State v. Kuhnley

• Court: Arizona Supreme Court
• Writing for the Court: UDALL
• Citation: State v. Kuhnley, 74 Ariz. 10, 242 P.2d 843 (Ariz. 1952)
• Decision Date: 07 April 1952
• Docket Number: No. 1020,1020
• Parties: STATE v. KUHNLEY.

Page 843

242 P.2d 843

74 Ariz. 10

STATE v. KUHNLEY.

No. 1020.

Supreme Court of Arizona.

April 7, 1952.

Clarence V. Perrin, Harry L. Buchanan, and Robert D. Stauffer, of Tucson, for appellant.

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

UDALL, Chief Justice.

Defendant, W. F. Kuhnley, was convicted of a felony, to wit: the crime of receiving stolen goods, knowing them to have been stolen--a violation of section 43-5506, A.C.A.1939. He has appealed from the judgment of conviction and the denial of his motions in arrest of judgment and for a new trial.

Briefly the facts stated in the light most favorable to the State present an almost unbelievable and fantastic situation. The 60 year old defendant is a licensed osteopathic physician, having practiced his profession for the past 28 years in Pima County, and for the past 3 years has resided and maintained his office at 817 East Sixth Street in Tucson. He had no previous criminal record and until his arrest bore a good reputation in the community. One Ernest Louis Jeremy, star witness for the state and an admitted drug addict with a long criminal record, was arrested by William F. Ross of the Tucson Police force on May 3, 1951, while carrying a stolen portable Singer sewing machine under his coat and his disclosures put the officers on the trial of the defendant. They procured a search warrant and upon a thorough search of defendant's premises a great many articles were found that Jeremy testified he had stolen from various business places in Tucson. The latter stated that the goods were delivered to the defendant and accepted by him with full knowledge that they were stolen. His version was that the articles, some of which were specifically ordered by the defendant, were bartered to the doctor for 'part money and part morphine and part of a bill I owed him for morphine'. From the record it appears that this illicit traffic was carried on between them for a period of nearly a year with a continual increase in the amount of narcotics furnished by the defendant to satisfy Jeremy's cravings.

We are presented with a voluminous record. The reporter's transcript consists of nearly 600 pages in addition to numerous exhibits, all of which we have carefully reviewed in considering the numerous assignments of error upon which the defendant relies for a reversal of his conviction. The assignments primarily deal with the trial court's rulings upon evidentiary matters, the instructions given to the jury and the sufficiency of the information. These alleged procedural errors will be more particularly stated as we treat the contentions of the defendant.

Sufficiency of Information

The charging part of the information reads:

'Robert Morrison, the County Attorney of and for Pima County, State of Arizona, accuses W. F. Kuhnley of the crime of Receiving Stolen Property as follows: that on or about the 7th day of May 1951, and in Pima County, Arizona, and before the filing of this information, the said W. F. Kuhnley did then and there wilfully, knowingly, and unlawfully for his own gain, buy or receive personal property, to-wit: 2 Sewing Machines, 1 Saw, 1 Radio, 2 Typewriters, all totaling the value of more than $50.00, lawful money of the United States, knowing the same personal property to have been stolen.

'Gordon G. Aldrich

'Deputy County Attorney of Pima County.'

A mere cursory reading of this discloses numerous defects and it is readily apparent how inartfully it was drawn, yet the defendant prior to the trial neither moved to quash the information under sections 44-1005 and 1006, A.C.A.1939 (Rules of Cr. Proc. 208 and 209), nor demanded a bill of particulars under section 44-712, A.C.A.1939 (Rule 153). By his failure to timely move to quash, the defendant waived all objections which are grounds for such a motion except those which are also grounds for a motion in arrest of judgment. Section 44-1016, A.C.A.1939 (Rule 218); State v. Coursey, 71 Ariz. 227, 225 P.2d 713. As applied to the record in this case the defendant is therefore limited to asserting that the information is fatally defective in that it does not charge the commission of an offense.

