State v. Bagby, 1103

• Decision Date: 29 October 1957
• Docket Number: No. 1103,1103
• Citation: 83 Ariz. 83,316 P.2d 941
• Parties: STATE of Arizona, Appellee, v. L. C. BAGBY, Appellant.
• Court: Arizona Supreme Court

Page 941

316 P.2d 941

83 Ariz. 83

STATE of Arizona, Appellee, v. L. C. BAGBY, Appellant.

No. 1103.

Supreme Court of Arizona.

Oct. 29, 1957.

John M. Levy, Phoenix, Emmett R. Feighner, Phoenix, of counsel, for appellant.

Robert Morrison, Atty. Gen., Charles C. Stidham, County Atty., Lawrence C. Cantor, Deputy County Atty., Phoenix, for appellee.

PHELPS, Justice.

Defendant L. C. Bagby was convicted of the crime of forgery, and appeals from the judgment and sentence; from the court's order denying his motion for a new trial, and from all intermediate orders entered therein.

The facts are that defendant was employed by Dr. Howard M. Purcell for a period of four or five weeks beginning sometime in August, 1956. During the period of his employment defendant did janitor work in the doctor's office and also aided in the installation of certain refrigeration units in apartments then owned by the mother of Dr. Purcell and in which Dr. Purcell's office was located. The doctor's secretary, Mrs. Feickert, had custody of his checkbook originally containing four hundred blank checks. Her custom during this period was to write his checks on this account and he would sign them. The checkbook was kept on a shelf underneath the desk to the right of the knee hole in the desk. Only she and Dr. Purcell were supposed to know where this checkbook was kept.

According to the testimony of Mrs. Feickert defendant had seen her remove the checkbook from this location more than once in order to write him a check for his wages for the week. Defendant denied this. It was developed later that blank checks numbered between 226 and 233 had been removed from this checkbook. When cleaning up the office defendant had the opportunity to remove blank checks from said checkbook. Check No. 231 removed from said book was presented to the J & Y Food Market by one Willie Newkirk and another man on October 12, 1956 and was cashed by said market. The check was not honored, and Dr. Purcell was notified. Upon examination the doctor then first discovered that six blank checks, including check No. 231, had been removed from his checkbook.

Thereafter a charge of forgery was preferred against Willie Newkirk, L. C. Bagby, and Helen Nicholson. Newkirk pleaded guilty, the cause was dismissed as to Nicholson, and defendant went to trial with the result above stated.

Defendant has presented four assignments of error for our consideration. Assignment I is predicated upon the refusal of the court to order an instructed verdict for defendant at the close of the State's case. Assignment II is based upon the court's denial of defendant's motion for a new trial. Both assignments are based upon the ground that the testimony of accomplices, Newkirk and Nicholson, was uncorroborated, and under the provisions of A.R.S. § 13-136, a conviction may not be had in the absence of such corroboration. The above section provides that:

'A conviction shall not be had on the testimony of an accomplice unless the accomplice is corroborated by other evidence which, in itself and without aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.'

There is no doubt that the requirements of the above statute must be met. We have had before us many times in cases of this kind the question of both the character and the quantum of evidence necessary to meet its requirements. We have held in a number of cases that circumstantial evidence is a sufficient corroboration of the testimony of an accomplice if it, in itself and without aid of the accomplice, tends to connect the defendant with the commission of the offense charged. Kingsbury v. State, 27 Ariz. 289, 232 P. 887; State v. Cassady, 67 Ariz. 48, at page 59, 190 P.2d 501; State v. Miller, 71 Ariz. 140, 224 P.2d 205.

In the instant case we have the following corroborating circumstances: (1) defendant worked for Dr. Purcell four or five weeks in August and September; that he did janitor work for him in cleaning up the office where Dr. Purcell kept his checkbook from which the check here involved, together with five other blank checks, were removed; (2) defendant was paid in the office by check and according to the doctor's secretary saw where she kept the checkbook (he of course cleaned up the office when the office staff was not present); (3) he had the opportunity to take the blank checks; (4) neither Newkirk nor Nicholson had ever been to Dr. Purcell's office nor did they know him or know where his office was located; (5) Newkirk and Nicholson were acquainted with both Bagby and his wife and visited in each others' homes; (6) Bagby and Newkirk worked together at Cudahy's and two or three other places; they had known each other, according to Newkirk, about nine months, and according to Bagby, about four months; (7) neither Newkirk nor Nicholson ever knew anyone other than Bagby who had worked for Dr. Purcell; (8) Newkirk cashed check No. 231 removed from Dr. Purcell's checkbook at the J & Y Food Market; (9) another man was with him at the time who had a scar on his face similar to a scar on defendant's face; (10) the Chinese boy who cashed the check was impressed by the scar to the extent that he wondered how he got it;...