State v. Carroll

• Decision Date: 20 November 1973
• Docket Number: CA-CR,No. 1,1
• Citation: 21 Ariz.App. 99,515 P.2d 1197
• Parties: STATE of Arizona, Appellee, v. James Daniel CARROLL, Appellant. 519.
• Court: Arizona Court of Appeals

Page 1197

515 P.2d 1197

21 Ariz.App. 99

STATE of Arizona, Appellee, v. James Daniel CARROLL, Appellant.

No. 1 CA-CR 519.

Court of Appeals of Arizona, Division 1, Department A.

Nov. 20, 1973.

Rehearing Denied Dec. 27, 1973.

Review Denied Jan. 22, 1974.

Gary K. Nelson, Atty. Gen. by Michael C. Anderson and Cleon M. Duke, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Public Defender by Richard L. Thompson, Deputy Public Defender, Phoenix, for appellant.

OPINION

DONOFRIO, Presiding Judge.

The defendant, James David Carroll, appeals from a jury verdict of conviction of the crime of grand theft by false representation pursuant to A.R.S. § 13--661(A)(3), and from the sentence imposed thereon of not less than three nor more than five years in the Arizona State Prison. He had been charged by grand jury indictment with the aforementioned offense.

Briefly, the facts of the case taken in a light most favorable to upholding the verdict are as follows. In early 1971 the defendant and his mother were operating a small business under the name of Officeette Manufacturing, and they maintained a checking account in that name with the Thunderbird Bank. The authorized signatures for the account were 'Pauline Simmons' and 'James Sanders.' Mrs. Simmons is the defendant's mother and the defendant was using the assumed name of James Sanders in matters pertaining to the business. In mid-March the defendant and his mother kept an appointment with a used car salesman, Al Lindsay, and were sold two used vehicles. Mrs. Simmons testified that Lindsay took a check on Mrs. Simmons' personal account the evening of the meeting and agreed to hold it because there were not sufficient funds to cover it, and that Lindsay was told that the business account did not have sufficient funds to cover the sale.

Lindsay denied that any statements whatsoever were made concerning the status of the Office-ette account, and further testified that the first check, one which he held overnight and returned to defendant on delivery of the second car, was also issued on the Office-ette account. In any case, Lindsay eventually received a check on Office-ette signed only by James Sanders and the check was subsequently returned with notice of dishonor because of insufficient funds. The record points out that even if there were sufficient funds, the check would not have been honored because it needed both 'Simmons' and 'Sanders' signatures. There is further testimony, however, that the need for two signatures was not readily apparent to the ordinary businessman so that the check did not appear irregular because it had only one signature.

The business venture faltered or failed and the defendant left the state with one of the automobiles which Lindsay had sold him and left the matters of liquidating assets and satisfying creditors to his partner, Mrs. Simmons.

Defendant raises several questions for review on appeal, but we believe the following question is dispositive here, i.e., whether there was sufficient evidence to sustain the verdict of conviction of the above charge. Defendant urges there is a failure of proof for the reason that the State has not met the requirements of A.R.S. § 13--664. A.R.S. § 13--664 precludes conviction if there is a failure of compliance with the following part of the section which provides:

'. . . if the false pretense was expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof, is in writing. . . . or unless the pretense is proved by the testimony of two witnesses, or that of one witness and corroborating circumstances.'

See, State v. Holmes, 106 Ariz. 202, 472 P.2d 71 (1970). The only evidence on the point of false pretense or false representation introduced by the State was testimony of Al Lindsay and State's Exhibit No. 3, a check drawn on the Office-ette account and signed in the fashion of James Sanders. Therefore, in order to uphold the verdict in this particular case, we believe the State must have shown the check to be a false token or writing within the purview of A.R.S. § 13--664.

The common law gives a person the right to assume a name...