State v. George

Decision Date15 December 1971
Docket NumberNo. 2272,2272
Citation108 Ariz. 5,491 P.2d 838
PartiesSTATE of Arizona, Appellee, v. August GEORGE, Appellant.
CourtArizona Supreme Court

Gary K. Nelson, Atty. Gen., by Albert M. Coury, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Public Defender, by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.

UDALL, Justice:

Defendant, August George, appeals from a judgment entered upon jury verdicts finding him guilty of one count of robbery and one count of assault with a deadly weapon, and from concurrent sentences imposed thereunder of not less than 5 nor more than 7 years.

The facts are that on the 11th of July, 1970, at approximately 11:30 p.m., Peter Krawsofski drove his car into the parking lot of a tavern known as 'Harry's Capri' in Phoenix. He locked his car and proceeded to the tavern's entrance where he was approached by a man (later identified as the defendant) who asked him whether he was married. Upon replying that he was not a married man, the defendant produced a handgun, pointed it at Krawsofski and demanded his money. Krawsofski pulled out his wallet and was in the process of taking his money out when the defendant ordered him to turn around and walk towards the far end of the parking lot. As they walked towards the far end of the parking lot, Krawsofski handed approximately $16.00 (over his shoulder) to the defendant. Upon reaching the far end, defendant asked to see Krawsofski's wallet. Another dollar bill was found therein and was taken. Krawsofski was then ordered to get on the ground between the parked cars and remain there. He was warned not to try 'anything funny' and not to be a hero or he would get hurt. The robber then made good his escape.

Several weeks, later, defendant, having been recognized by Krawsofski who immediately called the police, was arrested. He was tried and convicted. This appeal followed.

Defendant's sole contention on appeal is that he was subjected to double punishment in violation of A.R.S. § 13--1641 because, although he had committed only one act, judgment was entered against him on both jury verdicts of guilty and he was sentenced on both counts. With this contention, we agree.

A.R.S. § 13--1641 provides that an 'act or omission which is made punishable in different ways by different sections of the laws may be punished under either, but in no event under more than one.' In State v. Mitchell, 106 Ariz. 492 at 495, 478 P.2d 517 at 520 (1970), this Court, reaffirming the 'identical elements test' set forth in State v. Westbrook, 79 Ariz. 116, 285 P.2d 161 (1954), which test was to be used in determining whether § 13--1641 had been violated, stated:

'The practical test is to eliminate the elements in one charge and determine whether the facts left would support the other charge.'

Applying this test to the case at bar it is abundantly clear that only one crime was committed. Since defendant was convicted of two crimes based upon one act and sentenced thereunder in violation of A.R.S. § 13--1641, the lesser of the two must be set aside. State v. Mendoza, 107 Ariz. 51, 481 P.2d 844 (1971).

Robbery is defined in A.R.S. § 13--641 as ...

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21 cases
  • State v. Cassius
    • United States
    • Arizona Court of Appeals
    • 8 Noviembre 1973
    ...of whether the facts left support the other charge. See also, State v. Horton, 108 Ariz. 16, 492 P.2d 395 (1972); State v. George, 108 Ariz. 5, 491 P.2d 838 (1971), and State v. Bartky, 16 Ariz.App. 421, 493 P.2d 1226 In spite of the seeming simplicity of this statute and the test, judicial......
  • State v. Taylor
    • United States
    • Arizona Supreme Court
    • 2 Abril 1973
    ...together. State v. Jorgenson, 108 Ariz. 476, 502 P.2d 158 (1972); State v. Belcher, 108 Ariz. 290, 496 P.2d 590 (1972); State v. George, 108 Ariz. 5, 491 P.2d 838 (1971). 'Our court has stated that where a person is convicted and sentenced on two counts based upon one act, that the trial ju......
  • State v. Castro
    • United States
    • Arizona Court of Appeals
    • 9 Septiembre 1976
    ...vacated. State v. Ballez, State v. Mendoza, State v. Benge, supra. State v. Arce, 197 Ariz. 156, 483 P.2d 1395 (1971); State v. George, 108 Ariz. 5, 491 P.2d 838 (1971); State v. Scarborough, 110 Ariz. 1, 514 P.2d 997 (1973); State v. Lippi, 108 Ariz. 342, 498 P.2d 209 (1972); State v. Mitc......
  • State v. Williams
    • United States
    • Arizona Supreme Court
    • 30 Junio 1972
    ...108 Ariz. 290, 496 P.2d 590, filed May 1, 1972; State v. Jernigan, 108 Ariz. 97, 492 P.2d 1204, filed January 26, 1972; and State v. George, 108 Ariz. 5, 491 P.2d 838, filed December 15, 1971. In Belcher, we affirmed both the robbery and assault with a deadly weapon convictions because the ......
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