State v. Krug
| Decision Date | 09 July 1964 |
| Docket Number | No. 1387,1387 |
| Citation | 96 Ariz. 225,393 P.2d 916 |
| Parties | STATE of Arizona, Appellee, v. William C. KRUG, Appellant. |
| Court | Arizona Supreme Court |
Robert W. Pickrell, Atty. Gen., Norman E. Green, Pima County Atty., and Jack I. Redhair, Deputy Pima County Atty., Tucson, for appellee.
Leon Thikoll, Tuscon, for appellant.
The appellant, William C. Krug, was tried by a jury on an information charging a violation of A.R.S. § 13-562, Perjury by contradictory statements. He appeals from judgment of conviction based on a jury verdict.
At the trial of this cause the State showed that on February 6, 1963, the appellant testified at preliminary hearing that the was with one Carson Lancaster, the defendant in that hearing, on the evening of the alleged theft, and that the defendant got out of the car with him and that the defendant Lancaster took the purse of the victim. The State further showed that on April 2, 1963, in the trial of the said Carson Lancaster for the alleged theft, the appellant testified that he did not know whether or not Carson Lancaster was with him on the evening in question, whether or not Lancaster got out of the car with him and whether or not Lancaster took the purse.
The statute A.R.S. § 13-562 reads as follows:
'A person who, in one or more trials, hearings, investigations, depositions, certifications or declarations, in which making or subscribing statements is required or authorized by law, makes or subscribes two or more material statements under oath, affirmation or other legally binding assertion that the statements are true, when in fact two or more of the statements contradict each other, is guilty of perjury.'
Prior to the commencement of the trial, appellant moved to quash the information on the grounds that A.R.S. § 13-562 was unconstitutional and on the further grounds that the alleged statements in the information were not as a matter of law contradictory. The trial court had denied appellant's motion.
In his assignments of error, the appellant argues that the trial court erred in failing to grant his motion to quash on the grounds that A.R.S. § 13-562 is unconstitutional as a denial of appellant's rights under the due process clause of the Fourteenth Amendment to the United States Constitution and Article 2, § 4 of the Arizona Constitution, A.R.S.
Appellant further contends that A.R.S. § 13-568, subd B, providing that it is a defense to the charge in A.R.S. § 13-562 that the accused at the time he made each statement believed that the statement was true, shifts the burden to the defendant and is a denial of defendant's fundamental right to stand mute with the State having the burden of proving him guilty.
We cannot agree with this latter position. Although the defendant has the burden as to the affirmative defense that at the time he made each of the contradictory statements he believed the statement to be true, the ultimate burden of proof remains with the State in that it must prove the elements of the crime beyond a reasonable doubt; to-wit, that the defendant made material statements; that the statements were made willfully; that the statements were contradictory; that the oath was properly administered, and that the statements were made before a proper tribunal. Actually, the situation here is less burdensome for the defendant than where a defendant is charged with murder and has by statute the burden of proving circumstances of mitigation or circumstances that justify or excuse the homicide. A.R.S. § 13-454.
The statute with which we are concerned was adopted from the Model Code on Perjury, § 2, 9B U.L.A. by Arizona in 1953, and is similar to statutes in New York and Louisiana, New York Penal Law, § 1627-a, McKinney's Consol. Laws, c. 40 and L.S.A.R.S. 14:124. We have not been cited to and have been unable to find any reported cases dealing with the question here presented.
In attacking the constitutionality of A.R.S. § 13-562, the appellant further contends that the statute in failing to use the word 'willfully' omits the necessary element of intent to commit the crime. It is well settled in Arizona that there is a presumption in favor of the constitutionality of a legislative enactment. Austin v. Campbell, 91 Ariz. 195, 370 P.2d 769; McManus v. Industrial Commission, 53 Ariz. 22, 85 P.2d 54; Atchison, T. & S. F. Ry. Co. v. State, 3o Ariz. 440, 265 P. 602, 58 A.L.R. 563; and State v. Childs, 32 Ariz. 222, 257 P. 366, 54 A.L.R. 736.
The burden rests upon one assailing the validity of a statute to establish that...
To continue reading
Request your trial
-
State v. Cutshaw
...our Supreme Court has held that '* * * intent or scienter * * *' is required before there can be a violation. State v. Krug, 96 Ariz. 225, 228, 393 P.2d 916 (1964). Under the instructions given this jury, a conviction was mandated even though the affidavit signed by R. on July 20, was in al......
-
State v. Scofield
...which would make it constitutional.' McManus v. Industrial Commission, 53 Ariz. 22, 28, 85 P.2d 54, 56 (1938); and see State v. Krug, 96 Ariz. 225, 393 P.2d 916 (1964); and State v. Locks, 91 Ariz. 394, 372 P.2d 724 In the case of the instant statute, the act selected for possible sanction ......
-
Gault, Application of
...held a statute valid in other situations though we had to imply into the language a necessary element of the problem. In State v. Krug, 96 Ariz. 225, 393 P.2d 916 we held constitutional the 'perjury by contradictory statements' statute, § 13-562, A.R.S. though it failed to expressly use the......
-
Nelson v. Planned Parenthood Center of Tucson, Inc.
...clear that in the State of Arizona there is a presumption in favor of the constitutionality of a legislative enactment. State v. Krug, 96 Ariz. 225, 393 P.2d 916 (1964), and that one assailing the validity of a statute has the burden of establishing that it infringes a constitutional guaran......