State v. Sorrell

• Decision Date: 23 January 1964
• Docket Number: No. 1309,1309
• Parties: STATE of Arizona, Appellee. v. Valeria SORRELL, Appellant.
• Court: Arizona Supreme Court

Page 429

388 P.2d 429

95 Ariz. 220

STATE of Arizona, Appellee. v. Valeria SORRELL, Appellant.

No. 1309.

Supreme Court of Arizona, In Division.

Jan. 23, 1964.

Rehearing Denied Feb. 19, 1964.

Robert W. Pickrell, Atty. Gen., David M. Lurie, Asst. Atty. Gen., Phoenix, for appellee.

Klass & Welliever, Phoenix, for appellant.

LOCKWOOD, Vice Chief Justice.

The appellant, Valeria Sorrell, was convicted of grand theft. The lower court denied a motion for new trial and this appeal followed.

The facts are as follows: Appellant was walking through a department store when the store detective, Helen Lipnick, noticed her. Lipnick followed the appellant to the ladies' suit department and watched the appellant select three suits and take them to a dressing room. From an adjoining dressing room, Lipnick observed the appellant hide the three suits under her full skirt. The appellant then started to leave the store. Lipnick followed her and noticed a sleeve of one of the suits hanging beneath appellant's skirt. Because of store policy, Lipnick made no attempt to apprehend the appellant while inside the store. Once outside the store, however, Lipnick caught up with the appellant and identified herself as a store detective, showing her credentials. The appellant threw the suits at Lipnick and then fled. When Lipnick finally stopped her in a nearby parking lot, the appellant was persuaded to return with the detective to the store where she was placed in police custody.

Appellant now contends the arrest by Lipnick was illegal, that the seizure of the three suits was illegal, and, consequently, that these suits were inadmissible as evidence. We disagree. The statute provides when an arrest may be made by a private person:

'A private person may make an arrest:

'2. When a felony has been in fact committed and he has reasonable grounds to believe that the person to be arrested has committed it.'

We have examined the record in this case and have concluded Lipnick made a valid private arrest. Lipnick fully complied with A.R.S. § 13-1409 which provides:

'A private person when making an arrest shall inform the person to be arrested of the intention to arrest him and the cause of the arrest, unless he is then engaged in the commission of an offense, or is pursued immediately after its commission or after an escape, of flees or forcibly resists before the person making the arrest has opportunity so to inform him, or when the giving of such information will imperil the arrest.'

Lipnick stopped the appellant immediately, identified herself, and asked for the stolen suits. This was a valid private arrest. See Henderson v. United States Fidelity & Guaranty Co., 298 S.W. 404 (Tex.Com.App.1927); People v. Boss, 210 Cal. 245, 290 P. 881 (1930); Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 106 A.2d 587 (1954), cert. denied Garrison v. Commonwealth of Pa., 348 U.S. 879, 75 S.Ct. 120, 99 L.Ed. 692; Burkhardt v. State, 83 Tex.Cr.R. 228, 202 S.W. 513 (1918).

Appellant next complains that the jurors were not free from bias because the jurors had previously served on juries for criminal trials within a year before the trial in the instant case. But the record does not indicate that any jurors either knew the appellant before the trial or had served as jurors in a theft criminal case. Nor was there any showing of actual bias. As this court stated in State v. Hilliard, 89 Ariz. 129, at. 133, 359 P.2d 66, at 68 (1961):

'However, the trial court has the right to use its discretion on a challenge for cause, and so long as there has been no abuse of that discretion it will not be disturbed on appeal.'

Appellant contends it was improper for the trial court to have admitted as evidence Lipnick's statements concerning the value of the stolen suits. The record shows, however, that any such references by Lipnick were stricken from the record. Consequently, no reversible error occurred if the evidence is not prejudicial. Kinsey v. State, 49 Ariz. 201, 65 P.2d 1141, 1144, 125 A.L.R. 3 (1937). Agnes Harris, the assistant comptroller of the department store, testified as to the specific retail value of the three stolen suits as being $119.95, $145.95 and $110.95, and the wholesale price as $65.75, $79.75 and $59.75. Therefore, Lipnick's testimony that the value of the suits totaled 'over $50.00' was not prejudicial; at most, it was cumulative. State v. Woolery, 93 Ariz. 76, 378 P.2d 751 (1963). The testimony of Harris was admissible for the purpose of ascertaining the fair market value of the stolen property in order to grade the offense, i. e., to establish grand larceny as distinguished from petty larceny. Fair market value does not depend solely on wholesale or cost price. Evidence of retail price of stolen goods is admissible to show the value of the goods. H. K. Porter Company v. Halperin, 297 F.2d 442 (7th Cir. 1961); People v. Williams, 169 Cal.App.2d 400, 337 P.2d 134 (1959); People v. Irrizari, 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69 (1959); 32 Am.Jur. 888. The wholesale and retail prices, established by experts if necessary, may fix the range within which the jury may find fair market value. People v. Lizarraga, 122 Cal.App.2d 436, 264 P.2d 953 (1954). But where the wholesale and retail prices are both sufficient to establish grand theft, it is immaterial whether the computation of market value is by reference to the one or the other. People v. McGill, 82 Cal.App. 98, 255 P. 261 (1927).

Appellant objected to the testimony of Larry Bossler on the grounds the County Attorney had failed to endorse Bossler's name on the information at least five days prior to trial. But this Court has held that failure to endorse the name of a witness on the information does not automatically disqualify the witness from testifying. State v. Bagby, 83 Ariz. 83, 316 P.2d 941 (1957); State v. King, 66 Ariz. 42, 182 P.2d 915 (1947). In the instant case appellant's counsel did not move for a continuance upon learning Bossler would be called as a witness. Moreover, appellant's counsel had adequate opportunity to cross-examine Bossler.

Appellant argues that reversible error occurred when thirteen lines of testimony were admitted during the trial without appellant being present. The trial court assumed that appellant had voluntarily absented herself and, therefore, ruled pursuant to Rule 231(B), Arizona Rules of Criminal Procedure, 17 A.R.S., that the trial court proceed. But even if this ruling had been arbitrary, proceeding with the trial without defendant present was not reversible error under the circumstances of this case. Appellant was absent not more than seven minutes. Most of this time was consumed by argument between the appellant's counsel and the trial judge. No evidence of retail prices of the suits was introduced at this time. The only evidence admitted during appellant's absence was testimony by Harris regarding the wholesale price of one of the stolen suits. Since even the wholesale prices of the other two suits exceeded $50.00, this evidence admitted during appellant's absence was not prejudicial. Although proceeding with the trial when the appellant was not present was not technically correct, it does not furnish sufficient basis for reversal under these circumstances. State v. Ransom, 62 Ariz. 1, 152 P.2d 621 (1944); United States v. Noble, 294 F. 689 (D.C.Mont.1923), aff. 300 F. 689 (9th Cir. 1924); State v. Colbert, 344 S.W.2d 115 (Mo.1961), cert. denied 369 U.S. 822, 82 S.Ct. 835, 7 L.Ed. 787.

Appellant next contends that reversible error was committed by the trial judge when he purportedly showed bias in favor of the State. We have examined the instances cited by appellant and find no showing of bias on the part of the trial judge. The trial judge merely attempted to confine the trial to...