Kimball v. Territory of Arizona

• Decision Date: 25 March 1911
• Docket Number: Criminal 295
• Parties: ELIAS S. KIMBALL and RICHARD A. SHIPP, Defendants and Appellants, v. TERRITORY OF ARIZONA, Respondent
• Court: Arizona Supreme Court

115 P. 70

13 Ariz. 310

ELIAS S. KIMBALL and RICHARD A. SHIPP, Defendants and Appellants, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 295

Supreme Court of Arizona

March 25, 1911

APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for Graham County. Fletcher M. Doan, Judge. Reversed and remanded.

The facts are stated in the opinion.

Frederick S. Nave, A. C. McKillop and W. K. Dial, for Appellants.

The defendants should be discharged by reason of the insufficiency of the verdict to support a judgment of conviction. The jury found the defendants guilty of one element of the offense charged but of no more. "It is a very familiar principle in the administration of the criminal law that all the circumstances essential to sustaining the indictment must be expressly found by the jury, and the court cannot supply a defect in the finding of the jury by intendment of implication." Commonwealth v Call, 21 Pick. (Mass.) 513, 32 Am. Dec. 284; People v. Small, 1 Cal.App. 320, 82 P. 87; People v Cummings, 117 Cal. 497, 49 P. 576; United States v John, 1 Black (66 U.S.), 484, 17 L.Ed. 225; People v. Tilley, 135 Cal. 61, 67 P. 42; Ring v State, 42 Tex. 282; State v. French, 50 La. Ann. 461, 23 So. 606; State v. Oakley, 103 N.C. 408, 9 S.E. 575; People v. Lee, 237 Ill. 272, 86 N.E. 573. The verdict has been accepted and recorded and the jury discharged without our consent, and without finding us guilty of any crime, and in effect finding us not guilty of any crime. We have been in jeopardy and are entitled to be discharged. People v. Small, 1 Cal.App. 320, 82 P. 87; People v. Terrill, 132 Cal. 497, 64 P. 894; State v. Stephanus, 53 Or. 135, 99 P. 428, 17 Am. & Eng. Ann. Cas. 1146.

John B. Wright, Attorney General, for Respondent.

The indictment shows that the defendant, before the finding of the indictment, with intent to unlawfully and feloniously cheat and defraud one Layton, then and there unlawfully, knowingly and feloniously, by the use of a trick and deception, false and fraudulent representations, statements and pretenses, and by means and by use of the confidence game, committed the unlawful acts which the indictment specifically alleges to be felony. The statute is taken from the state of Missouri, and the construction of Missouri should therefore be controlling upon this court. State v. Wilson, 223 Mo. 156, 122 S.W. 701. "The verdict, 'guilty as charged in the indictment,' was justly found, and was good in law." People v. De Cleer, 60 Cal. 61. "The form of the verdict is immaterial, if the intention to convict of the crime is unmistakably expressed." People v. Tilley, 135 Cal. 61, 67 P. 42; People v. McCarty, 48 Cal. 557; People v. Jochinsky, 106 Cal. 638, 39 P. 1077.

OPINION

KENT, C.J.

The appellants were indicted under the provisions of section 489 of the Penal Code. This section, so far as applicable, reads as follows: "Every person who, with intent to cheat and defraud, shall obtain . . . from any other person . . . any money, property, or valuable thing whatever, by means or by use of any trick or deception, or false or fraudulent representation, or statement of pretense, or by any other means or instruments, or device, commonly called the 'confidence game,' . . . shall be deemed guilty of a felony." The jury rendered a verdict as follows: "We, the jury duly impaneled and sworn in the above-entitled action, upon our oaths do find the defendants guilty of obtaining property by false representations as charged in the indictment."

The first assignment of error urged by the appellants is that the verdict is insufficient to support a judgment of conviction, in that the verdict does not find against the defendants upon the issue raised in the case upon the indictment and plea of not guilty; the claim being that the verdict finds the defendants guilty of obtaining property by false representations, and does not find that the property was obtained with intent to cheat or defraud, or that the false representations were in the nature of a confidence game, or that the defendants, or either of them, knew that the representations, or any of them, were false or fraudulent; and, further, that the verdict does not find that the property was obtained within the county in which the indictment was found, or that the representations were made within such county. The appellants further claim that by the verdict the jury found the defendants guilty of a matter not charged against them, and that the verdict was a verdict of acquittal upon the essential elements of the offense charged, to wit, the element of intent to cheat and defraud, the element of knowledge or design, the element of the knowledge of the falsity of the representations, the element of the confidence game, and the element of venue.

