State v. Scofield

• Citation: 7 Ariz.App. 307,438 P.2d 776
• Decision Date: 22 March 1968
• Docket Number: No. 2,CA-CR,2
• Parties: The STATE of Arizona, Appellee, v. James I. SCOFIELD, Appellant. 95.
• Court: Court of Appeals of Arizona

Page 776

438 P.2d 776

7 Ariz.App. 307

The STATE of Arizona, Appellee, v. James I. SCOFIELD, Appellant.

No. 2 CA-CR 95.

Court of Appeals of Arizona.

March 22, 1968.

Rehearing Denied April 17, 1968.

Review Denied May 14, 1968.

Darrell F. Smith, Atty. Gen., Terry M. Pierce, Asst. Atty. Gen., William J. Schafer III, County, Attorney, Pima County, Tucson, for appellee.

Douglas C. Howard, Tucson, for appellant.

MOLLOY, Judge.

This is an appeal from a conviction of theft by embezzlement of a car rented by the defendant from a car-rental agency.

The defendant entered into a rental contract with 'Econo-Car of Tucson' on July 15, 1966, of a 1966 Plymouth Belvedere. The written contract provided that the car would be returned 'Not later than: 7/25/66 2:30 PM.' There was no deposit paid on the rental, the defendant's credit being accepted by the rental agency on the basis of a credit card issued by another car-rental system. The written contract indicated the car was to be used in the States of Arizona and California only.

When the car was not returned as provided by the contract, the rental agency went to the address given by the defendant and found he had moved from that address a day or two after renting the car without leaving a forwarding address. No further information as to the whereabouts of the car or the defendant was had until the car was found abandoned on the streets of Lawton, Oklahoma, on September 9, 1966.

The statute under which the defendant was charged provides that a person is guilty of theft by embezzlement who '(h)as leased or rented a motor vehicle * * * and who Fraudulently fails to return to motor vehicle * * * to its owner within ten days after the lease or rental agreement has expired.' (Emphasis added.) A.R.S. § 13--682(4) (as amended).

The defendant took the stand in his own defense. He testified that, when he rented the car, he was a week behind on the rent for the house he was occupying in Tucson, and that, within a day or two after renting this motor vehicle, he drove it to Fort Worth, Texas. He remained in Fort Worth until the middle of August, and then moved to Wichita Falls, Texas. He continued to use the car, though his wife had a car which he used part of the time. He made no attempt to notify the rental agency, but relied, he testified, upon a statement made to him at the time he rented the car that it was not essential he return the car on the tenth day. On September 9, hearing there was a warrant out for his arrest, he took the car to Lawton, Oklahoma, and tried to turn the car into local car-rental agencies who refused to accept the car. He then left the car parked on the street, and the key at a hotel in the city. The defendant testified he had been informed at the time he rented the motor vehicle that he would be liable for arrest if he did not return the car to Tucson, Arizona, and, being financially unable to do so, decided to use the car in Texas instead and to later abandon the car in Oklahoma. The defendant further justified himself in that he had told the car agency he might need the car to go to Texas but that this was omitted from the contract. The two persons handling this rental for the rental agency testified the only mention of an out-of-state trip was one to California and that it was made clear the car must be returned by the tenth day.

Numerous assertions of error are raised. Several of such assertions overlap and others are not argued. As to the latter, we regard the failure to argue the assertion to be an abandonment, State v. Bird, 99 Ariz. 195, 407 P.2d 770 (1965), cert. denied 384 U.S. 1025, 86 S.Ct. 1977, 16 L.Ed.2d 1030 (1966). Of the assertions of error which are argued, we believe they may be disposed of by answering five fundamental questions.

IS THE WORD 'FRAUDULENTLY' SUFFICIENTLY DEFINITE IN MEANING?

The contention is made that either the subject statute is rendered unconstitutionally vague by the use of the word 'fraudulently' or else there is a failure of proof in that there is no showing of the nine classic elements of fraud, i.e., a misrepresentation with knowledge of its falsity, et cetera. See Poley v. Bender, 87 Ariz. 35, 39, 347 P.2d 696, 698 (1960).

Constitutional parameters permit the legislature wide discretion in selecting conduct to be penalized by criminal sanctions. The determination that an act alone, without criminal intent, shall constitute a crime is within this power. Borderland Construction Co. v. State, 49 Ariz. 523, 68 P.2d 207 (1937).

In evaluating constitutionality:

'It is our duty to uphold an act if, on any reasonable theory, a construction may be given thereto which would make it constitutional.' McManus v. Industrial Commission, 53 Ariz. 22, 28, 85 P.2d 54, 56 (1938);

and see State v. Krug, 96 Ariz. 225, 393 P.2d 916 (1964); and State v. Locks, 91 Ariz. 394, 372 P.2d 724 (1962).

