Qualey v. Territory of Arizona

• Decision Date: 19 March 1902
• Docket Number: Criminal 162
• Citation: Qualey v. Territory of Arizona, 68 P. 546, 8 Ariz. 45 (Ariz. 1902)
• Parties: I. L. QUALEY, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

68 P. 546

8 Ariz. 45

I. L. QUALEY, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 162

Supreme Court of Arizona

March 19, 1902

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Graham. F. M. Doan, Judge. Affirmed.

The facts are stated in the opinion.

W. C McFarland, and J. M. McCullom, for Appellant.

C. F Ainsworth, Attorney-General, for Respondent.

OPINION

SLOAN, J.

-- The appellant was indicted, tried, and convicted for the violation of paragraph 881 of the Penal Code. The charging part of the indictment reads as follows: "I. L. Qualey is accused by the grand jury of the county of Graham territory of Arizona, duly impaneled and sworn, by this indictment, found this 5th day of October, A.D. 1900, of the crime of felony, committed as follows: The said I. L. Qualey, who was then and there an officer of a corporation, to wit, president and director of the Arizona and Boston Copper Mining Company, a corporation created organized, and existing under and by virtue of the laws of the said territory of Arizona, on or about the 28th day of February, A.D. 1900, and before the finding of this indictment, at the county of Graham and territory of Arizona, did then and there, as said officer of said corporation, and while acting as such officer of said corporation, willfully, knowingly, and feloniously alter, mutilate, and falsify, and cause to be altered, mutilated, and falsified, a book in writing belonging to said corporation, to wit, the ledger of the said Arizona and Boston Copper Mining Company, by erasing and altering the figures '2,515.63' after the following words, 'a/c C. A. Qualey,' on page 37 of said ledger, and falsify the same by writing and substituting in lieu thereof the figures '$50.00,' with intent then and there to defraud said corporation and the stockholders thereof." It is objected that the indictment is bad for two reasons: 1. That the name of the party whom defendant caused to alter, mutilate, and falsify the record in question was not stated; and 2. For the reason that the indictment stated two offenses.

Upon the first ground appellant cites the case of United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819. The indictment in the Simmons case charged that the defendant "did knowingly and unlawfully cause and procure to be used a still," etc. The court held the indictment insufficient in the following language: "Since the defendant was not charged with using the still, boiler, and other vessels himself, but only in causing and procuring some one else to use them, the name of that person should have been given. It was neither impracticable nor unreasonably difficult to have done so. If the name of such person was unknown to the grand jurors, the fact should have been stated in the indictment." In this case the charge is that the defendant did "alter, mutilate, and falsify, and cause to be altered, mutilated, and falsified, a book in writing." The distinction between the two indictments is obvious. In the one the defendant was not charged with any act of participation in the offense. In the latter this distinctly appears from the allegations of the indictment. Again, a reading of the indictment discloses that but one alteration is complained of. The allegation that the defendant altered and caused to be altered the book in question can have relation to but one act of alteration. In a sense, one who does a thing causes it to be done. While it may have been unnecessary to have charged the offense as having been done and caused to be done by the defendant, the language used, taken in connection with its context, is not open to the objection that two offenses are therein charged.

The court, in its charge to the jury, stated the full contents...