State v. Cutshaw

Decision Date08 February 1968
Docket NumberNo. 2,CA-CR,2
Citation7 Ariz.App. 210,437 P.2d 962
Parties, 31 A.L.R.3d 830 The STATE of Arizona, Appellee, v. James A. CUTSHAW, Conrad Forks, Willidane Forks, and Dana Snider, Appellants. 53.
CourtArizona Court of Appeals

Darrell F. Smith, The Atty. Gen., Jordan L. Green, Asst. Atty. Gen., William J. Schafer III, County Atty., Pima County, for appellee.

Robert J. Hirsh, Tucson, for appellants.

MOLLOY, Judge.

This is an appeal by four defendants convicted of contributing to the delinquency or dependency of a minor. Numerous assertions of error are made but we believe the question of whether the defendants were properly charged with any criminal offense is dispositive.

The direct information filed charged the four defendants with '* * * the crime of CONTRIBUTING TO DELINQUENCY OR DEPENDENCY OF A MINOR as follows:

'That on or about the 20 day of July 1965, and in Pima County, Arizona, and before the filing of this Information, the said * * * (defendants) did cause, encourage or contribute to the dependency or delinquency as defined by A.R.S. § 13--821, of _ _ (name of complaining witness) a child under the age of eighteen, all in violation of A.R.S. § 13--822.'

To this information, the defendants filed a motion to dismiss and a motion for bill of particulars. The motion to dismiss was denied and the motion for bill of particulars was granted. In response to this order, a bill of particulars was filed stating:

'1. R. (this letter is used in this opinion in substitution of the name of the complaining witness), under the age of 18, ran away from her home on or about the 10th of July, 1965.

'2. That on or about the 20th day of July, 1965, defendants took R. to Caruso's Restaurant in Tucson and then took her to the Tucson Airport where they left her.'

Thereafter, the defendants filed a motion to quash on the grounds the information, when supplemented by the bill of particulars, did not state an offense.

In response to this motion, the State filed an 8-page pleading which it denominated: 'OPPOSITION TO MOTION TO QUASH INFORMATION AND BILL OF PARTICULARS AND SUPPLEMENTAL BILL OF PARTICULARS.' Included within this document are argument of counsel, citations to legal authorities, and 'the story in this case' which, according to the self-confession of this document, was 'lengthy.' The 'story' began with the statement that:

'R. is an attractive young girl, seventeen in July of 1965. In May of 1965, at a hearing before the Medical Board in Phoenix, Miss R. testified, in the presence of James Cutshaw that during her fifteenth and sixteenth years, Mr. Cutshaw had sexual intercourse with her on three occasions.'

The 'story' continued through various incidents taking place after May of 1965, which included R. being placed in a psychiatric hospital on June 10, 1965, her release therefrom to her home on June 25, 1965, her leaving home without the permission of her parents on July 10, 1965, her not being 'heard from' again until July 20, 1965, her oral recantation on July 20, 1965, of her testimony before the Medical Board in a telephone conversation to the county attorney's office, her appearance at a restaurant with the defendants on the evening of July 20, 1965, her notarization of an affidavit at the Tucson International Airport at 10:45 p.m., on July 20, 1965, '* * * concerning false testimony at a hearing,' and the leaving of R., by the defendants, '* * * alone and unaided at the airport' at that time.

The 'story' continued with a few further facts interspersed with considerable argument for an additional four pages. The additional facts include a statement that three days after R. ran away from home, she made a written statement branding her testimony before the Medical Board as '* * * a lie,' that the defendant Snider was with R. when she wrote out various statements recanting her testimony before the Medical Board, that the defendant Cutshaw had seen R. twice at his home in the company of the other defendants after R. had left home, that R.'s absence from home had been reported to law-enforcement officers and that the defendants knew a search was being conducted for R. but they refused to give information of her whereabouts to the proper authorities.

