State v. Mallory

Decision Date21 December 1972
Docket NumberCA-CR,No. 1,1
Citation504 P.2d 556,19 Ariz.App. 15
PartiesSTATE of Arizona, Appellee, v. Roger Gale MALLORY, Appellant. 415.
CourtArizona Court of Appeals

Gary K. Nelson, Atty. Gen., by William P. Dixon and Thomas A. Jacobs, Asst. Attys. Gen., for appellee.

Ross P. Lee, Public Defender, Maricopa County, by Anne Kappes, Deputy Public Defender, for appellant.

STEVENS, Presiding Judge.

In this appeal, after a plea of guilty to an amended information, the defendant-appellant raises a single question as follows:

'Is the information sufficient to support a guilty plea to grand theft when it does not show any description of the property alleged to be taken or state its value?'

FACTUAL BACKGROUND

The background for the charges in question are thoroughly set forth in the reporter's transcript of the preliminary hearing. It is thereby established that on, and for some time prior to 22 June 1971, Joseph Ruscione was a coin dealer engaged in business at a stated address in Phoenix. Part of his inventory consisted of a 1908 $20 gold piece and a 1924 $20 gold piece, both in extra fine condition, which Ruscione valued at $60 each, wholesale, and at $70 each, retail. His inventory also included a 1902S-half dollar which he valued at $125.

About closing time on the above-mentioned date the defendant, and another person who testified for the State at the preliminary hearing, entered the Ruscione place of business. The defendant was armed with a sawed-off shotgun. Mr. and Mrs. Ruscione were in the place of business and while the defendant covered Mr. and Mrs. Ruscione with the shotgun his companion took the three coins above-mentioned. One of the gold coins was sold for $50 by the defendant to another coin dealer, who resold it shortly thereafter. None of the coins were recovered. At the conclusion of the preliminary hearing the defendant was bound over to the Superior Court where an 'information for armed robbery' was filed. The information charged, in part, that on the day in question the defendant:

'* * * while armed with a gun or deadly weapon, robbed Joseph Ruscione, all in violation of A.R.S. § 13--641 and 13--643, as amended in 1967; * * *.'

There was no allegation of a prior conviction. Under A.R.S. § 13--643, as amended in 1967, the punishment prescribed for the first offense of armed robbery is not less than five years and not more than life. For subsequent offenses the minimum is increased without eligibility for commutation of sentence.

After the initial plea of not guilty and on the day scheduled for trial, as a result of a plea bargain, an amended information was filed charging the defendant as follows:

'The said ROGER GALE MALLORY, on or about the 22nd day of January, 1971, and before the filing of this information at and in the County of Maricopa, State of Arizona, did then and there take personal property from the person of Joseph Ruscione, all in violation of A.R.S. Section 13--661 and 13--663, contrary to the form, force and effect of the statute in such cases made and provided and against the peace and dignity of the State of Arizona.'

Where the charge of grand theft is silent as to the use of a gun or deadly weapon, as here, A.R.S. § 13--671, as amended in 1967, specifies that the permissible range of sentencing is 'not less than one nor more than ten years.' The defendant was arraigned on the amended information and after all of the proper safeguards were observed by the trial court the defendant entered a plea of guilty to the amended information. Thereafter he was adjudged guilty and sentenced to a term of not less than four and not more than five years to commence as of the date of his arrest. The transcript of the proceedings discloses that the trial court was aware of the fact that the defendant was, at the time of sentence, on probation in another county, although the record does not disclose the nature of the offense.

Neither at the time of the arraignment on the amended information, nor at the time of entry of the judgment of guilt and sentence, was the question of the sufficiency of the amended information presented to the trial court and the trial court was not given the opportunity to rule on this legal point.

THE APPEAL

The defendant filed an In propria persona appeal to the Arizona Supreme Court. In view of the adjudication under the amended information the Court of Appeals has jurisdiction and pursuant to State v. Howell, 107 Ariz. 300, 486 P.2d 782 (1971), the Arizona Supreme Court entered its order transferring the appeal to the Court of Appeals.

CONTENT OF INFORMATIONS

The criminal rules have removed Arizona from those states which require highly technical pleading in informations. The rights of an accused with reference to an indictment or information filed against him arise from Article 2, §§ 10, 24 and 30 of the Constitution of Arizona, A.R.S., and the Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States.

