State v. Moreno, 960

• Decision Date: 15 April 1946
• Docket Number: 960
• Citation: 64 Ariz. 226,168 P.2d 237
• Parties: STATE v. MORENO
• Court: Arizona Supreme Court

168 P.2d 237

64 Ariz. 226

STATE v. MORENO

No. 960

Supreme Court of Arizona

April 15, 1946

Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.

Russell Figueroa Moreno was convicted of burglary, and he appeals.

Affirmed.

Leonard S. Sharman, of Phoenix, for appellant.

John L Sullivan, Atty. Gen., Maurice Barth, Asst. Atty. Gen., and Edwin Beauchamp, Co. Atty., and R. H. Renaud, Deputy Co. Atty., both of Phoenix, for appellee.

Stanford Chief Justice. La Prade and Morgan, JJ., concur.

OPINION

Stanford Chief Justice.

Defendant was found guilty in the superior court of the crime of burglary. A motion in arrest of judgment was filed by the defendant and later a motion for new trial, both of which were overruled and from which the defendant appeals to this court.

The information is designated "Information for burglary, a felony," and in the body of the information it is stated that the defendant "did then and there in the night-time enter that certain building known as Nick's Cafe, situated at 7th and Washington Streets in the City of Phoenix, County of Maricopa, State of Arizona, with the intent then and there and therein to commit the crime of theft; * * *"

Section 43-901, A.C.A.1939, is as follows:

"Burglary defined -- Degrees -- Punishment. -- Every person who enters any building, dwelling-house, office, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, garage, tent, vessel, or railroad car with intent to commit grand or petit larceny or any felony; and every person who enters any outhouse or other building not above enumerated, with intent to commit any felony, is guilty of burglary. Burglary committed in the night-time is burglary of the first degree, and burglary committed in the daytime is burglary of the second degree."

By assignments of error defendant claims that: (1) The information charging the defendant did not inform him of the nature of the accusation nor contain a statement in ordinary and concise language setting forth the elements of the offense charged. (2) That the information filed did not advise defendant as to the ownership or occupancy of the building alleged to have been burglarized.

The essential thing for determination in this case is whether the information is sufficient to advise defendant of the crime charged.

It is defendant's contention that the word "theft" as referred to in the information is so uncertain as to its meaning under the charge of burglary that the information is thereby made vague, indistinct, indefinite and confusing.

Defendant quotes from the case of Kinksbury v. State, 28 Ariz. 86, 235 P. 140; Earp v. State, 20 Ariz. 569, 184 P. 942; Rodriquez v. Territory, 14 Ariz. 166, 125 P. 878; Williams v. State, 12 Tex.App. 395, and many other cases. We find on investigation of the Arizona cases that all of the opinions were rendered prior to the adoption of our rules and enactment of same into the law of our state in 1940. Sec. 44-708, A.C.A.1939, under the heading of "Form of information" now reads as follows:

"The information may be in substantially the following form:

"In the (here state the name of the court) the --- day of ---, 19--. * * * X.Y. (here state the title of the county attorney) for the county of --- accuses A. B. of (here charges the offense in one of the ways mentioned in section 152 -- e.g. murder (assault with intent to kill, poisoning an animal contrary to section 4825, Revised Code of 1928,)) and charges that (here the particulars of the offense may be added with a view to avoiding the necessity for a bill of perticulars (particulars)). (Rule Cr.Proc. § 151)."

The case of State v. Benham, 1941, 58 Ariz. 129, 118 P.2d 91, 92, is one where manslaughter was charged and the means of taking the life was an automobile driven by the defendant and the pertinent portions of the information read as follows:

"The said George Benham, on or about the 14th day of October, 1940, and before the filing of this information, at and in the County of Pima, State of Arizona, did then and there unlawfully and negligently kill one Thelma Haines, a human being. * * *"

We further quote:

"* * * The code of criminal procedure section 44-711, Arizona Code 1939, provides that an indictment or information may charge an offense (1) by its common-law or statutory name, (2) by reference to the section or subsection of the statute creating the offense, and (3) '(b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged.' Section 44-712 provides that when the offense is charged as permitted in the preceding section 'but fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense, or to give him such information as he is entitled to under the constitution of this state, the court may, of its own motion, and shall, at the request of the defendant, order the county attorney to furnish a bill of particulars containing such information as may be necessary for these purposes.' * * *

"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.

"The information charged the offense by name and also in accordance with subdivision (b), section 44-711, supra. It does not set out the means used by defendant to commit the homicide, nor was it necessary that it should. Sec. 44-717.

* * *

"The simplified rules of procedure do not take from a defendant one whit of meritorious defense, but those rules do not tolerate defenses that only delay or obstruct the termination of criminal cases. An indictment or information that charges a homicide by name, as for instance, manslaughter, is good under the code, but one thus charged is entitled to know what the state expects to prove against him before he is put on his trial. It is not hardship on the state, and it is certainly due to the defendant, that he be told that the state will, for example, offer evidence of three criminal acts, to wit, that the defendant was driving his automobile while under the influence of intoxicating liquors, that his headlights were poor, and that his brakes were inefficient and because thereof he ran into and killed the deceased."

Section 43-5501, A.C.A.1939, under the heading of "Theft defined" states the following:

"Any person who commits any other offense constituting larceny or embezzlement or specifically punishable as such, under the provisions of any law in force at the time this act takes effect, is guilty of theft. Any law which refers to or mentions larceny, embezzlement, or stealing, shall be interpreted as if the word 'theft' was substituted therefor."

The case of People v. Myers, 206 Cal. 480, 275 P. 219, affirms a conviction of the superior court on an information charging burglary under its penal code reading as follows:

"'Every person who enters any house, room, apartment, tenement, shop warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, mine, or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.' This information as originally drafted was...