State v. McCormick, 2

• Citation: 7 Ariz.App. 576,442 P.2d 134
• Decision Date: 18 June 1968
• Docket Number: CA-CR,No. 2,2
• Parties: The STATE of Arizona, Appellee, v. J. Carlos McCORMICK, Appellant. 100.
• Court: Court of Appeals of Arizona

Page 134

442 P.2d 134

7 Ariz.App. 576

The STATE of Arizona, Appellee, v. J. Carlos McCORMICK, Appellant.

No. 2 CA-CR 100.

Court of Appeals of Arizona.

June 18, 1968.

Rehearing Denied July 23, 1968.

Darrell F. Smith, Atty. Gen., Phoenix, William J. Schafer III, Pima County Atty., Lars Pedersen, Chief Deputy County Atty., Tucson, for appellee.

Lawrence P. D'Antonio, Tucson, for appellant.

HATHAWAY, Chief Judge.

This appeal presents for review the defendant's conviction as to each of eleven counts of grand theft. He was accused by indictment returned by a Pima County grand jury of stealing certain sums of money from Alianza, a fraternal society whose members are Spanish speaking people organized into numerous lodges. The defendant, who became associated with Alianza in the early 1950's became its Supreme President in May, 1962. The alleged thefts with which he was charged occurred subsequent thereto in the form of a number of checks issued by him or at his direction to various individuals and business entities.

On appeal, the defendant raises the following questions:

'1. Whether a defendant can be tried upon a void indictment returned by a defectively impaneled grand jury.

2. Whether a defendant can be convicted of theft by larceny upon proof of theft by embezzlement.

3. Whether a defendant can be convicted of theft by larceny when the State fails to offer any evidence on one or more elements of the crime.

4. Whether there is sufficient evidence to support the verdict.

5. Whether the trial court erred in charging or refusing to charge certain instructions * * *.'

The defendant contends that the trial court erred in failing to quash the indictment which was 'void because returned by a defectively impaneled grand jury.' This claim of 'voidness' is predicated on the decision of our Supreme Court in State v. Superior Court, etc., 102 Ariz. 388, 430 P.2d 408 (1967) which sustained the action of the Pima County superior court in discharging the Pima County grand jury because of a defect in its impanelment. Subsequently, however, the Supreme Court in State v. Superior Court, etc., 102 Ariz. 588, 435 P.2d 485 (1968) held that such defect was not jurisdictional, hence failure to timely move to quash the indictment would constitute a waiver of such defect.

The defendant did move to quash the indictment urging, inter alia, as grounds therefor the failure to inquire into the qualifications of the grand jurors (the defect which was considered by the Supreme Court to be grounds for discharge). No evidence in support thereof was attached to the motion nor was a hearing held thereon. The trial court, however, granted to the defendant an opportunity to file an amended motion to quash the indictment prior to a specified future date. No amended motion was filed and more than two months after the expiration of the allotted period the trial court, by minute entry, denied the original motion to quash.

The defendant had the burden of establishing the alleged defect in the jury impanelment, Lopez v. State, 158 Tex.Cr.R. 16, 252 S.W.2d 701 (1952), cert. denied, 344 U.S. 893, 73 S.Ct. 213, 97 L.Ed. 691 (1952); State v. Manney, 24 N.J. 571, 133 A.2d 313 (1957); United States v. Hoffa, D.C., 205 F.Supp. 710 (1962); United States v. Greenberg, D.C., 200 F.Supp. 382 (1961); United States v. Flynn, D.C., 103 F.Supp. 925 (1951), and since the motion was based on allegations of facts dehors the record in the criminal cause, it was incumbent upon him to present evidence in support of the allegations of his motion to quash. State v. Superior Court, etc., 7 Ariz.App. 170, 436 P.2d 948 (1968); State v. Pennick, 364 S.W.2d 556 (Mo.1963); State v. McIntosh, 333 S.W.2d 51 (Mo.1960); McDonald v. State, 379 S.W.2d 349 (Tex.Cr.App.1964); Bates v. State, 166 Tex.Cr.R. 177, 312 S.W.2d 675 (1958); United States v. Skidmore, 123 F.2d 604 (7th Cir. 1941); Cochran v. United States, 310 F.2d 585 (8th Cir. 1962); 27 Am.Jur. Indictments and Informations § 142; 42 C.J.S. Indictments and Informations § 214b(1). Therefore, nothing having been presented in support of the motion, it was properly denied. United States v. Perlstein, 120 F.2d 276 (3d Cir. 1941); Smith v. State of Mississippi, 162 U.S. 592, 16 S.Ct. 900, 40 L.Ed. 1082 (1896). ¹

The defendant's second contention is:

'A defendant cannot be convicted of theft by larceny upon proof of theft by embezzlement.'