Fundamental to the rights of the accused is the right to notice of the 'nature and cause of the accusation' against him. The question thus evolved is: With what specificity must the purported crime be alleged? The substantive test has been set out in State v. Suarez, 106 Ariz. 62 at 64, 470 P.2d 675 at 677 (1970).

'This Court has previously held that an information is legally sufficient if it fairly indicates the crime charged; states the essential elements of the alleged crime; and is sufficiently definite to apprise the defendant so that he can prepare his defense to the charge. State v. Maxwell, 103 Ariz. 478, 445 P.2d 837 (1968). The test of the sufficiency of an information is whether in a subsequent prosecution for the unlawful act described in the information the defendant could plead the information as a bar. State v. Kuhnley, 74 Ariz. 10, 15, 242 P.2d 843 (1952). Furthermore, an information is sufficient if the offense is set forth in such a manner that a person of common understanding would know what was intended. State v. Terrell, 103 Ariz. 453, 445 P.2d 429 (1968).'

Rule 115 of the Arizona Rules of Criminal Procedure, 17 A.R.S., sets forth the manner in which a crime may be alleged in an information. The Supreme Court of Arizona in State v. Miller, 100 Ariz. 288, 297, 413 P.2d 757, 763 (1966), upheld the statutory authorized abbreviated method of stating a charge:

'* * * an indictment or information in the language of the statute is sufficient'

in answering a contention that such an abbreviated information could not be cured by a bill of particulars. The Court cited a line of authority supporting that proposition. State v. Burgess, 82 Ariz. 200, 310 P.2d 822 (1957); State v. Gordon, 79 Ariz. 184, 285 P.2d 758 (1955); State v. Poole, 59 Ariz. 44, 122 P.2d 415 (1942); Adkins v. State, 42 Ariz. 534, 28 P.2d 612 (1934). Section (B) of Rule 115 permits the incorporation of the language of a statute by reference. See also Poole, 59 Ariz. at 46, 122 P.2d at 416.

'This reference in the information to the statute for a description of the offense charged is permissible under the statute. Subdivision (2), section 44--711. If therefore, the statute states an offense, the information, being in the language of the statute, is good.'

§ 44--711 of the 1939 Code is the forerunner of Rule 115.

In our opinion the amended information in this case fully complies with the criminal rules, unless Arizona case law requires a different conclusion in those particular cases wherein the theft of personal property is involved.

BILL OF PARTICULARS

Criminal Rule 116(A) provides for a bill of particulars and the Rule in part is as follows:

'A. When an indictment or information charges an offense in accordance with the provisions of Rule 115, but fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense * * *.'

The information in Poole was supplemented by a bill of particulars. In State v. Benham, 58 Ariz. 129 at 133, 118 P.2d 91 at 93 (1941), the Arizona Supreme Court held:

'In view of the simplified forms of indictment and information under the new criminal procedure, bills of particulars assume an important place in criminal trials. What was formerly essential to allege in the indictment or information may now be supplied to a defendant in a bill of particulars.'

A bill of particulars is provided for in Rule 116 of the Rules of Criminal Procedure.

It is our observation that the lack of specificity as to the property taken or its value in the information does not render the information void and that the bill of particulars, when requested, does not have the effect of amending the information then in question but merely supplements it. The element of time is covered by Criminal Rule 118 and the amended information here in question satisfies that rule.

SPECIFICITY

Under Criminal Rule 121 the value of the personal property need not be alleged:

'* * * unless such allegation is necessary to charge the offense under Rule 115, * * *.'

The statute cited in the amended information, in part, reads as follows:

'13--663. Degrees of theft

'A. 'Grand theft' is:

* * *

* * *

'2. Theft of money or property from the person of another.'

The first subsection of the above statute requires that the personal property be of a value of more than $100 to constitute grand theft, whereas there is no monetary value of property required in a theft from the person. In the proof of guilt of the offense of grand theft from the person the value of the personal property stolen is not a material element of the crime.

In State v. Little (Grand Theft), 104 Ariz. 479, 455 P.2d 453 (1969), the Arizona Supreme Court addressed itself again to the sufficiency of description problem. The form of the information (Rules 114 and 115) was discussed. The offense of grand theft was charged both by giving the statutory name of the crime and by...

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