State v. Bundy

• Court: Arizona Supreme Court
• Writing for the Court: BERNSTEIN
• Citation: State v. Bundy, 372 P.2d 329, 91 Ariz. 325, 99 A.L.R.2d 808 (Ariz. 1962)
• Decision Date: 20 June 1962
• Docket Number: No. 1211,1211
• Parties: , 99 A.L.R.2d 808 STATE of Arizona, Appellee, v. Cleve Robert BUNDY, Appellant.

Page 329

372 P.2d 329

91 Ariz. 325, 99 A.L.R.2d 808

STATE of Arizona, Appellee, v. Cleve Robert BUNDY, Appellant.

No. 1211.

Supreme Court of Arizona, In Banc.

June 20, 1962.

Hash & Bernstein, Phoenix, for appellant.

Robert W. Pickrell, Atty. Gen., Stirley Newell, Asst. Atty. Gen., for appellee.

BERNSTEIN, Chief Justice.

Defendant was tried and convicted on a charge of Receiving Stolen Property of the value of more than $50, a felony. The state's principal witness, defendant's seventeen year old cousin, Kenneth, testified that the defendant came to his house on November 29, 1960, and asked him if he knew of any place where they could make some fast money. Kenneth indicated he knew of a place, and defendant and the youth drove to an apartment near 15th Avenue and Camelback in Phoenix. The defendant parked the car 'down a little ways' from the apartment while Kenneth went in. The apartment belonged to a jeweler and Kenneth had previously been in it in the company of the jeweler's son, a school friend. On that occasion, Kenneth had observed the location where a key to the back door was kept, over an outside water heater. Kenneth took this key, entered the apartment, and returned to the defendant's car with two watches, a gold ring, and several other items of jewelry. The two then drove to Glendale where defendant attempted to sell one of the watches at a pawn shop. The clerk in this shop indicated that the watch was too valuable for them to handle and recommended a shop on Central Avenue in Phoenix. At defendant's bidding, Kenneth threw all of the items taken from the apartment except the two watches and the ring into a canal because they weren't very valuable. The two then returned to Kenneth's home, where the defendant indicated that they should wait until things cooled off before trying to sell the items they had retained. Kenneth then gave the watches and ring to the defendant in exchange for $10 and a promise of $10 later.

The defendant testified that he had gone over to his cousin's home on the day indicated, and had driven him to 19th Avenue and Camelback on an errand. He denied taking Kenneth to the apartment or going to Glendale. Defendant testified that he loaned Kenneth $10 'for a couple of days' and took the two watches and the ring as security. Defendant stated that Kenneth didn't tell him where he got the jewelry and that defendant didn't ask him. When he learned from Kenneth's mother that his cousin had been taken itno custody for breaking into an apartment, the defendant called the County Attorney's office and turned the watches and the ring over to a representative of that office.

The defendant makes five assignments of error going to four claimed grounds for reversal of the judgment.

It is first contended that the trial court should have granted a motion to quash the information or a motion for a directed verdict at the end of the evidence, because the information was so indefinite and uncertain in regard to the description of articles received by defendant that defendant could not plead former jeopardy, should he at some later time be tried for receiving the same property.

Two decisions in this jurisdiction support the general proposition upon which defendant relies. In State v. Kuhnley, 74 Ariz. 10, 242 P.2d 843 (1952), an information charging the receipt of stolen property consisting of two sewing machines, a saw, a radio, and two typewriters was held fatally defective since it failed to set out the serial numbers and trade names of the property. There the court noted, 'The county attorney with a minimum of effort could have ascertained these identification marks and described the property so that there would be no doubt as to which property the defendant was charged with receiving * * *.', 74 Ariz. at 16, 242 P.2d at 847.

Quite recently we have applied this same rule in the case of State v. Corvelo, 91 Ariz. 52, 369 P.2d 903 (1962), where the defendant was charged with receiving stolen property consisting of 'personal property belonging to one Lavonne Gillespie,' without any indication of nature or value. This information was also held fatally defective.

In the case at bar, the property was described as 'one braille man's watch, one Hamilton ladies' watch, and one gold ring, of the value in excess of Fifty Dollars in lawful money * * *.' Here, in contrast to the Kuhnley case, trade names of the items which bore such were given, and the type of watch was indicated by the designation 'man's' or 'ladies'.' Testimony in the case indicated that many watches do not have serial numbers. We conclude that this description does not suffer from the same degree of indefiniteness as those considered in the Kuhnley and Corvelo cases, supra, and hold that it is not fatally defective under the rule of those cases.

Defendant's contention that the information is defective for the additional reason that it charges in one count disjunctive allegations requiring different grades and qualities of proof is without merit since the information charged the crime in the language of the statute, A.R.S. § 13-621, as permitted by 17 A.R.S. Rule Crim. Proc. 115. Moreover, 1( A.R.S. Rule Crim. Proc. 138 permits disjunctive or alternative charges.

The defendant next argues that, since A.R.S. § 13-621, subd. B ¹ creates a presumption that the property was stolen and that the person receiving it had knowledge that it was stolen, where the property consists of jewelry and was received from a person under the age of 18 years at other than a fixed place of business, it was error to admit evidence which tended directly to prove the defendant's knowledge that the items were stolen. Where evidence is available to prove the elements of the offense charged, reliance by the state upon the presumption is unnecessary, People v. Fiorito, 413 Ill. 123, 108 N.E.2d 455 (1952). Nor was the testimony of defendant's cousin inadmissible because it tended to show that defendant could have been...