State v. Parsons

• Citation: 222 P.2d 637,70 Ariz. 399
• Decision Date: 02 October 1950
• Docket Number: No. 1002,1002
• Parties: STATE v. PARSONS.
• Court: Supreme Court of Arizona

Page 637

222 P.2d 637

70 Ariz. 399

STATE v. PARSONS.

No. 1002.

Supreme Court of Arizona.

Oct. 2, 1950.

Croaff & Croaff, of Phoenix, for appellant.

Fred O. Wilson, Attorney General, Chas. Rogers, Assistant Attorney General, and Douglas Clark, Deputy County Attorney, Phoenix, for appellee.

UDALL, Justice.

Defendant Elmer Merle Parsons, age 23, was convicted upon two felony counts, to wit: Burglary (first degree) and grand theft, and was thereafter sentenced by the court to serve not less than three nor more than four years in the state penitentiary on each count. The sentences, however, were to run concurrently. From the judgments of conviction and the orders of the court denying his motions for a new trial and in arrest of judgment, this appeal was taken.

The facts, briefly stated in the light most favorable to sustaining the convictions, are that defendant had interrupted his journey by air to Pittsburgh, stopping over in Phoenix late Saturday evening to visit with friends. He stayed with them Saturday night, and late Sunday afternoon he began drinking, continuing this until 10 p.m. at which time he parted from his acquaintances. Later that same night he broke the padlock from a trailer house (which was being used by the owner as an office for his used car business) at 1757 West Van Buren Street in Phoenix. Defendant, according to his own admissions, entered same to procure the keys to cars standing on the lot. One of these keys fitted a 1948 Mercury coupe, which he then proceeded to drive away. Shortly thereafter defendant drove to the Greyhound bus depot where he got his luggage from a locker.

Discovering that the car he was driving had no license plates and but little gasoline, he took plates from a parked car, wired them onto the Mercury coupe, and then proceeded to break into a service station at 3751 East Van Buren to obtain some gasoline. The resultant noise attracted attention and defendant fled in the Mercury towards the town of Tempe, about nine miles east of Phoenix, pursued by the station operator. He eluded his pursuer but in doing so badly wrecked the car. He was later apprehended about 2 a.m. in the car by a Tempe policeman. During that day he gave a signed statement to a deputy sheriff admitting these facts. This statement was admitted in evidence.

At the trial his only defense was that he was in an 'alcoholic fog' and had a very indefinite recollection of the occurrences on the evening in question and was therefore incapable of forming a criminal intent to commit the crimes charged.

By reason of the faulty arrangement of his brief, it has been extremely difficult to follow the defendant's assignments of error and the legal points relied upon. Nevertheless, we shall consider the discernible errors in such order as seems advisable.

The first count of the information charged that defendant '* * * did then and there in the night-time enter trailer house of one L. A. Wolford * * * with the intent then and there to commit the crime of larceny.' (Emphasis supplied.) The defendant moved to quash this count of the information upon the ground that it did not charge a public offense under Sec. 43-901, ACA 1939, which defines burglary as follows: '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; * * * is guilty of burglary. * * *'

Thereupon the court permitted the county attorney to amend the information by striking out the words 'trailer house' and substituting the word 'office' therefor, after which the motion to quash was denied.

It is urged that the court erred in permitting this amendment and in denying the motion to quash, it being claimed that the amendment did not correct the defect. We hold there is no merit to either contention. Sec. 44-748, ACA 1939, expressly authorizes the court at any time to cause an information to be amended and further provides that no appeal shall be sustained upon this ground unless the defendant was in fact prejudiced by permitting such amendment, and there is no claim here of any prejudice to the substantial rights of the defendant.

