Marshall v. State

• Decision Date: 19 May 1917
• Docket Number: Criminal 421
• Citation: 165 P. 313,19 Ariz. 44
• Parties: WM. HENRY MARSHALL, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

165 P. 313

19 Ariz. 44

WM. HENRY MARSHALL, Appellant, v. STATE, Respondent

Criminal No. 421

Supreme Court of Arizona

May 19, 1917

APPEAL from a judgment of the Superior Court of the county of Graham. A. G. McAlister, Judge. Affirmed.

Mr. W K. Dial, for Appellant.

Mr Wiley E. Jones, Attorney General, and Mr. R. Wm. Kramer and Mr. Geo. W. Harben, Assistant Attorneys General, for the State.

OPINION

CUNNINGHAM, J.

The appellant demurred to the information filed. The demurrer is upon the grounds that the information does not substantially conform to the requirements of paragraph 935 of the Penal Code of Arizona of 1913, in the particular that it does not name the party charged with the commission of the offense in the body of the information, and that it is not direct and certain as it regards the party charged, as required by paragraph 936 of the Penal Code of 1913. The demurrer was overruled.

The information, omitting the title of the court, is as follows:

"The State of Arizona, Plaintiff, v. Ed Knight, James Bozelli William Marshall, Tom Williams, Jose Garcia, C. B. (John) Hellings, Defendants. Information. In the name and by the authority of the state of Arizona, said defendants are accused by the county attorney of Graham county, state of Arizona, by this information, of the crime of misdemeanor committed as follows: That said defendants, on or about the 13th day of April, 1916, and before the filing of this information, at and in the county of Graham, state of Arizona, willfully, knowingly, unlawfully, did introduce into the state of Arizona, and into the county of Graham in said state, intoxicating liquors, to wit, whiskey, contrary," etc.

Paragraph 934 of the Penal Code of Arizona of 1913 requires that the information must contain: (1) The title of the action, specifying the name of the court to which the same is presented and the names of the parties. (2) A statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. Paragraph 935, Id., sets forth a form for informations, and declares that if the form suggested and set forth is substantially followed the information is sufficient. The information filed does not allege the date of the filing. The names of the defendants are given in the title of the action, but not specified in the statement charging the acts constituting the offense. The title of the action is referred to for the names of the parties charged by the use of the words "said defendants." Paragraph 936, Id., requires that the information must be direct and certain as it regards: (1) The party charged; (2) the offense charged; (3) the particular circumstances of the offense charged, when necessary.

"The . . . information is sufficient, if it can be understood therefrom: . . . (3) That the defendant is named, or if his name cannot be discovered, that he is described by a fictitious name. . . ." Paragraph 943, Penal Code 1913.

"No . . . information is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits." Paragraph 944, Penal Code 1913.

The appellant is named in the title of the action, and that name is clearly referred to in the commencement of the information by the words "said defendants." The defendants named in the title of the action and so referred to are certainly the parties directly charged. Can this be misunderstood? This defendant is most certainly named within the four corners of the information, and as certainly the information charges this defendant with the commission of the alleged offense. If we should hold otherwise, we would disregard paragraph 944 of the Penal Code of Arizona of 1913 and hold that the information is imperfect and defective in form, but has no tendency to the prejudice of a substantial right of the defendant upon the merits. The omission of the date on which the accusation is made by the county attorney, and the reference to the title of the cause for the name of the party charged is a practice to be discouraged in the most positive terms, but, after all, these matters as they occur in this particular information are nothing more important than defects and imperfections in the form of the information, and do not seem to prejudice the rights of this appellant upon a consideration of a demurrer. The demurrer was overruled without the commission of reversible...