State v. Thomas

• Decision Date: 04 October 1973
• Docket Number: No. 2508,2508
• Citation: 514 P.2d 1023,110 Ariz. 27
• Parties: STATE of Arizona, Appellee, v. Carl Anthony THOMAS, Appellant.
• Court: Arizona Supreme Court

Page 1023

514 P.2d 1023

110 Ariz. 27

STATE of Arizona, Appellee, v.Carl Anthony THOMAS, Appellant.

No. 2508.

Supreme Court of Arizona, In Banc.

Oct. 4, 1973.

Gary K. Nelson, Atty. Gen., Peter Van Orman, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, Roger H. Lichty, Deputy Public Defender, Phoenix, for appellant.

LOCKWOOD, Justice:

Carl Anthony Thomas was charged on July 8, 1970 by information #63457 in Superior Court with one count of burglary, first degree, in violation of A.R.S. §§ 13--301,13--302, and§§ 13--138,13--139, and13--140.Count two charged the defendant with theft of a motorcycle in violation of § 13--672and§§ 13--138,13--139, and13--140.

On October 14, 1971 an indictment #70034 was returned by the Maricopa County Grand Jury charging the defendant with grand theft of a 'Twister' tote gote in violation of A.R.S. §§ 13--661, subsec.A, 13--671, and 13--663, subsec.A.

The defendant was arraigned on July 16, 1970 in cause #63457 to which he entered a plea of not guilty.On October 20, 1971he was arraigned in cause #70034, and again entered a plea of not guilty.By stipulation of counsel causes 63457 and 70034 were consolidated into one matter for trial.

Defense counsel moved the trial court to quash the indictment in cause #70034 on the grounds that it was in part founded upon improper and prejudicial evidence, that the Grand Jury did not properly direct the County Attorney to prepare the indictment, and that the indictment improperly charged the defendant with grand theft.The court denied the defense motion to quash.The trial in this matter commenced on November 29, 1971.

At the close of the state's case the defense counsel moved again to quash the indictment which motion was denied.The court also denied defendant's motion for a directed verdict.

The jury returned a verdict of guilty.The court sentenced the defendant to serve not less than ten years nor more than twenty years for the crime of Grand Theft in Cause #70034.In Cause #63457 defendant was sentenced to a term of not less than ten nor more than twenty years for First Degree Burglary and not less than nine nor more than ten years for Grand Theft of a Motorcycle.The court ordered that the sentences were to be served concurrently.

Three questions are presented: (1) Did the trial court err in denying defense counsel's motion to quash the indictment in cause #70034 for the reason that defendant was improperly charged with grand theft instead of theft of a motorcycle?(2) Did the County Attorney fail to establish a sufficient foundation to impeach Mr. Dunn's testimony with prior inconsistent statements made to the witness Hasenmueller?(3) Did the evidence submitted to the grand jury in cause #70034 result in a deprivation of due process of law under the Fourteenth Amendment to the United States Constitution for the reason that the evidence presented to the grand jury was not presented in a fair and impartial manner?

The answer to the first question depends upon whether a 'tote gote' is a 'motorcycle' within the meaning of A.R.S. § 13--672. A.R.S. § 28--122 defines 'motorcycle' as '* * * a motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor'.

Webster's 3d International Dictionary defines 'motorcycle' as 'a two wheeled tandem automotive vehicle having one or two riding saddles and sometimes having a third wheel for the support of a side car.'

We believe a tote gote is a...