Unquestionably the burglary count of the information charged a public offense in the words of the statute. This was sufficient. Sec. 44-711, ACA 1939; Atkin v. Territory, 13 Ariz. 26, 108 P. 225; Ford v. State, 21 Ariz. 567, 192 P. 1117; Brown v. State, 25 Ariz. 518, 220 P. 225; Adkins v. State, 42 Ariz. 534, 28 P.2d 612; 9 Am. Jur., Burglary, Sec. 50. The fact that the proof shows that the 'office' in question was a stationary 'trailer on wheels,' with the wheels embedded in the ground, does not deprive it of protection under the burglary statute. Webster's International Dictionary (2d ed.) defines an 'office' to be the 'place where a particular kind of business or service for others is transacted * * *.' See also Anderson v. State, 17 Tex.App. 305, 310, and Houston v. Kirschwing, 117 Colo. 92, 184 P.2d 487.

Another assignment alleges error in the court's refusal to permit an answer to a material question. On re-direct examination the defendant was asked this question by his counsel: 'Q. Mr. Parsons, did you at any time intend to take this man's car?'

The county attorney objected and his objection was sustained, upon the ground that the question had been previously asked and answered by defendant on his direct examination and that the matter had not been gone into on cross examination by the prosecutor. The record bears out this objection and hence under the circumstances there was no error in sustaining it. There was already before the jury the defendant's statement as to his lack of felonious intent to deprive the owner permanently of his car. He was not entitled at this stage to re-emphasize this matter.

There are three assignments of error dealing with instructions given or refused. The trial court gave the following stock instruction on the credibility of witnesses: 'Now, you, ladies and gentlemen of the jury are made the sole judges of the evidence in this case, and you are also the sole judges of the credibility of the witnesses in the case. In determining the credit to be given to the witnesses, you have a right to consider their demeanor and appearance while giving their testimony, and their means of knowledge, any interest or motive which they may have, if shown, and the probability or improbability of the truth of their several statements when considered in connection with the other evidence in the case; and if you believe that any witness has wilfully sworn falsely to any material fact in the case, you have the right to wholly disregard the testimony of such witness, except insofar as his statements may be corroborated by other credible evidence in the case.'

Defendant contends this instruction constituted a comment upon the evidence and hence was violative of Art. 6, Sec. 12 of the Arizona Constitution. He particularly objects to that portion of the instruction dealing with the rule 'falsus in uno, falsus in omnibus.' The giving of varied instructions based upon this maxim has given rise to many diverse appellate decisions. See 23 C.J.S., Criminal Law, § 1259, and cases cited in footnotes. The part of the instruction most strenuously objected to was held not to be error by this court in Prior v. Territory, 11 Ariz. 169, 89 P. 412, and more recently in Singh v. State, 35 Ariz. 432, 280 P. 672, 67 A.L.R. 129. A similar instruction was upheld in Trimble v. Territory, 8 Ariz. 273, 71 P. 932. The instruction heretofore set forth correctly and fairly states the law respecting the credibility of witnesses, and we hold that it is not a comment on the evidence. There is no merit to the assignment.

Next the defendant alleges error in the court's refusal to give his proposed instructions dealing with the matter of intent to commit the two offenses charged, i.e., burglary and grand theft. Under these proposed instructions the jury would have been advised that before they could convict of burglary, they must find 'that the defendant had the specific intent to commit the crime of theft or larceny therein, that is to steal some property therein with the specific intent to permanently deprive the owner of such property.' (emphasis supplied) and as to the grand theft charge 'that the defendant had the specific intent to permanently deprive the owner of said property.' (Emphasis supplied.)

The court in instructing the jury read to them the statutory definitions of burglary and theft, and in addition thereto instructed them: 'Now, as provided by statute, the gist of the offense is the entering of a room with intent to commit grand or petit larceny, and before you can find the defendant guilty of burglary, you must find that, if he did enter the room or the apartment where the property was, he did it with the intent to commit grand or petit larceny, not particularly to steal the property which it is claimed in this case he did steal, but that he had the intent formed when he entered the room to commit the larceny of some property.' Elsewhere in the instructions the court stated: 'The court instructs the jury that if you do not find under Count 2 of the information, that the defendant at the time of the taking of the automobile in question had the specific intent to permanently deprive the owner of such property, but if you do find ...