State v. Allen
| Decision Date | 06 April 1965 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 1 Ariz.App. 161,400 P.2d 589 |
| Parties | The STATE of Arizona, Appellee, v. Norman G. ALLEN, Appellant. * 2. |
| Court | Arizona Court of Appeals |
Skousen, McLaws & Skousen, by Richard E. Skousen, Mesa, for appellant.
Robert W. Pickrell, Former Atty. Gen., by Stirley Newell, Asst. Atty. Gen., Darrell F. Smith, Atty. Gen., for appellee. MELVYN T. SHELLEY, Superior Court Judge.
The defendant was charged with petty theft occurring on July 15, 1963, with a prior conviction, a felony. Defendant admitted the prior conviction before trial, the trial proceeded on the charge of petty theft, and the defendant was convicted thereof. The facts are as follows:
The defendant, on July 15, 1963, entered a photo shop in Phoenix, Arizona, looked around for several minutes, then took a camera from the display counter, dropped it into a bag and walked to the front of the shop. A clerk asked if he could help. Defendant asked if they had any Christmas cards in stock. When told there were none, the defendant asked the clerk if he could tell him who carried them. After this conversation, the defendant stood around for a few minutes more and went out the door. The clerk followed and asked if he could see what was in the sack. The defendant refused and walked rapidly away, but was intercepted by the manager of the shop, at which time the defendant dropped the sack with its contents.
The clerk noticed nothing unusual about the defendant's physical appearance, gait or speech. The defendant told the manager to let him go when he was stopped. He admitted taking the camera to the Phoenix policeman who came to investigate.
The defendant testified that he was an epileptic of several years and a chronic alcoholic, and that he had been drinking on the date in question, but the extent thereof was never stated at the trial. On direct examination of the defendant, he testified as follows:
'Q No, do you recall the incidents which happened on the 15th of July which you heard testimony on here, yesterday?
'A No, sir, not all of it, I do not.
'Q Would you describe to us just what you do remember concerning that day?
'A Well, sir, there was two witnesses----
'Q No, what you remember yourself, not what was said here yesterday, but what you recall as what happened on that day, or your own memory.
'Q Yes, I realize----
'A That's----
'A No, sir.'
However, on cross examination he testified as follows:
'Q Well, do you recall just a few minutes ago saying that you remember taking the camera from the shelf?
'A No.
'Q You don't recall that? Did you say that, sir?
'A No, sir.
'Q You didn't say that. Did you say you were guilty, do you recall saying that you were guilty--'I am guilty, I am the one?'
'A No, sir, I do not recall that.'
No evidence whatsoever was introduced by the defendant claiming that he actually had an epileptic seizure of any kind on or about the time of the theft, and although he gave on cross examination the symptoms immediately prior to a seizure and those immediately following, he at no time testified to having any of those symptoms on the day in question; and the only other testimony with respect thereto was the hospital records which showed an epileptic seizure about eight days before the day in question, plus some others at more remote times.
The defendant appealed on three grounds.
The first ground of appeal is based on the contention that Section 13-673, A.R.S. in the supplement, the same being the shoplifting statute, repeals by implication the crime of petty theft. However, of necessity, the question is actually much broader because shoplifting which is a misdemeanor has no value limits, and therefore if the shoplifting statute impliedly repeals the petty theft statute as to all matters covered by the shoplifting statute, then it repeals by implication not only the crime of petty theft but of grand theft with respect to all acts covered by the shoplifting statute.
The case of State v. Morf, 80 Ariz. 220, 295 P.2d 842 (1956), states the general rule that repeals by implication are not favored and that repeal by implication will be determined only if the elements of the crime set forth in the later statute are substantially the same as that of a previous gereral penal statute and are not merely accumulative or auxiliary to the previous statute. Therefore, the first question is whether or not the elements in the crime of shoplifting are substantially the same as the elements in the crime of theft, within the places covered by the shoplifting statute. Said statute reads:
'A person who wilfully takes possession of any goods, wares or merchandise offered for sale by any wholesale or retail store or other mercantile establishment without the knowledge or consent of the seller, with the intention of converting such goods, wares or mrechandise to his own use without having paid the purchase price thereof, is guilty of shoplifting or wilful concealment, punishable upon conviction by a fine of not more than two hundred dollars, imprisonment for not more than thirty days, or by both such fine and imprisonment.' Section 13-673, A.R.S. Supplement.
The first element in the shoplifting crime is that of wilfully taking possession of any goods, wares or merchandise offered for sale by any wholesale or retail store or mercantile establishment, while the first element in the crime of theft is that of wilful taking. Are these elements substantially the same? In 52 C.J.S. Larceny § 6, page 801, we read:
'* * * in order to constitute a taking the prospective thief must have obtained at some particular moment the complete, independent, and absolute possession and control of the thing desired adverse to the rights of the owner therein.'
From the foregoing it clearly appears to us that the first element of each crime is essentially the same with neither being broader than the other. Both crimes require that it be without the consent of the owner. Also, the case of Davis v. State, 41 Ariz. 12 at pages 15 and 16, 15 P.2d 242 at pages 243, 244 (1932), is the authority for the proposition that there can be a taking without an asportation of the goods taken. Theft requires a taking plus an asportation. We quote from this case as follows:
The...
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State v. Anderson
...be prosecuted under the statute which carries the lesser penalty. See State v. Fary, 16 N.J. 317, 108 A.2d 593 (1954); State v. Allen, 1 Ariz.App. 161, 400 P.2d 589 (1965); People v. Lubow, 29 N.Y.2d 58, 67, 323 N.Y.S.2d 829, 834, 272 N.E.2d 331, 335 (1971); People v. Hulse, 557 P.2d 1205 I......
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...is further buttressed by the absence of even the minimal asportation requirement of common-law larceny. See State v. Allen , 1 Ariz. App. 161, 163, 400 P.2d 589 (1965) (prior version of shoplifting statute clearly omits element of asportation).¶17 Morris nonetheless contends that we should ......
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