guilty of robbery in taking it from the person of the possessor, though he may be guilty of another public offense."

And the judgment was reversed. At a later time, however the Penal Code of California was amended by adding the following section, which originally read as follows:

"956. When an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material."

This language also appears in our 1928 Code as the last sentence of section 4980, having come into our law in the Code of 1887. In the case of People v. Price, 143 Cal. 351, 77 P. 73, it was held, relying on section 956, supra, that when the crime charged was burglary, the name of the owner of the property was immaterial except where necessary to identify the property, and that it was unnecessary to allege the ownership of the property burglarized when the building was so described that the defendant could not be misled thereby. Our court, in the case of Stewart v. State, 27 Ariz. 240, 232 P. 556, where the same question was raised as to the failure of the information to set forth the ownership of the property burglarized, followed the judgment of the Supreme Court of California, and [53 Ariz. 46] referred specifically to People v. Price, supra, basing our decision on section 940 of the Penal Code of 1913, which is verbatim the same as that portion of section 4980 above referred to. We stated (p. 244):

"This provision applies as much to burglary as to larceny or any other criminal offense, and under it the name of the owner of the property burglarized is immaterial unless it be necessary for purposes of identification."

The precise question raised herein was involved in the case of People v. Sampson, 99 Cal.App. 306, 278 P. 492, the offense charged being robbery. The information did not allege who was the owner of the property taken, although it...