State v. Griffith

• Decision Date: 16 February 1971
• Docket Number: No. 10414,10414
• Citation: 94 Idaho 76,481 P.2d 34
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Mary Ann GRIFFITH and April Jo La Vala, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 34

481 P.2d 34

94 Idaho 76

The STATE of Idaho, Plaintiff-Respondent, v. Mary Ann GRIFFITH and April Jo La Vala, Defendants-Appellants.

No. 10414.

Supreme Court of Idaho.

Feb. 16, 1971.

Kent B. Power, Boise, for appellant April Jo La Vala.

Howard I. Manweiler, Boise, for appellant Mary Ann Griffith.

Robert M. Robson, Atty. Gen., Stewart A. Morris, Asst. Atty. Gen., James A. Risch, Deputy Pros. Atty., Boise, for appellee.

SPEAR, Justice.

Mary Ann Griffith and April Jo La Vala, appellants herein, were tried for the offense of armed robbery resulting in a jury verdict of guilty. They were subsequently sentenced to five years in the Idaho Penitentiary, and this appeal followed.

During the evening hours of September 7, 1968, Ronald L. Wakefield, an Airman at the Mountain Home Air Force Base, met the appellants in downtown Boise. After some conversation, Wakefield and the appellants proceeded to a local bar where Wakefield bought the appellants several drinks. During the ensuing conversation that accompanied the drinks, there is evidence indicating Wakefield either propositioned, or was propositioned by, the appellants; a fee of $25 apiece being the consideration for his sexual gratification. At any rate, the offer apparently was accepted. Wakefield subsequently became sick and left the bar, with the aid of appellants, and the three of them proceeded to the nearby Del Rio Hotel. The hotel owner testified that appellant Griffith asked for a room for three, but the request was denied. Appellants, to the contrary, maintained they were not trying to get a room for three, but were merely two Samaritans, trying to get a room for the ill Wakefield to keep him from getting arrested for being publicly intoxicated.

Wakefield testified that after being refused a room at the Del Rio, appellant Griffith offered to try another hotel but he suggested that they go to a room which he had rented earlier that evening at another hotel. The appellants refused to go and thereupon appellant Griffith pulled a pistol from her purse and demanded that Wakefield 'pay them for their time' by giving them all of his money. Wakefield grabbed the gun and the three of them fell to the ground. When Wakefield looked up again, Mrs. LaVala was standing holding a different gun on him. Mrs. Griffith then pulled his coat up over his head, and he felt a hand remove his wallet and another remove his money from his shirt pocket; a total of about $25 was taken. After removing his coat from his head, he saw Mrs. LaVala standing nearby going through his wallet and she then threw it back to him at his request.

Appellant testified that after being refused a room at the Del Rio, appellant Griffith offered to try another hotel but Wakefield suggested that they go to his room which he had already rented. Appellants decided not to go to his room and began to leave. Wakefield, who was being supported as he walked by the two women, then pushed appellant LaVala to the ground and fell on top of her. Appellant Griffith then jumped into the melee and onto Wakefield and pulled his coat over his head in her attempts to restrain him. Wakefield then yelled, 'Take my money, take my money, but leave my wallet,' and threw his wallet at them. Appellants picked up their purses and brushed themselves off, and appellant LaVala put the papers which had fallen out of Wakefield's wallet back into the wallet and threw it back to him. Neither of the appellants admitted to any overt use of a weapon, although both admitted that among the contents of their purses scattered on the sidewalk during the struggle were two small caliber pistols. Appellant LaVala explained that she never carried a gun, but had put the gun into her purse that day to take it to a repairman who failed to come to work that day. She testified her pistol was unloaded and would not operate double action, but would fire single action. Appellant Griffith asserted that she had loaned her fully loaded gun to a friend, and that very day he had returned it to her in the same condition, fully loaded.

The three do agree that during the struggle, a man in a truck, one Joe Chipanno, stopped and inquired as to the problem. Appellant Griffith told him that there was no problem and to mind his own business or he would get hurt. The man then drove around the block and came back, at which time the appellants had left. He asked Wakefield the problem and the latter replied he had been 'rolled.' The man subsequently notified the police that a robbery had taken place and pointed out the appellants, who were in a nearby bar, as the robbers. Wakefield also phoned in a report of the incident to the police.

