State v. De Marinis, 1243

• Decision Date: 31 October 1962
• Docket Number: No. 1243,1243
• Citation: 92 Ariz. 225,375 P.2d 574
• Parties: STATE of Arizona, Appellee, v. Vincent DE MARINIS, aka Vincent Capa, Appellant.
• Court: Arizona Supreme Court

Page 574

375 P.2d 574

92 Ariz. 225

STATE of Arizona, Appellee, v. Vincent DE MARINIS, aka Vincent Capa, Appellant.

No. 1243.

Supreme Court of Arizona, In Banc.

Oct. 31, 1962.

William Messing, Tucson, for appellant.

Robert W. Pickrell, Atty. Gen., Harry Ackerman, former County Atty., Jack I. Podret, present County Atty., Pima County, for appellee.

JENNINGS, Justice.

The defendant was convicted of the crime of drawing a check on insufficient funds and sentenced to serve a term of three to five years in the state prison. He appeals the conviction contending various errors were committed by the trial court.

Defendant's assignments of error Nos. 2, 3, 4, 5 and 6 are based on matters allegedly occurring during the course of the trial. The reporter's transcript is not before this Court, not having been made a part of the record on appeal. ¹ There is, therefore, nothing upon which this Court can base a consideration of those assignments. State v. Peters, 60 Ariz. 102, 131 P.2d 814 (1942); Hamilton v. State, 17 Ariz. 483, 154 P. 1039 (1916).

In the first assignment defendant contends that his rights were violated in the preliminary matters before trial. Following a preliminary hearing on a criminal complaint charging defendant with 'obtaining services and money by means of a false and bogus check' and 'drawing check on no account' defendant was held to answer. An information was filed against defendant wherein he was charged in count one with violation of A.R.S. § 13-311 (Obtaining money or property by bogus check or other means). Count two of the information charged defendant with the crime of 'Drawing Check on No Account' as follows:

'That on or about the 12th day of November, 1960 and in Pima County, Arizona and before the filing of this Information, the said Vincent Capa did then and there wilfully and unlawfully and with intent to defraud C. J. Franz dba Palo Verde Market, make, draw, utter and deliver to C. J. Franz a check in the sum of $25.00 for the payment of money and property, knowing at the time of such making, drawing, uttering and delivering said check that he had no account in a bank or credit with said bank to meet said check in full upon presentation, all in violation of A.R.S., Section 13-316A(3) as amended.'

Defendant entered a plea of not guilty to the charges. Prior to trial count one of the information was dismissed and count two, by stipulation, amended to charge defendant with the crime of 'Drawing Check On Insufficient Funds' as follows:

'That on or about the 6th day of December, 1961 and in Pima County, Arizona and before the filing of this Amended Information, the said Vincent Demarinas, aka Vincent Capa, did then and there willingly and with the intent to defraud, C. J. Franz, dba Palo Verde Market, make, draw, utter and deliver to Mary Conklin Franz, a check in the sum of $25 for payment of money and property, knowing at the time of such making, drawing, uttering and delivering said check that he did not have sufficient funds in a bank or credit with said bank or depositary to meet the check in full payment upon presentation, all in violation of A.R.S. Section 13-316A(1) (as amended).' ²

Defendant contends that an information cannot be amended to charge a new crime and that by amending the information to charge defendant with the crime of drawing a check on insufficient funds he was charged with a new crime. He therefore argues that the verdict is void...