State v. Stephens, 976
Decision Date | 10 November 1947 |
Docket Number | 976 |
Citation | 66 Ariz. 219,186 P.2d 346 |
Parties | STATE v. STEPHENS et al |
Court | Arizona Supreme Court |
Appeal from Superior Court, Pima County; Lee Garrett, Judge.
J. W Stephens, J. W. Stephens, Jr., and Leon Stephens were convicted of robbery, and they appeal.
Affirmed.
James M. Corbett, of Tucson, for appellants.
John L Sullivan, Atty. Gen., and William P. Mahoney, Jr., Asst Atty. Gen., for appellee.
OPINION
La Prade, Justice.
Defendants, J. W. Stephens, Sr., and his two sons, J. W. Stephens, Jr., and Leon Stephens, were convicted of the crime of robbery. From the judgment and order of the trial court denying them a new trial they have perfected this appeal. They have made numerous assignments of error, three of which we believe to be worthy of consideration. Their first assignment of error is that the verdict and resulting judgment are contrary to law. A kindred assignment is that the verdict is contrary to the weight of the evidence. Their third assignment complains of claimed prejudicial remarks of the deputy county attorney in his argument to the jury.
The evidence discloses a rather strange situation. To attempt to fathom the intentions of defendants by applying rules of common horse sense to their conduct leads the orderly mind into stray paths. Before we consider the evidence we believe it advisable to have before us the statutory definition of robbery. Section 43-5101 of our code reads as follows:
With this definition of the crime before us we will make an extended investigation into the fact situation developed on the trial.
At about 9:30 p. m. on December 11, 1946, the complaining witness, a young man by the name of William R. Gregg, left his brother's home on the outskirts of Tucson and walked to Prince Road where he intended to catch a bus to Tucson. Having missed the bus, he started to walk down the road, at which time defendants approached him in their car. He hailed them, "thumbing" to indicate that he would like to ride. The car stopped some feet beyond him; he approached and entered, seating himself in the rear seat of the four-door, two-seat sedan. It later developed that the car was driven by J. W. Stephens, Sr.; J. W. Stephens, Jr., was sitting in the middle; and Leon Stephens to the right of him. J. W. Stephens, Sr., observed that he never failed to pick up a hitchhiker and began a conversation about highjacking. In this regard he addressed the two boys, saying that if they highjacked him they wouldn't receive much as he had only thirty-five cents. At this point we will let the story unfold through the testimony of the complaining witness Gregg:
When the car stopped the complaining witness noticed that the father also was alighting from the car, whereupon the complaining witness asked him if he knew who the boys were, to which inquiry the father said, "No," nor could he remember the license number of his car. Gregg and the father went to a telephone and called the police. Gregg reported to the police substantially the foregoing testimony. The father then took the phone, at the request of the police officer, and reported the robbery. Gregg testified further that in view of what had transpired he was afraid of being molested, and that he tendered his twelve dollars because he was in a state of fear and thought it might make it possible for him to get out of the car; that from what was said and done he was afraid for the driver of the car; that at the time he (Gregg) alighted from the car, J. W., Jr., told him to walk to the rear of the car; that J. W., Sr., at the time Leon jabbed him in the ribs, demanding cigarettes, told him to put it away (Gregg thinking he was referring to a gun). The witness testified:
Gregg testified that he handed the twelve dollars to J. W., Jr.; that J. W., Sr., offered his money to the boys; that when Gregg asked to leave the car one of the boys said to him, "We will let you know when we want you to get out."
With reference to the demand made on him for money by the boys, J. W., Sr., testified as follows:
With reference to taking the car the father on cross examination testified as follows:
Mr. Stephens, Sr., on cross examination was asked if he hadn't told the officers that he was unable to describe the two fellows who had taken his automobile. He denied that such a question had been put to him or that he had made that answer. In explanation he testified:
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