State v. Martin

• Decision Date: 25 January 1966
• Docket Number: No. 2,CA-CR,2
• Citation: 410 P.2d 132,2 Ariz.App. 510
• Parties: STATE of Arizona, Appellee, v. Kenneth Ray MARTIN and Ralph Edward Martin, Appellants. * 18.
• Court: Arizona Court of Appeals

Page 132

410 P.2d 132

2 Ariz.App. 510

STATE of Arizona, Appellee, v. Kenneth Ray MARTIN and Ralph Edward Martin, Appellants. ^*

No. 2 CA-CR 18.

Court of Appeals of Arizona.

Jan. 25, 1966.

Darrell F. Smith, Atty. Gen., E. D. McBryde, Pinal County Atty., Lloyd D. Brumage, Chief Deputy County Atty., Pinal County, Florence, for appellee.

M. B. Moseley, Phoenix, for appellant.

KRUCKER, Chief Judge.

Kenneth Ray Martin and Ralph Edward Martin appeal from convictions, by a jury, of five counts of forgery. The facts will be presented in a manner most favorable to sustaining the verdict.

In August 1963, both defendants, with several others, visited the home of one Virgil Baker, defendants' uncle. Baker was the Foreman of a farm owned by one Woodman Moore, and was authorized to write checks on the Moore account, keeping the checkbook at his home. Early in September 1963, Baker discovered that two pages of checks were missing and at the trial identified the checks used in the alleged forgery as those missing from the Moore checkbook.

Charlotte Johnson, the prosecution's key witness and defendants' alleged accomplice, testified that she had known the defendants for over a year prior to the date of the alleged crimes. She visited the Baker home with the defendants about July 1, 1963, and thereafter went to California. On August 19, 1963, she received a telephone call from Kenneth Martin, who instructed her to return immediately to Phoenix. She arrived in Phoenix later that evening and went to the Martin apartment. Ralph Martin showed her sheets of Woodman Moore checks and, when both defendants were present, Charlotte was told of the plan to travel to Coolidge, Arizona, and attempt to pass the checks.

Charlotte Johnson further testified that about 3:00 p. m. on August 20, 1963, she and the defendants drove to Coolidge in Kenneth's 1959 Mercury and surveyed the town for possible places to cash checks. The plan was conceived that Charlotte would write out the checks in the fictitious name of John Thomas and sign Woodman Moore's name. One of the defendants would then endorse the payee's name on the back of the check, Charlotte would attempt to cash the checks, posing as Jean Thomas, the payee's wife, and endorse that name on the back of the checks.

Five checks were passed, the first at the Coolidge Market, where Charlotte cashed the check alone. The owner of this market testified that later the same day both defendants came in the store and attempted to cash a Woodman Moore check. The next check was cashed at Lee's Foodland Market and no evidence was offered to show that the defendants entered this store. Charlotte cashed the third check at the Safeway Store in Coolidge and the cashier testified that Kenneth Martin was present in the store when she cashed this check. The fourth check was cashed by Charlotte at George Y. Wah's Market. An employee of this market testified that about one hour later Kenneth unsuccessfully attempted to cash a similar check. The fifth check was cashed at the Galloping Goose Bar and a bartender testified that both defendants were present about the same time Charlotte cashed the check. Several other attempts to cash checks were made and a bartender for the La Palma Bar testified that the three were present in that bar and left together in a 1959 Mercury, later identified as Kenneth's. Charlotte further testified that the trio returned to Phoenix, divided the funds, and that she left for California early the following morning. She also testified that about one month prior to the date the checks were passed, Kenneth assisted her in obtaining an affidavit of identity with which a temporary driver's license was issued to her in the name of Jean Thomas.

On September 12, 1963, Charlotte Johnson was arrested and gave a written statement concerning the entire episode, thereby implicating the defendants. She entered a plea of guilty and a four-year suspended sentence was imposed. The defendants thereafter were arrested and a preliminary hearing held as to Kenneth Martin, Ralph Martin having waived preliminary hearing. Kenneth was informed against on five counts of forgery and Ralph on four counts of forgery, to which not guilty pleas were entered. The cases were later consolidated and the information, as to both defendants, amended changing the date of the commission of the alleged crimes to 'on or about August 20, 1963' from the original information which charged commission of the crimes 'on or about August 15, 1963'. The trial was continued to allow the defendants time to prepare defenses in accordance with the amendment to the information.