The rule is universal that a verdict of guilty is a finding of the jury upon every element necessary to constitute the crime as laid in the indictment, and that a verdict which finds a defendant guilty of but one of a number of essential elements of a crime is not a verdict sufficient to sustain a judgment of conviction for the crime charged. Under our statutes, the plea of not guilty puts in issue every material allegation of the indictment, and no judgment of conviction can be given unless the jury expressly find against the defendant upon the issue. The verdict of the jury in the case before us found the defendants guilty of obtaining property by false representations as charged in the indictment. The obtaining property by false representations alone is not a crime under any of the provisions of our Penal Code. Under section 481 of the Penal Code, any person who knowingly and designedly by false or fraudulent representations defrauds any other person of money or property is guilty of a misdemeanor, but there the mere obtaining of money by false or fraudulent representation or pretense is not sufficient to constitute the crime specified in that section, unless the money so obtained falsely and fraudulently was obtained knowingly, and designedly. Under section 489, under which the indictment in this case was drawn as found by the trial court, the obtaining of property by false representation is not in itself made a crime, except that it be done with intent to cheat and defraud. The intent is a material and necessary element of the crime. Therefore, if the verdict before us simply finds the defendants guilty of obtaining property by false representations and does not find that the defendants, with intent to defraud, obtained the property by false representations, then an essentially necessary element of the crime has not been found by the jury. Cases holding that a verdict which specifies one element of a crime and omits other essential elements will not support a judgment of conviction are numerous, and there are none, so far as we are aware, holding the contrary. Wharton's Criminal Pleading and Practice, 9th ed., 756; Commonwealth v. Call, 21 Pick. (Mass.) 513, 32 Am. Dec. 284; People v. Small, 1 Cal.App. 320, 82 P. 87; People v. Cummings, 117 Cal. 497, 49 P. 576; People v. Tilley, 135 Cal. 62, 67 P. 42; Ring v. State, 42 Tex. 282; State v. French, 50 La. Ann. 461, 23 So. 606; Huffman v. State, 89 Ala. 33, 8 So. 28; State v. Oakley, 103 N.C. 408, 9 S.E. 575; State v. Modlin, 197 Mo. 376, 95 S.W. 345; State v. Stephanus, 53 Or. 135, 99 P. 428; State v. Pollock, 105 Mo.App. 273, 79 S.W. 980; State v. De Witt, 186 Mo. 61, 84 S.W. 956; Harris v. State, 53 Fla. 37, 43 So. 311; State v. Parker, 152 N.C. 790, 67 S.E. 35.

Counsel for the respondent do not, as we understand their position controvert the general rule, but they claim that, by reason of the insertion in the verdict of the words "as charged in the indictment," the verdict in this case is not within the rule. A verdict of "not guilty as charged in the indictment" is, of course, equivalent to a verdict of not guilty, and is a finding by the jury upon all of the essential allegations of the indictment. It is also true that in many verdicts there occur words which can be ignored as surplusage, but they are words which have not to do with the issues directly raised by the plea of not guilty, as, for example, in the case of People v. Jochinsky, 106 Cal. 640, 39 P. 1077. There the verdict was, "We, the jury, find the defendants guilty of burglary in the first degree, and we further find that the goods taken from Prince's store on the night of the 13th or 14th of April, 1893, were brought from Sonoma county into the city and county of San Francisco, state of California, by the defendant." There the jury directly found the defendant guilty of burglary in the first degree. This was a finding of all the essential elements of the crime. The court properly held that the general verdict of guilty implied proof of all the facts necessary to conviction, and that the latter part of the verdict was mere surplusage, resulting in no prejudice to the appellant. We do not see how it is possible to treat the words in the indictment, "of obtaining property by false representations," as mere surplusage, because they are words which have to do with one of the issues directly raised by the plea of not guilty. It is a direct finding of the jury that upon one of the elements of the statute the defendants were guilty, to wit, the obtaining of the money by false representations, and it is also a direct refusal to find upon another essential element, to wit, the intent to cheat and defraud. The words "as charged in the indictment" qualify the phrase "of obtaining property by false representations." They serve to specify the property obtained and the false representations made, but with the expression in the verdict of one of the elements...