State v. Crawford

• Decision Date: 18 June 1920
• Docket Number: Criminal 488
• Citation: State v. Crawford, 21 Ariz. 501, 190 P. 422 (Ariz. 1920)
• Parties: STATE, Appellant, v. JOSEPH M. CRAWFORD and FRANK NELSON, Respondents
• Court: Arizona Supreme Court

190 P. 422

21 Ariz. 501

STATE, Appellant, v. JOSEPH M. CRAWFORD and FRANK NELSON, Respondents

Criminal No. 488

Supreme Court of Arizona

June 18, 1920

APPEAL from a judgment of the Superior Court of the County of Pinal. O. J. Baughn, Judge. Reversed, with directions.

Mr Wiley E. Jones, Attorney General, Mr. L. B. Whitney Assistant Attorney General, and Mr. H. G. Richardson, County Attorney, for the State.

Mr. E P. Patterson, for Respondents.

OPINION

ROSS, J.

The charge against respondents was set forth in the information in this language:

"The said Joseph M. Crawford and Frank Nelson, on or about the 30th day of January, 1920, and before the filing of this information, at and in the county of Pinal, state of Arizona, did then and there wilfully and unlawfully attempt to manufacture intoxicating liquor in the aforesaid county of Pinal, state of Arizona, contrary," etc.

Respondents' demurrer to the information was: Insufficient facts; that the acts constituting the offense in ordinary and concise language were not stated; and that the information failed to state any act which would constitute an attempt to manufacture intoxicating liquor. The demurrer was sustained, and from the order sustaining it the state appeals, contending that the information was good.

Any person who manufactures intoxicating liquor in this state is guilty of a crime. Article 23, State Constitution; chapter 63, p. 93, Laws 1917. Likewise one who attempts to commit a crime, but fails or is prevented or intercepted in the perpetration thereof, is punishable for such attempt. Section 736, Pen. Code. It follows that one may fall short of actually manufacturing intoxicating liquors and yet take steps or do things in that direction that will bring him within the terms of the statute against the attempt to manufacture intoxicants. We apprehend it would not be essential to allege in a charge of the complete offense the instruments or the processes used to manufacture the intoxicant, but that the allegation of the ultimate fact would be sufficient. If that be true of the complete offense, it would seem that an allegation of the ultimate fact constituting the incomplete crime would be a sufficient statement of the facts constituting the attempt. "Attempt" itself as used in the information imports: (1) The intent to commit the crime; and (2) a direct, ineffectual, act done towards its commission. People v. Petros, 25 Cal.App. 236, 143 P. 246; 16 C. J. 113. This definition of an attempt has been adopted by the California courts, whose statute is the same as ours. Cal. Pen. Code, § 664. The word has a well-understood legal meaning, and that is the meaning that should be assigned it in this pleading.

The establishment of the details of the crime charged is important in the trial, but need not in all cases be set forth in the indictment or information. In illustration of this proposition, in People v. Hoyt, 145 A.D. 695, 130 N.Y.S. 505, it is said:

"Where property rights may be affected, intent to defraud is a necessary element of the crime of forgery, but it is unnecessary to allege the details by which the intent to defraud is to be established. Paige v. People, supra; People v. Stearns, 21 Wend. 409; Noakes v. People, 25 N.Y. 381; West v. State, 22 N.J.L. 212. Nor is it necessary to plead how one aided and abetted in the commission of a crime (People v. Seldner, 62 A.D. 357), or in what manner one attempted to commit a crime (People v. Bush, 4 Hill, 133), or by what means one broke and entered in committing a burglary (People v. Farrell, 28 N.Y.S. 43)."

In the Hoyt case it was held that the word "forge," having a well-defined meaning in law, sufficiently informed the defendant of what he was charged without setting forth the means or manner of the forgery. People v. Bush, supra, is a case where an indictment under the New York statute for an attempt to commit a crime was attacked because it failed to set out "the particular manner in which the attempt was made." The New York statute, while using different language than ours, is of the same purport and meaning. Mr. Justice COWEN, in holding the indictment good, said:

"An attempt in any form to commit an offense is within the statute; and the particular manner in which the attempt was made need not be pointed out by the indictment."

In another case wherein defendant was charged with an attempt to commit arson, the court said:

"It was unnecessary for the district attorney to allege in the indictment the particular manner in which the prisoner attempted to burn his insured goods and chattels, with intent to prejudice the insurer." Mackesey v. People, 6 Park. Cr. R. (N. Y.) 114.

In People v. Murray, 67 Cal. 103, 7 P. 178, an information for an attempt to commit burglary was held good even though it did not set forth the particular manner or means used in such attempt. The court used this language:

"The statute of this state (Pen. Code 459) defines the crime of burglary, and section 664 declares that 'every person who attempts to commit any crime,' etc., is punishable but does not declare what acts shall constitute an attempt. It has been frequently held by this court sufficient to state the offense charged in the language of the statute. Applying these rules to the information before us, it is sufficient."

Respondents cite, as their sole authority, the case of Baca v. State, 18 Ariz. 350, 161 P. 686, and rely upon it as decisive. In that case the county attorney sought to charge the defendant with violating this constitutional provision, "Every person who . . . attempts to introduce into the state of Arizona . . . intoxicating liquor . . . shall be guilty of a misdemeanor . . . " (article 23, section 1), by alleging that the defendant "did . . . attempt to transport, bring, and carry into the county of Apache . . . a large quantity . . . of alcoholic liquors, to wit, whiskey, . . . "

There were three opinions in the Baca case, two holding the information insufficient, and one holding it good. The reasoning adopted by the two members of the court declaring it bad proceeded along different lines, but it would seem that their ultimate conclusion was the same, to wit, that the information did not use the language of the statute, or equivalent language, in describing the offense sought to be charged. One of the justices said:

"The allegation that the defendant did willfully and unlawfully 'attempt to transport, bring and carry' whiskey into the state of Arizona fails to set forth the offense in the language of the law or otherwise, except as a conclusion."

Another said:

"I do not think the allegations 'to transport, bring and carry' import the same meaning as the word 'introduce' contained in the Constitution. Clearly, it would be no violation of our Constitution for a public carrier 'to transport, bring and carry' into Apache county, Arizona, intoxicating liquors in a continuous shipment from the state of New Mexico to the state of California. The word 'introduce' as used in our Constitution means that the liquors are brought into the state for the purpose of commingling them with the other property of the state."

Unlike the Baca case, the information charges the offense in the language of the statute. We are of the opinion that the information states a crime, and that the court committed error in sustaining the demurrer. The judgment is reversed and the cause remanded, with directions that further proceedings be had not inconsistent with this opinion.

BAKER, J., concurs.

DISSENT BY: CUNNINGHAM

CUNNINGHAM, C. J. (Dissenting.)

Section 1, article 23, Amendment State Constitution, page 1, Session Laws of 1915, "Amendments," defines as guilty of an offense the following:

"Every person who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine, or intoxicating liquor of any kind to any person in the state of Arizona, or who manufactures, or introduces into, or attempts to introduce into the state of Arizona any ardent spirits, ale, beer wine, or intoxicating liquor of any kind, shall be guilty of a misdemeanor and upon conviction shall be imprisoned for not less than ten days nor more than two years and fined not less than twenty-five dollars and costs nor more than three hundred dollars and costs for each...