Appellants first contend that the lower court erred in refusing to grant their motion to dismiss the information, alleging the information was ambiguous, uncertain and unintelligible to the extent that the statutory violation could not be ascertained, and thus was nonconforming to the requirements of I.C. §§ 19-1409(2), 19-1411(3), and 19-1413.

The information charged:

'That the said defendants, MARY ANN GRIFFITH and APRIL JOE (JO) LAVALA, on or about the 7th day of September, 1968, in the County of Ada, State of Idaho then and there being, did then and there wilfully, unlawfully, intentionally, feloniously and forcibly take from the person of, or immediate presence of one Ronald L. Wakefield, certain property, to-wit: Twenty-five Dollars ($25,000), lawful money of the United States, and the personal property of the said Ronald L. Wakefield, which taking was then and there without the consent, and against the will of the said Ronald L. Wakefield, and was then and there accomplished by means of force and fear, in that defendants, MARY ANN GRIFFITH and APRIL JOE (JO) LAVALA then and there pointed a certain deadly weapon, to-wit: a pistol at the said Ronald L. Wakefield.'

Appellants object in particular to the charge of having taken property 'from the person of, or immediate presence of' Wakefield, and claim that such language is misleading in that it 'appears to give the appellants notice of two possibilities of crimes, but does not notify them which, if either, could be proved.' They further assert that the rules of pleading a criminal charge in the State of Idaho require a plain statement of a single offense, citing I.C. §§ 19-1409 and 19-1413.

This court reviewed the requirements of a criminal information in the case of State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967). No change in the statutory or case law upon which that case was based has since occurred and the court's statement therein remains the valid criteria of the sufficiency of an information. The court stated:

'Our statute, and several recent cases, require that a criminal information properly inform an accused of the exact nature of the charge against him, so that (1) the accused has the means to prepare a proper defense, and (2) he can protect himself against the subsequent prosecution based on the commission of the same acts. See State v. Grady, 89 Idaho 204, 404 P.2d 347, and cases cited therein. The pertinent statutory provisions are found in I.C. §§ 19-1409 to 19-1411, 19-1418 to 19-1420 inclusive, made applicable to criminal informations by virtue of I.C. 19-1303. State v. McMahan, 57 Idaho 240, 65 P.2d 156.

'Therefrom it appears that the criminal information must contain '(a) statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended' and must be direct and certain as it regards '(t)he particular circumstances of the offense charged, when they are necessary to constitute a complete offense.' I.C. §§ 19-1409, 19-1411.' 91 Idaho at 814-815, 430 P.2d at 892-893.

In the information, the appellants were charged with the crime of robbery. That crime is defined in I.C. § 18-6501 as follows:

'Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.'

Regardless of whether the money was taken from the person, or from the immediate presence of the person, that taking against his will and by means of force or fear constituted robbery, the single crime charged. Where the statute enumerates a series of acts, either of which separately or all together may constitute the offense, all of such acts may be set forth and charged in a single count since even though each act may be itself constitute the offense, all of them would do no more. State v. Salhus, 68 Idaho 75, 189 P.2d 372 (1948); State v. Scott, 72 Idaho 202, 239 P.2d 258 (1951). The information, as worded, therefore, properly informed the appellants of the nature of the charge against them, set forth every element necessary to constitute the offense with which the appellants were charged, stated the particular circumstances of the offense charged, and afforded them the means by which to prepare a proper defense.

The appellants' contention that the information was defective on the ground that it did not charge a single offense as required by I.C. § 19-1413 is also without merit. The statute cited requiring an information to charge but one offense was repealed by the legislature in 1963, and has never been reenacted. Idaho Session Laws 1963, Ch. 159, § 1, p. 463. Furthermore, although the information could thus have charged more than one offense, it did in fact only charge the appellants with the single offense of robbery.

In their second specification of error, the appellants cite the court's action in allowing the deputy prosecuting attorney to endorse an additional witness on the information after the filing of that instrument, and just prior to trial. The record reveals that prior to the endorsement of the name of the additional witness, Officer Florenzen, the court, in the presence of the counsel for appellants, requested from the deputy prosecuting attorney...