State v. Arizona Mines Supply Co.

• Decision Date: 23 April 1971
• Docket Number: No. 10298,10298
• Citation: 107 Ariz. 199,484 P.2d 619
• Parties: , 2 ERC 1526, 46 A.L.R.3d 745, 1 Envtl. L. Rep. 20,286 The STATE of Arizona, Petitioner, v. ARIZONA MINES SUPPLY CO., and the Honorable Kenneth C. Chatwin, Judge of the Superior Court of the State of Arizona, County of Maricopa, Respondents.
• Court: Arizona Supreme Court

Page 619

484 P.2d 619

107 Ariz. 199, 2 ERC 1526, 46 A.L.R.3d 745,

1 Envtl. L. Rep. 20,286

The STATE of Arizona, Petitioner, v. ARIZONA MINES SUPPLY CO., and the Honorable Kenneth C. Chatwin, Judge of the Superior Court of the State of Arizona, County of Maricopa, Respondents.

No. 10298.

Supreme Court of Arizona, In Banc.

April 23, 1971.

Moise Berger, Maricopa County Atty., by Albert I. Firestein, Thomas W. Meissner, H. Charles Eckerman, Deputy County Attys., Phoenix, for petitioner.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Ralph Hunsaker, Phoenix, for respondents.

UDALL, Justice:

This is a special action, filed by the State of Arizona ex rel Moise Berger, Maricopa County Attorney, on December 10, 1970, seeking relief from a ruling by a Superior Court judge requiring that the State prove criminal intent as a pre-requisite to a conviction for violation of this state's Air Pollution Act, A.R.S. §§ 36--771 to 36--790. On December 15, 1970, we accepted jurisdiction of the state's petition for special action allowing time for both parties to submit additional briefs.

The facts out of which this controversy arose are as follows: On September 23, 1970, an information was filed by the County Attorney's office in the Superior Court of Maricopa County, charging defendant-respondent, Arizona Mines Supply Co., with two counts of 'air pollution', a misdemeanor. The information charged specifically that the defendant-respondent: on or about June 19, 1970 (Count I), and June 29, 1970 (Count II),

'did cause, suffer, allow or permit the discharge into the atmosphere from a single source of emission, air contaminants for a period or periods aggregating more than three minutes in one hour as dark as or darker in shade than that designated as No. 2 on the Ringelmann Chart as published by the U.S. Bureau of Mines, or of an opacity equal to or greater than air contaminants designated as No. 2 on the Ringelmann Chart, all in violation of Sec. IV Regulation 1, Maricopa County Air Pollution Control Regulations, Feb. 9, 1970 and A.R.S. Sec. 36--779 and 36--789.01, May 18, 1970.'

This case was set for trial on December 10, 1970. Prior to selection of the jury, the State filed a 'Motion in Limine', in which it sought to exclude certain anticipated evidence, requesting that the court exclude: (1) any evidence as to the amount of money expended by Arizona Mines Supply Co. for air pollution equipment; and (2) any testimony which defendant might seek to introduce with regard to its lack of criminal intent to violate the statute and regulations. The court ruled in favor of the defendant on both points, ordering that the motion in limine be denied. From the denial the State filed this petition for special action. In response thereto, defendant-respondent has advanced eight arguments which we shall consider in the order submitted.

(I) 'The Maricopa County Air Pollution Control Regulations are Invalid as Being Passed Prior to the Effective Date of Senate Bill No. 1.'

We find this argument to be totally without merit since the legislature expressly provided that rules, regulations and standards adopted by a board of supervisors or the state board of health prior to the effective date of Article 8, consisting of sections 36--771 to 36--790, need not be readopted. See footnote to § 36--770, A.R.S.

(II) 'The Information does not Charge the Defendant With the Commission of an Offense.'

Respondent was charged by information, as quoted above, with violating Section IV, Regulation 1, Maricopa County Air Pollution Control Regulations and §§ 36--779 and 36--789.01 A.R.S. While it is true that of these three sections the only section actually violated was Section IV, Regulation 1, supra, the other two sections, A.R.S. §§ 36--779 and 36--789.01, were cited in the information for Arizona Mines' benefit, in order that the corporation might be better informed as to the possible penalty and the authority under which the Maricopa County Air Pollution Control Regulations were formulated. Respondent was adequately and appropriately charged.

(III) 'The Information Filed Fails to Sufficiently Inform the Defendant of What Offense is Intended to be Charged for the Reason that it does not Sufficiently Define: (1) The Offense; and (2) the Time and Place of its Occurrence.'