In the case of the instant statute, the act selected for possible sanction is at least as definite and certain as the average criminal statute. The Actus reus is the failure to return a rented vehicle within ten days after the rental agreement has expired. If this statute fails for indefiniteness, it is in the expression of the mental state, or Mens rea, which is designated as being a necessary element.

That the words selected by the legislature to describe this criminal intent are not inappropriate in an embezzlement statute is indicated by general law:

'Ordinarily, to constitute embezzlement, there must be a Fraudulent intent to deprive the owner of his property, and appropriate it.' (Emphasis added.) 29A C.J.S. Embezzlement § 12a, at p. 35.

See also 29A C.J.S. Embezzlement § 11, at pp. 27--28; 26 Am.Jur.2d Embezzlement § 19, at 570 and § 22 at 572.

These encyclopedic generalizations digest a myriad of decisions which make use of the word 'fraudulent' or 'fraudulently' in referring to the intent which must accompany an act of embezzlement. If the embezzlement statute itself does not expressly refer to such an intent, the courts will usually read the requirement into the law. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Shaw v. United States, 357 F.2d 949, 957, 174 Ct.Cl. 899 (1966); United States v. Summers, 19 F.2d 627 (W.D.Va.1927); People v. Riggins, 13 Ill.2d 134, 148 N.E.2d 450 (1958); Commonwealth v. Shilladay, 311 Ky. 478, 224 S.W.2d 685 (1949); State v. Hanna, 224 Or. 588, 356 P.2d 1046 (1960); 26 Am.Jur.2d Embezzlement § 19, at 570; 29A C.J.S. Embezzlement § 12a, at pp. 35--36; Annots., 13 A.L.R. 142, at 145, and 116 A.L.R. 997, at 999.

This is not always true, however, for in State v. Prince, 52 N.M. 15, 189 P.2d 993 (1948), a new embezzlement statute was struck down as unconstitutional because it omitted from its context the word 'fraudulently.' The former embezzlement statute, which included this word in its definition, was held to be still effective in that state. The reason given by the court for holding the new statute to be unconstitutional was that the Omission of the word 'fraudulently' rendered the statute '* * * uncertain in its meaning, vague and indefinite.' (189 P.2d at 995.) We thus have the highest appellate court of a sister state solemnly adopting the antithesis of the defendant's contention here.

A reading of many cases dealing with the crime of embezzlement will indicate that the courts often use the words 'fraudulently' and 'fraudulent intent' as synonyms for 'criminal intent.' See, e.g., Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 250, 96 L.Ed. 28, (1952); United States v. Ludwig, 177 F.Supp. 365, 367 (E.D.Pa.1959); People v. Ranney, 213 Cal. 70, 1 P.2d 423 (1931); People v. Riggins, 148 N.E.2d at 452; Commonwealth v. Shilladay, 224 S.W.2d at 687; and State v. Hanna, 356 P.2d at 1048.

When the law attempts to define a state of mind, neither psychiatry, nor law permits precision. Cf. State v. Cano, 103 Ariz. 37, 436 P.2d 586 (1968). In determining degree of certainty required by due process, the courts should take into account the legislature's difficulty in expressing particular concepts. Cf. Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948); 21 Am.Jur.2d Criminal Law § 17, at 98; 22 C.J.S. Criminal Law § 24(2), at pp. 62--74.

No case has been called to our attention which has struck down a statute because a necessary element of the crime is 'criminal intent,' 'feloniously' or 'fraudulently.' If such statutes be unconstitutional, then the whole structure of our criminal law is in jeopardy. Our law has never settled on a definite connotation for 'criminal intent' or 'mens rea,' regarded by most publicists as an essential of 'all true crime.' Perkins, A Rationale of Mens Rea, 52 Harv.L.Rev. 905, 909 (1939). Compare Burdick, Law of Crime § 129, at 153; Hall, General Principles of Criminal Law, ch. III (2d ed. 1960); 1 Russell on Crime, at 31--36 (12th ed. Turner 1964); and see State v. Cutshaw, 7 Ariz.App. 210, 437 P.2d 962 (1968), note 13.

Some courts have taken the view that the intent necessary to constitute the crime of embezzlement is the same Animus furandi as that required for larceny. State v. Holdren, 143 Mont. 103, 387 P.2d 446 (1963); State v. Hanna, 356 P.2d at 1047. This court recently held that the intent to permanently deprive the owner of his property was a necessary element of grand theft. State v. Wood, 7 Ariz.App. 22, 435 P.2d 857 (1967).

However, we believe there is a fundamental difference between the crime of larceny and embezzlement that creates a difference in the intent required to constitute the crime. Historically, larceny and embezzlement have separate origins. The first is a common-law crime, 32 Am.Jur. Larceny § 2 at 882; 52 C.J.S. Larceny § 1, at p. 779; while the latter is a creature of statute. 26 Am.Jur.2d Embezzlement § 1, at 549; 29A C.J.S. Embezzlement § 2, at p. 4. The gist of the crime of embezzlement is a breach of trust. State v. Russell, 265 S.W.2d 379, 44...