State v. Freeman
| Decision Date | 26 January 1955 |
| Docket Number | No. 1061,1061 |
| Citation | 279 P.2d 440,78 Ariz. 281 |
| Parties | STATE of Arizona, Appellant, v. Robert Louis FREEMAN, Appellee. |
| Court | Arizona Supreme Court |
Ross F. Jones, Atty. Gen., Earl E. Weeks, Asst. Atty. Gen., for appellant.
Choisser & Choisser, Phoenix, for appellee.
This is an appeal by the State of Arizona from an order of the Maricopa County Superior Court quashing the information and ordering and directing the county attorney to take appropriate action before a justice of the peace within 15 days of the date thereof to reinstate proceedings against defendant. The trial court found, and we believe correctly so, that the prosecution was brought under the provisions of section 43-5501, A.C.A.1939. The information alleges that:
'The said Robert Louis Freeman on or about the 16th day of December, 1953, and before the filing of this information at and in the county of Maricopa, State of Arizona, did then and there wilfully, unlawfully, and by false and fraudulent representations, induce Thomas Garrity to pay $567.00 in lawful money of the United States of America in the form of a check, by stating that the said defendant had No. 2 grade lumber and that said lumber would meet all the requirements and specifications of the FHA when, in fact, said representations were false and fraudulent in that said lumber was not a No. 2 grade and did not meet any specifications of the FHA, whereby the said Thomas Garrity relying upon said representations paid to the defendant the sum of $567.00 when in fact said lumber was worth only $100.00; all of which is contrary to the form, force and effect of the Statute in such cases made and provided, and against the peace and dignity of the State of Arizona.'
Section 43-5501, supra, insofar as here material provides that:
'Any person who:
Defendant's motion to quash the information was based upon five separate grounds, to wit,
1. That the information does not charge the defendant with the commission of an offense;
2. That the information herein attempts to charge the defendant with the commission of an offense by more than one statement of the same offense in one count instead of separate counts, in violation of section 44-725a, A.C.A.1952 Cum.Supp.;
3. That the information attempts to charge the defendant with representations as to future facts or promises which do not constitute false pretenses;
4. The information does not charge that the injured party believed the pretenses to be true which does not charge the offense of theft by false pretenses;
5. That the information does not charge that the proposed acts were done knowingly and designingly and thereby leaves out the ingredient of knowledge and design and therefore does not charge the offense of theft by false pretenses.
Ground No. 2 of the motion does not form the basis for quashing an information under the provisions of section 44-1005, A.C.A.1939, and will therefore not be considered. We believe, however, that the other four grounds may be considered under the grounds stated in No. 1 of the motion to the effect that the information does not charge the defendant with the commission of an offense.
The court in granting the motion to quash the information held that it was necessary to incorporate therein that defendant 'knowingly and designingly' made the false and fraudulent representations to the complainant for the purpose of defrauding him. The court in said order further directed the county attorney to take appropriate action before a justice of the peace within 15 days from date thereof to reinstate the proceedings.
We are of the view that the court was correct in ruling that the information did not state a public offense. Had the county attorney after incorporating in the information that defendant made false and fraudulent representations, set out therein the allegation that they were made with intent to deceive and defraud the complainant and that relying thereupon he paid to defendant the sum therein alleged, the information would then have stated the public offense defined in subsection 4 of section 43-5501, supra.
Such an allegation would have obviated the necessity of alleging that it was done 'knowingly and designingly'. Judge McAlister in Clark v. State, 53 Ariz. 416, 89 P.2d 1077, expressly so held in construing this identical statute. However, it is always proper to use the language in the statute denouncing the offense as we have repeatedly held.
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State v. Holden, 1143
...against defendant without first procuring an order from the court to do so. See, State v. King, 66 Ariz. 42, 182 P.2d 915; State v. Freeman, 79 Ariz. 281, 279 P.2d 440; State v. Freeman, 78 Ariz. 291, 279 P.2d 446; State v. Coursey, 71 Ariz. 227, 225 P.2d Defendant's second assignment is th......
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State v. Southern New Hampshire Builders Ass'n
...each instance, reveals that the cases were decided on the basis that statutes such as those governing amendment, State v. Freeman, 78 Ariz. 281, 285, 279 P.2d 440, 443 (1955), or the filing of a new information or appeal, Campbell v. Thurman, 96 Ariz. 212, 213-14, 393 P.2d 906, 908 (1964); ......
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State v. Fendler
...dismissal existed under the former rules of criminal procedure governing motions to quash. In our opinion, the case of State v. Freeman, 78 Ariz. 281, 279 P.2d 440 (1955), is dispositive of the issue. In Freeman, the state appealed an order of the Superior Court quashing an information. Def......
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Campbell v. Thurman
...for in Rules of Criminal Procedure 175 1 and 176, 2 17 A.R.S. is the only action that may be taken by the State. See State v. Freeman, 78 Ariz. 281, 279 P.2d 440; State v. Holden, 88 Ariz. 43, 352, P.2d 705. The State contends that A.R.S. § 12-122 authorizing the Superior Courts to 'proceed......