Defendants appeal their conviction and ask for a new trial, asserting eight assignments of error allegedly committed by the trial court.

The first two assignments of error will be considered together since both concern the propriety of the trial court's action in allowing the prosecution to amend the information changing the date of the alleged crimes. Defendants contend that the trial court erred in denying their motion to quash the amendment to the information.

The fact that the State erroneously provided in its initial information that the alleged crimes were committed 'on or about August 15, 1963' rather than 'on or about August 20, 1963' does not appear significant. Rule 118, Arizona Rules of Criminal Procedure, 17 A.R.S., provides that an indictment or information need not contain an allegation of the time of the commission of an offense unless such allegation is necessary to charge the offense. In the amendment to the information, both appellants were charged with five counts of forgery in violation of A.R.S. § 13-421. By a careful reading of this statute, nowhere does it appear that time is an essential element of the crime of forgery. Three elements are, however, essential to constitute the offense of forgery, 23 Am.Jur. Forgery § 6 (1940):

'(1) There must be a false writing or alteration of an instrument;

(2) The instrument as made must be apparently capable of defrauding; and

(3) There must be an intent to defraud.'

Further, 'The crime of forgery is complete when one either makes or passes a false instrument with intent to defraud.' State v. Maxwell, 95 Ariz. 396, 399, 391 P.2d 560, 562 (1964). Since time is not an essential element of the crime of forgery, an allegation in the information that the crime was committed 'on or about' appears sufficient. Rule 118, Arizona Rules of Criminal Procedure.

This Court has reviewed the case of State v. Rogers, 2 Ariz.App. 232, 407 P.2d 773, 776 (1965), which held:

'* * * that where an amended information is filed as distinguished from an amendment to an information * * * the defendant must be rearraigned on the amended information.'

That case, however, involved a plea of guilty to the original information, which was defective, and the filing of an amended information correcting its dificiencies. The defendant attempted to withdraw his plea of guilty and the trial court ruled that the plea stood as to the amended information. On appeal, the Court of Appeals, Division One, held that this constituted reversible error.

This Court construes an 'amendment to an information' to mean a supplement to an otherwise effective and sufficient information, whereas 'an amended information' constitutes the filing of a new instrument which supersedes its predecessor. Thus, the case at bar can be distinguished from State v. Rogers, supra, since the information in the case before this Court was sufficient to charge the commission of the crimes of forgery, and the amendment to the information merely consolidated the charges against the defendants, both being charged with five counts of forgery, and changed the date of the commission of the alleged crimes. This constitutes an 'amendment' to the original information and not the filling of an 'amended information.'

Assignment of error number three only concerns the defendant Ralph Martin. The facts show that Ralph Martin was charged with four counts of forgery and, after waiving a preliminary hearing, was arraigned on these four counts to which he entered a plea of not guilty. Upon consolidation of these cases and the filing of the amendment to the information, both defendants were charged with five counts of forgery. The prosecution admits that Ralph Martin was inadvertently charged with an additional count of forgery, which was Count I, in the amendment to the information, to which preliminary hearing was not waived. This Court agrees that the record shows such variance and it is, therefore, held that Count I be dismissed as to Ralph Martin.

In their assignment of error number four, defendants charge that the trial court abused its discretion in refusing to allow the admission of evidence concerning their defense of alibi. The facts show that notice of intent to claim alibi was filed on the day preceding trial. Defendants acknowledge their failure to file timely notice in accordance with Rule 192, subsec. B, Arizona Rules of Criminal Procedure, which requires the filing of notice of intent to rely on alibi not less than five days prior to the trial, and heavily rely on the last sentence of this rule which reads:

'If a defendant fails to file the required notice, the court, in its discretion, may exclude evidence offered for the purpose of proving such defense.' (Emphasis supplied.)

The only basis urged in support of this contention is that the prosecution was not prejudiced by defendants' failure to file timely notice and no surprise or unfair advantage resulted. Thus, defendants argue, the trial court abused its discretion in refusing to admit alibi evidence. We cannot agree.

Since alibis are readily fabricated, they 'should be received with caution, carefully scanned for the purpose of determining its truth or falsity, and weighed and determined like any other evidence.' 23 C.J.S. Criminal Law § 923a (1961) at page 657. Further, statutes providing for the...