State v. Harris, 1019

Decision Date10 December 1951
Docket NumberNo. 1019,1019
Citation238 P.2d 957,73 Ariz. 138
CourtArizona Supreme Court

Fred O. Wilson, Atty. Gen., and Charles Rogers, Asst. Atty. Gen., for appellee.

J. Frank Gibson, of Phoenix, for appellant.

UDALL, Chief Justice.

Willie Harris was convicted of the crime of grand theft and sentenced to serve not less than two nor more than five years in the state prison. After his motion for a new trial was overruled, he prosecuted this appeal from the denial of the motion and from the judgment and sentence rendered against him.

The defendant and Sammy Smith were jointly charged by the information of unlawfully and feloniously taking 35 cartons of cigarettes, three cases of pepper and three cases of coffee, of the total value of $132.16, which was alleged to be the personal property of Walter Ong. Sammy Smith was acquitted by the jury.

Walter Ong was the owner of Central Market No. 2, located at 1602 E. Thomas Road, Phoenix, Arizona and had employed the defendant for three years previously as a janitor and handy man. Ong had been missing merchandise from time to time from the store and had reported it to Fred Nichols, a detective of the Phoenix Police Department. On Sunday morning, November 12, 1950, Nichols concealed himself behind a service station near the store for the purpose of watching the premises. He saw the defendant arrive around 8 a. m. and a few minutes later Sammy Smith drove up in his car.

The defendant went to the market as was his usual practice on Sunday mornings to clean the premises, and it appears that immediately after arriving there he telephoned Sammy Smith asking him to bring his car and make a delivery. Upon Smith's arrival the defendant rolled a pushcart out containing three cases of pepper, and three cases of coffee which he started to put in the car. Sammy Smith remained in the car and gave the defendant no physical assistance. Before the defendant had finished loading the car Detective Nichols appeared and placed them under arrest. He took both the defendant and Sammy Smith inside the store and telephoned Walter Ong, requesting that he come to the store. Upon his arrival Ong informed the officer that he had not given either Willie Harris or Sammy Smith permission to sell or remove merchandise from the store.

The defendant makes nine assignments of error which can be divided into two main categories. The first four have to do with the court's refusal to give certain instructions submitted by the defense, and the last five complain of the court's sustaining objections interposed by the state to certain lines of testimony proffered by defendant.

The theory of the defense is best shown by the following colloquy between the court and defendant's attorney:

'The Court: 'You think the rule is that if a man works for an employer, and he thinks he is not being paid enough, that he has a right to go to the till and pay himself out of that, even though he knows that the employer doesn't intend to pay him, and that would excuse him of any felonious intent of robbing the till?'

'Mr. Haislip: 'I think it would; that is, if he went and took the money out of the cash register especially to pay himself for some work that was done outside of the work in the store, I think it would excuse him of felonious intent.''

The defendant attempts to show that an essential element of theft was absent, i. e., felonious intent, by making the following offer of evidence which was denied: '* * * we purpose to show that this employer of the defendant Willie Harris is engaged in extensive gambling activities here in this community and was so engaged at the time prior to November 12th, 1950; that he had had this defendant Willie Harris working after hours in doing work in fixing gambling equipment for him outside of the store and away from the store, and that the defendant Willie Harris understood that he thought that he was entitled to compensation, and that he never received any compensation, and that he was of the opinion when he took this merchandise that he had a right to take it to an extent that would reasonably compensate him for his services. That is offered for the purpose of showing the absence of felonious intent, * * *'

In support of this proposition defendant directs our attention among others to Hurley v. State, 22 Ariz. 211, 196 P. 159, and Bauer v. State of Arizona, 45 Ariz. 358, 43 P.2d 203, 205. In the latter case the general rule is stated: '* * * a charge of robbery fails where the attempt is to collect a bona fide debt, since, to constitute that offense, there must be an anumus furandi and this cannot exist if the person takes the property under a bona fide claim of right, * * *.' (Emp. sup.) We agree with the rule but are unable, as was the trial court, to see how it is applicable to the facts in the instant case.

Also it is clear that the defendant did not consider that he was justified in taking the property for when Detective Nichols at the time of making the arrest, asked what they were doing, the defendant explained that he was making a delivery for his employer, Ong. Then later when confronted by Ong who informed Nichols that he had not given either defendant or Sammy Smith permission to sell or remove any merchandise, the defendant said, 'Well, I guess you have got me.' The next day after the...

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34 cases
  • State ex rel. Pope v. Superior Court, In and For Mohave County
    • United States
    • Arizona Supreme Court
    • February 2, 1976
    ...may impeach his character by the testimony of other witnesses that he has a poor reputation for truth and veracity. State v. Harris, 73 Ariz. 138, 238 P.2d 957 (1951); Udall, Arizona Law of Evidence § 66 (1960). This state is in the minority, however, in holding that the use of character ev......
  • State v. Finley, 1128
    • United States
    • Arizona Supreme Court
    • April 29, 1959
    ...attacked unless he puts it in issue, nor may prior criminal conduct be shown except by the record of a former conviction. State v. Harris, 73 Ariz. 138, 238 P.2d 957; State v. Polan, 78 Ariz. 253, 278 P.2d 432. Moreover, every experienced lawyer knows that a conviction is a near certainty i......
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    • December 8, 1965 showing specific acts for which he has not received a felony conviction. State v. Johnson, 94 Ariz. 303, 383 P.2d 862; State v. Harris, 73 Ariz. 138, 238 P.2d 957. Under this rule the trial court did not err in admonishing defense counsel for asking the witness if he had ever sold narcot......
  • State v. Orantez
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    • Arizona Supreme Court
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    ...unless probative of truthfulness, except where the witness had been convicted of a crime. Ariz.R.Evid. 608-09; State v. Harris, 73 Ariz. 138, 142, 238 P.2d 957, 959 (1951). Monica's drug use is material to her credibility as the state's key witness. Cf. United States v. Kearney, 420 F.2d 17......
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