James v. State, Criminal 869
| Decision Date | 12 December 1938 |
| Docket Number | Criminal 869 |
| Parties | HAROLD JAMES and JULIO GUANO, Appellants, v. STATE OF ARIZONA, Respondent |
| Court | Arizona Supreme Court |
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.
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:
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 property of the defendant or that it belonged to any person other than the defendant, and the court said:
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:
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 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 was clearly proved at the trial that it belonged to the prosecuting witness. By that time section 956 of the California Penal Code, above quoted, had been amended by adding thereto the words:
"... or of the place where the offense was committed, or of the property involved in its commission, is not material."
The court, however, did not base its decision on the change in the statute, but referred to the case of People v. Price, supra, as authority for applying the rule stated in the last-named case to the crime of robbery. We think the conclusion reached by the Supreme Court of California is well founded, both on authority and logic. While most of the cases hold that ordinarily the crime of robbery cannot be committed when the property taken by the defendant belongs to him, yet there are a number of well-considered decisions which state that under some circumstances, as where the person in possession of the property holds it legally, such as a special bailee, a man may be guilty of robbery in the taking of even his own property. The most important part of the crime of robbery is the violent attack upon the person of another. That this is true is indicated by the fact that robbery is included in our code in the chapter dealing with crimes against the person, rather than that portion dealing with crimes against property, where the provisions in regard to burglary, larceny and similar crimes are found, and that the value of the property taken is utterly immaterial. Such being the case, it is immaterial that the information omits the name of the owner of the property taken, if it shows from whose possession it was taken and that force or fear was used. The information properly charged the crime of robbery.
The next question is as to whether the court erred in the admission of certain testimony. This requires a brief summary of the evidence in the case. Stated chronologically, it is substantially as follows: Guano and James were in company at five-thirty P.M. on the 28th of March, in a certain pool hall in Jerome, where they had been gambling for some time and lost some money. James, in substance, said to the proprietor of the game, that he wanted his money back, putting his hand inside of his sweater. The proprietor said he was perfectly willing to...
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