Several specific imperfections are relied upon but we are of the opinion that the following are not fatally defective:

(1) Failure to set forth the ownership of the property alleged to have been stolen and knowingly received by the defendant or in lieu thereof to allege that the ownership was unknown. Prior to 1940 with the adoption by this court of the model code of criminal procedure such a failure would have been fatal and the authorities to that effect are legion. However as we pointed out in State v. Coursey, supra, these earlier decisions are of little value as precedents in procedural matters because of being based upon statutes no longer in force and effect. Section 44-719, A.C.A.1939 (Rule 160) expressly provides that an information need not allege ownership unless it is necessary in charging the offense under rule 152 (section 44-711, A.C.A.1939). Such a necessity does not here appear, hence by the express terms of the rules this omission is not fatal.

(2) The information designates the crime as 'Receiving Stolen Property' and the defendant contends there is no such crime either under the common law or by statute, citing People v. Tilley, 135 Cal. 61, 67 P. 42, 15 Ann.Cas. 899. Unquestionably the gist of the offense is receiving the stolen goods with a guilty knowledge, coupled with the intent of depriving the owner of possession or obtaining it for one's own gain. Section 43-5506 supra. We are however of the opinion that using this abbreviated terminology was not misleading or fatally defective.

(3) The objection with the least merit is that the information is defective because the deputy county attorney signed the information without prefixing his name with that of the county attorney. It will be noticed that in the body of the information the accusation is made in the name of Robert Morrison, county attorney. In overruling these three objections we do not want to be understood as placing the stamp of approval on an information with these omissions.

There is, however, another defect that is much more serious, viz.: that the information is defective because it does not sufficiently describe or identify the six articles the defendant is charged with receiving. The general rule is stated in 45 Am.Jur., Receiving Stolen Property, section 15, p. 398:

'The rules for determining the sufficiency of the description in charging larceny apply substantially in a prosecution for the single offense of receiving stolen property. In general, the property must be described with certainty and accuracy and with sufficient particularity to enable the court to determine that such property is the subject of larceny, to advise the accused with reasonable certainty of the property meant and enable him to make the needful preparations to meet such charge at the trial, to enable the jury to determine whether the stolen property proved to have been received was the same as that upon which the indictment was founded, and to enable the defendant to plead the verdict in bar of a subsequent prosecution for unlawfully receiving the same articles or goods. * * *'

In Korab v. State, 93 Neb. 66, 139 N.W. 717, L.R.A.1915B, 83, the court held that the information did not charge the offense of receiving stolen property where the property was described only as the personal property of John Lightfoot of the value of $48. The Court of Appeals of Maryland in Imbraguglia v. State, 184 Md. 174, 40 A.2d 329, held that an indictment was defective which charged the receipt of stolen goods consisting of one tractor trailer, one automobile, and 253,000 packages of cigarettes. It was held imperative in this situation to incorporate further description such as the trade names of the articles and that the description given would not enable the defendant to plead the verdict in bar of a second trial for the same offense.

In the instant case the property was capable of a complete, exact and definite description. This is not an instance where the goods are homogenous. The courty attorney with a minimum of effort could have ascertained these identification marks and described the property so that there would be no doubt as to which property the defendant was charged with receiving, as the evidence shows that all the articles have serial numbers and bear well known trade names. We hold that the description was not sufficient to permit the defendant to plead former jeopardy as he could have been subsequently tried for receiving these same goods. For this reason we hold the information was fatally defective.

Variance between the Information and the Proof

It will be noted that the information in a single count charged the defendant with having knowingly received six items of stolen personal property. The natural inference is that this constituted but one offense arising out of the same transaction. While the thief Jeremy was somewhat hazy in his testimony as to dates, it indubitably appears from the state's proof that the articles in question were not delivered to the defendant at the same time but in truth and fact the thefts occurred separately and at various times between the months of September, 1950 and May, 1951 and that invariably the stolen article was immediately thereafter delivered to the defendant at his home. There is no evidence that even any two of the articles were received by the defendant at the same time. An information which charges two or more distinct and separate offenses in one count is bad for duplicity. In other words as said in Hamilton v. State, 129 Fla. 219, 176 So. 89, 92, 112 A.L.R. 1013, 1017:

'Receiving or concealing different articles of stolen property at different times and on separate and...