Though we have already ruled that defendant was appropriately charged we feel it worthwhile to answer the above-stated argument. Rule 118, Rules of Criminal Procedure, 17 A.R.S., specifically provides that an information need not contain an allegation of the time of the commission of the offense other than 'on or about such time', unless such allegation is necessary to charge the offense under Rule 115, Rules of Criminal Procedure, A.R.S. In State v. Maxwell, 103 Ariz. 478, 445 P.2d 837 (1968), we held that an information is sufficient and Rule 115 satisfied where the information fairly indicates the crime charged, states the essential elements of the alleged offense and is sufficiently definite to apprise the defendant of the crime charged so as to allow him to prepare his defense. Here, defendant-respondent was sufficiently informed of the crime with which it was charged. The exact hour in which the offense was committed need not be alleged since time is not an essential element of the offense of polluting the air. An identical issue was raised and similarly disposed of in People v. Plywood Mfg's of California, 137 Cal.App.2d Supp. 859, 291 P.2d 587 (1955), appeal dismissed, Union Oil Co. v. People of the State of California, 351 U.S. 929, 76 S.Ct. 787, 100 L.Ed. 1458, rehearing denied 351 U.S. 990, 76 S.Ct. 1046, 100 L.Ed. 1503.

'(18, 19) The defendant criticises the complaint because the hour is not specified during which, according to the charge, illegal smoke was emitted for more than three minutes. This was not a legal defect. Section 955, Penal Code, declares: 'The precise time at which the offense was committed need not be stated * * * except where the time is a material ingredient in the offense.' A complaint that charges that the defendant violated an ordinance forbidding rubbish fires before 7 a.m., or after 11 a.m., in any calendar day would, of necessity, have to allege that the defendant had a fire either before 7 a.m. or after 11 a.m., for in such a case the time is an ingredient of the offense. Not so here, except of course, that the illegal smoke must exist for three minutes in an hour. 'What hour?' is quite immaterial; it need not be specified. Obviously, it would be fairer to the defendant to allege the specific date and hour that the People expect to prove, based upon the information at hand before the complaint was filed. The law does not require, however, that the precise time be given. See People v. Fremont, 1941, 47 Cal.App.2d 341, 117 P.2d 891, 893; People v. Sanchez, 1939, 35 Cal.App.2d 231, 95 P. 169, 173. Moreover, if in charging a violation of section 24242 the time is such an ingredient of the offense that the precise hour should be alleged, failure to do so will not warrant a reversal where--as in this case--no prejudice to the defendant appears from the deficiency in the pleading.' 91 P.2d at 594--595.

The argument that the information failed to sufficiently define the place of occurrence fails for basically the same reasons mentioned above. The law does not require that the precise place the offense was committed be given. See Rule 118, Rules of Criminal Procedure, A.R.S., wherein it is stated that an information need not contain an allegation of the place of commission of the offense, 'unless such allegation is necessary to charge the offense under Rule 115.' Here the information sufficiently alleged that the offense occurred in Maricopa County. An information is sufficient if the offense is set forth in such manner that a person of common understanding would know what was intended. State v. Suarez, 106 Ariz. 62, 470 P.2d 675 (1970). State v. Terrell, 103 Ariz. 453, 445 P.2d 429 (1968). It should be remembered that in the event such additional information should prove to be essential for defendant to prepare a defense, his remedy would be by way of a requst for a bill of particulars pursuant to Rule 116, Rules of Criminal Procedure, 17 A.R.S. See also State v. Lombardo, 104 Ariz. 598, 457 P.2d 275 (1969); State v. Terrell, supra. In any event, respondent has shown no resulting prejudice. We find no error here.

(IV) 'That the Law is Void for Vagueness and Violative of the Fourteenth Amendment of the United States Constitution' Since 'No Guidelines are Set Down Which Set Forth a Reasonable Standard of Guilt. The So Called Ringelmann Chart * * * is a Subjective Scheme for Reading Smoke Density * * *'

We find this argument totally unacceptable. In almost every jurisdiction in which the use of the Ringelmann Chart has been contested, its use as a standard for prosecution has been upheld. Northwestern Laundry v. City of Des Moines, 239 U.S. 486, 36 S.Ct. 206, 60 L.Ed. 396 (1916); People v. Plywood Mfg's of California, supra; People v. International Steel Corp., 102 Cal.App.2d Supp. 935, 226 P.2d 587 (1951); Sittner v. Seattle, 62 Wash.2d 834, 384 P.2d 859 (1963); Board of Health v. New York Central Railroad Co., 10 N.J. 294, 90 A.2d 729 (1952); Penn-Dixie Cement Corporation v. City of Kingsport, 189 Tenn. 450, 225 S.W.2d 270 (1949); City of Miami v. City of Coral Gables, 233 So.2d 7 (Fla.App., 1970).

In People v. International Steel Corp., supra, the use of the Ringelmann Chart was explained and upheld in the face of an attack on the California Air Pollution Act as having set forth no ascertainable standard of guilt by reason of its reference to the Ringelmann Chart. To this argument the court responded:

'While, as already stated, the courts take notice of the Ringelmann Chart, our notice in this case is fortified by a copy which was introduced in evidence and is in the record. It is a plain white piece of paper divided...