The supplemental bill concludes with the assertion that a charge had been stated '* * * under any one or a number of subsections of A.R.S. 13--821 such as A (par. 1) (c), (d), (e), (f), (l), (m), (q), B, C.' 1 Argument contained within this supplemental bill would indicate the State contended that the leaving of R. at the Tucson International Airport was a violation of a 'loitering' ordinance of the City of Tucson and that '* * * allowing and assisting a child to remain away from home * * *' also constituted the crime of contributing to the delinquency of a minor. There is no indication of how the defendants assisted R. in remaining away from home. There is no allegation that the defendants encouraged R. to make recanting statements or affidavits. There is no assertion that the signing of the affidavit on July 20, 1965, was an act of delinquency, nor any allegation which would negate a belief on the part of the defendants that R. was being truthful when she recanted her testimony before the Medical Board. 2

After the filing of this 'supplemental bill of particulars,' the motion to dismiss came before the court for hearing. In his argument at this hearing, the county attorney stated that what he said at that time was intended to constitute a part of the bill of particulars and this position appears to have been accepted by the trial court. In this argument the assertion is made that the affidavit signed by R. on July 20 '* * * is contrary to her testimony in Phoenix.' The argument makes no statement, however, that the retraction signed on July 20, rather than the testimony in Phoenix, is false nor is there any reference to the criminal statute, relied upon by the State at time of trial, making it a felony to give contradictory statements under oath. (A.R.S. § 13--562.) Moreover, the argument contains no assertion that the defendants encouraged R. to make this affidavit--only that R. was '* * * in the company of all the defendants * * *' when she notarized the document.

Throughout these proceedings, the State has disclaimed any intention of prosecuting the defendants for any sexual relationships that may have occurred between the defendant Cutshaw and R., 3 and there is no direct evidence of any such sexual acts in this record. Numerous assertions of error skirt, 4 but do not directly raise, the question of whether the information, as supplemented by the bills of particulars, states an offense. The matter of the sufficiency of the information was raised repeatedly by the defendants in the lower court. After the denial of their motion to dismiss, because of the inadequacy of the bill of particulars and the supplemental bill, the defendants raised the same question at the trial. When the trial commenced, defense counsel indicated he had '* * * no way of knowing what the issues are.' At the conclusion of the State's evidence, the same essential position was stated in a motion for a verdict of acquittal. We agree with this contention, and dispose of this appeal on this basis, deeming it immaterial whether this fundamental defect is raised by the appellants' brief, or by this court, sua sponte. State v. Terwilliger, 49 N.J. Super. 149, 139 A.2d 454 (1958); State v. Martin, 54 Or. 403, 100 P. 1106, 103 P. 512 (1909); cf. Jacob v. Cherry, 65 Ariz. 307, 309, 180 P.2d 217 (1947); State v. Taylor, 323 S.W.2d 534 (Mo.App.1959).

The subject statutes have been upheld in the face of an attack that they were unconstitutionally vague. Brockmueller v. State, 86 Ariz. 82, 340 P.2d 992 (1959); Loveland v. State, 53 Ariz. 131, 86 P.2d 942 (1939). However, these statutes, which characterize as criminal, Inter alia: '* * * any act which tends to debase or injure the morals, health or welfare of a child' (A.R.S. § 13--821, subsec. C) are clearly at the periphery of the constitutional spectrum insofar as permissible vagueness is concerned. 5

Also pertinent to the problem here is the evidentiary rule generally honored in contributing cases that acts tending to contribute to the delinquency of a minor, other than those charged in the information, can be shown in evidence in order to establish the general surroundings under which the acts described in the information took place. People v. Lowell, 77 Cal.App.2d 341, 175 P.2d 846, 848, 77 A.L.R.2d 907 (1946); People v. Oliver, 29 Cal.App. 576, 156 P. 1005 (1916); State v. Seaburg, 154 Me. 162, 145 A.2d 550 (1958); State v. Williams, 236 Or. 18, 386 P.2d 461 (1963); Birdsell v. State, 205 Tenn. 631, 330 S.W.2d 1 (1959); Annot., 77 A.L.R.2d 841, at 907; cf. State v. Pierce, 59 Ariz. 411, 129 P.2d 916 (1942).

In view of this leniency shown by the courts to the introduction of evidence in a contributing case, and the broad encompassment of the statute under which these charges are brought, the right to an adequate bill of particulars takes on even greater significance than in the ordinary criminal prosecution.

The right to be informed of the 'nature and cause of the accusation against him' is one of the particular rights guaranteed to all those accused of crime in this state. Ariz.Const. art. 2, § 24, A.R.S. Applicable court rule provides that the court '* * * shall, at the request of the defendant, order the county attorney to furnish a bill of particulars * * *' whenever the information fails to inform the defendant '* * * of the particulars of the offense sufficiently to enable him to prepare his defense * * *.' Rule 116, R.Crim.P., 17 A.R.S. The right to be informed in writing of the nature of criminal charges is such a fundamental right that it is included within the Fourteenth Amendment guarantees applicable to criminal trials in state courts. Application of...

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