Rain v. State

• Decision Date: 30 December 1913
• Docket Number: Criminal 345
• Citation: 15 Ariz. 125,137 P. 550
• Parties: THOMAS RAIN, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

137 P. 550

15 Ariz. 125

THOMAS RAIN, Appellant, v. STATE, Respondent

Criminal No. 345

Supreme Court of Arizona

December 30, 1913

APPEAL from a judgment of the Superior Court of the County of Maricopa.J. C. Phillips, Judge.Affirmed.

The facts are stated in the opinion.

Mr James E. Nelson and Mr. David L. Bishop, for Appellant.

Mr. G P. Bullard, Attorney General, and Mr. Leslie C. Hardy Assistant Attorney General, for Appellee.

OPINION

CUNNINGHAM, J.

The defendant was convicted of the crime of burglary of the first degree, and appeals.The information charging the offense is as follows: "That on or about the fifteenth day of February, 1913, and before the filing of this information, at the county of Maricopa, state of Arizona, the said Francisco Diaz, Conrado Bustamante, and Thomas Rain did then and there willfully, unlawfully, feloniously, and burglariously enter the room, apartment, and tenement of one Frank Pascale, there situate, with the intent then and there and therein to commit the crime of larceny, contrary," etc.The codefendants pleaded guilty.This appellant entered his plea of not guilty, and upon a trial he was convicted.The appellant complains of error committed in refusing instructions requested, in modifying and giving as modified an instruction requested, in giving a voluntary instruction, in denying a motion to instruct the jury to acquit at the close of the state's evidence in chief, in the receipt in evidence of the exhibits, in permitting the introduction in evidence of the warrant of arrest, and in refusing a new trial because the jury was separated without leave of the court, after retiring to deliberate upon their verdict, and because one juror was separated from the other jurors and not accompanied by a bailiff, and because one not a member of the jury, and not a bailiff in charge of the jury, conversed with the jury in the jury-room in the absence of any bailiff, after they had retired to deliberate upon their verdict, and because the verdict is contrary to the law and the evidence.

The instructions asked, but refused in whole or in part, were numbered, and in considering them we will refer, for convenience, to their numbers.InstructionNo. 2, the refusal of which is assigned as error, requests the court to inform the jury that the information charges that the defendant did ". . . willfully, feloniously, burglariously, and forcibly break and enter into" the room; while the information actually charges that this defendant and his codefendants Bustamante and Diaz did ". . . willfully, unlawfully, feloniously, and burglariously enter the room."A charge that one "breaks and enters" is a materially different charge from one that he"entered the room."The request further informs the jury ". . . that if there is a reasonable doubt as to whether the defendant did so break into said room, . . . or aided or abetted in breaking into said room, . . . the jury cannot convict the defendant upon said information."If the law required a "breaking and entry" to be charged in the information in order to constitute burglary, that part of the requested instruction would be correct; but the law does not so define burglary, nor require such to be charged, nor require such to be established by proof in order to convict.Section 418, Penal Code of Arizona of 1901, defines burglary as follows: "Every person who enters any dwelling-house, office, room, apartment, tenement, shop, warehouse, store, saloon, mill, barn, stable, tent, vessel or railroad car with intent to commit grand or petit larceny or any felony; and every person who enters any outhouse or other building not above enumerated, with intent to commit any felony, is guilty of burglary."The word "enter" is construed by section 422 as used in the preceding paragraph to include an entrance of the offender into such ". . . room . . . or the insertion therein of any part of his body, or of any instrument or weapon held in his hand, or used or intended to be used to threaten or intimidate. . . ."Burglary is properly charged, under our statute defining that crime, by averring a burglarious entry.It is not necessary to charge a burglarious breaking.The information charges a burglarious entry, and the prosecution was only required to establish such entry.The instruction requested the court to charge the jury that the state was required to establish, beyond a reasonable doubt, that the defendant broke into the room, or aided or abetted others in breaking into the room, before they can convict.No such burden was on the state, and no error was committed in refusing such instruction.

Interwoven in the body of the request appears this proposition: "The court instructs the jury that the mere fact that the prosecuting attorney has filed an information against the accused does not raise any presumption that the accused has been guilty of any crime."This, of course, is a correct statement of the law; when properly requested, it is the duty of the trial court to so instruct the jury, but this proposition follows the above-mentioned erroneous statement of the charge in the information, and in turn is followed by the erroneous request that no conviction can be had unless the erroneous charge is established by the legal measure of proof, and this correct instruction could not be given, unless the said improper matters were eliminated -- unless the instruction as asked should be modified by eliminating the erroneous statements.Section 955, Penal Code of Arizona of 1901, directs that instructions in trials of criminal cases shall be controlled by the law applicable to trials in civil cases.Paragraph 1409, Civil Code of Arizona of 1901, directs that the instruction shall be given or refused as the same is asked.The court was therefore justified in refusing the instruction in toto as asked, for the reason it contained the erroneous propositions of law, and the court cannot be held in error because correct statements of the law were likewise interwoven with erroneous statements in the request as asked.This rule applies to other statements contained in the same request, but they need not be further mentioned.They are not sufficiently segregated in the request to entitle them to be considered independent of the erroneous matter.

RequestNo. 3 was modified by striking certain words, and given as thus modified.Appellant complains of this action of the court.The instruction as asked is as follows: "The court instructs the jury that the law of the state of Arizona provides that 'a conviction cannot be had on the testimony of an accomplice unless he is corroborated by other evidence which in itself and without the aid of the testimony of the accomplice tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof,'and in this casethe state relies upon the evidence of accomplices and the corroboration of their testimony for a conviction, and, before a conviction can be had, the jury must believe beyond a reasonable doubt that the corroborating testimony in itself, and without the aid of the testimony of the accomplice or accomplices, tends to connect the defendant with the commission of the offense, and if such testimony does not satisfy your minds or the mind of each of you beyond a reasonable doubt, then you should acquit the defendant."The words italicized were stricken, and the charge given omitting such words.Appellant contends that the instruction omitting these words left the jury to speculate as to whether certain evidence in the case was intended to corroborate the evidence of accomplices, or to establish the fact that a crime had been committed.This contention is untenable.The instruction as a whole informs the jury of the correct rule to be observed in the consideration of the evidence and of the sufficiency of the evidence upon which a conviction can be based.The words stricken added nothing to the sense of the instruction, and, omitted, the instruction still correctly states the same rule to be observed.No prejudice could result to appellant from striking out words which, if allowed to remain in the instruction, would not have changed the rule to be observed in arriving at a verdict.

The court refused instruction No. 5, which is as follows "The court instructs the jury that mere associating of the defendant with the accomplice or accomplices prior to the commission of the offense charged is not a sufficient corroboration to connect the defendant with the commission of the crime.The court further instructs the jury that there can be no conviction of the defendant upon the testimony of accomplices alone, however many there may be, if uncorroborated."The appellant contends that this instruction contains two propositions of law: First, the mere associating of defendant with the accomplices before the crime is not a sufficient corroboration of the evidence of accomplices to connect him with the crime charged in the information; and, second, that no conviction can be had upon the uncorroborated testimony of accomplices, and that the testimony of one accomplice is not sufficient to corroborate that of another accomplice.Instruction in No. 3, above discussed, fully covers the last proposition contained in this request, and the first is sufficiently covered in the other instructions...