Count I of the indictment recited:

'The grand jurors of the County of Pima, in the name of the State of Arizona, and by its authority accuse J. Carlos McCormick of the crime of grand theft and charge that on or about the 3d day of July 1963, in Pima County, Arizona, and before the bringing of this indictment, the said J. Carlos McCormick, stole from Alianza money of a sum exceeding $100, all in violation of A.R.S., § 13--661, § 13--662, § 13--663 as amended and § 13--671.'

The remaining counts are worded exactly the same with the exception of the date of the theft alleged. In response to the defendant's motion for a bill of particulars, the State furnished the following information as to each count: (1) the exact amount of money allegedly stolen, (2) that each of the amounts indicated were checks drawn on Alianza accounts and (3) the names of the apyees and/or the beneficiaries or possible recipients of the money.

The defendant contends that he may not be charged with one crime and then convicted thereof on proof of an entirely different offense. See State v. Singh, 4 Ariz.App. 273, 419 P.2d 403 (1966). In Singh, one count of the information charged the defendant with passing or uttering a supplemental escrow instruction to Dwayne Moore. At trial, the State proved that the aforesaid instrument was delivered to one Frank Donaldson rather than to Dwayne Moore. At the close of the State's case, a motion to amend the information to conform to this evidence was granted pursuant to Rule 145, Rules of Criminal Procedure, 17 A.R.S. On appeal, this court reversed, pointing out that notwithstanding Rule 145 allows an amendment to be made To the information, it does not allow an amended information to be substituted to charge a defendant with a different crime. We stated:

'A defendant is entitled to be charged with a specific offense in order that he may know the nature and extent of the accusation against him. One way of testing herein whether the defendant has been prejudiced by the amendment is to ask whether or not upon an acquittal of the charge of passing a forged document to Dwayne Moore, the defendant could then be charged with forgery in relation to passing a forged document to Frank Donaldson. If there has been no jeopardy as to a charge of passing a forged document to Frank Donaldson, then we are dealing with two separate offenses, and the court may not grant the County Attorney's motion to change the nature of the charge against the defendant by allowing an amendment to the information. It is apparent in the instant case, that we have two separate and distinct crimes involved. One would be the passing or uttering of forged instruments to Dwayne Moore. The other would be the passing of forged instruments (even though they may be the same instruments) to Frank Donaldson. Under these circumstances, defendant was materially prejudiced by the amendment, and the judgment must be reversed as to Count II.' 4 Ariz.App. at 277--278, 419 P.2d at 407.

Accord: Peterson v. Jacobson, 2 Ariz.App. 293, 411 P.2d 31 (1966).

The Singh holding is inapposite here. The defendant McCormick was charged with stealing money from Alianza. Had the State proved another offense such as a theft from another association or person, we might agree that the defendant had been prejudiced thereby in his defense on the merits.

In the trial court, as well as on appeal, the State relied on State v. Bradley, 3 Ariz.App. 70, 412 P.2d 67 (1966) to counter the defendant's motion to dismiss or, in the alternative, direct a verdict of acquittal as to all counts of the indictment. In Bradley the defendant was charged pursuant to A.R.S. §§ 13--661, 13--671 and 13--663 of grand theft, auto. This court held that, notwithstanding a defendant's lawful acquisition of possession, he could be convicted of the crime of theft.

The defendant's position is that the State was required to prove that he had committed larceny. We do not agree. The defendant was charged with grand theft in that he stole certain sums of money from Alianza. Rule 148, Rules of Criminal Procedure, provides the following form may be used to charge the offense of theft: 'A.B. stole from C.D. one horse.' As we recently pointed out, our Supreme Court has adopted a complete new set of rules for criminal procedure and the new 'theft' statutes were intended to eliminate technical defenses. State v. Scofield, 7 Ariz.App. 307, 438 P.2d 776, 782 (1968), review denied May 14, 1968.

A.R.S. § 13--662 evidences a legislative intent to eliminate the technicalities previously existing in the pleading and proof of larceny, embezzlement or stealing:

'Any law which refers to or mentions larceny, embezzlement or stealing shall be interpreted as if the word 'theft' were substituted therefor.'

In California, whence we derived our 'theft' statutes, it is uniformly held that it is unnecessary to specify in the accusatory pleading the Kind of grand theft. People v. Martin, 153 Cal.App.2d 275, 314 P.2d 493 (1957); People v. Dimitrovich, 194 Cal.App.2d 710, 15 Cal.Rptr. 407 (1961); People v. Antoine, 180 Cal.App.2d 786, 4 Cal.Rptr. 589 (1960); People v. Riley, 217 Cal.App.2d 11, 31 Cal.Rptr. 404 (1963). A conviction of grand theft is supported by evidence that the defendant was guilty of embezzlement, larceny or obtaining property by false pretenses. People v. Kovach, 197 Cal.App.2d 80, 16 Cal.Rptr. 876 (1961); People v. McManus, 180 Cal.App.2d 19, 4 Cal.Rptr. 642 (1960), and there is no material variance between a charge of grand theft in an indictment or information and proof of...