State v. Tigue, 1300
| Decision Date | 30 October 1963 |
| Docket Number | No. 1300,1300 |
| Citation | 386 P.2d 402,95 Ariz. 45 |
| Parties | STATE of Arizona, Appellee, v. Donald P. TIGUE and Herman Schipper, Appellants. |
| Court | Arizona Supreme Court |
Connors & Corbin, by Stephen W. Connors, Phoenix, for appellants.
Robert W. Pickrell, Atty. Gen., Merton E. Marks, Asst. Atty. Gen., and Charles N. Ronan, County Atty., for appellee.
Appellants, defendants in a criminal action, were convicted of burglary in the nighttime and burglary by mechanical means.
Defendants were drving on South Central Avenue in Phoenix on the morning of April 13, 1962. Police stopped their car about 3:30 A.M. because one headlight was out. Recognizing the occupants and smelling alcohol on the driver, the officer asked defendant Tigue to step out of the car. His eyes appeared 'watery and bloodshot.' Upon the arrival of a second officer, Tigue's companion, defendant Schipper, also got out of the car. His eyes were 'rolling in his head and speech slightly slurred.' Tigue was cited for driving without a license, and was told he would have to submit to a drunkometer test. One of the officers proceeded to search him. He was carrying money in one pocket of the fatigue jacket he was wearing, and in both front pockets of his levis. Seventy-three dollars were counted, of which $48 were in currency; the remainder was in coin and included a roll of nickles and a roll of quarters.
While this investigation was underway, a patrolman stopped to inform the officers that a drugstore directly across the street had been burglarized. Entry had apparently been gained by smashing a drive-in prescription window. Some $180 including several Canadian coins and some rolls of silver had been taken from two cash registers. A bottle of 900 Nembutal capsules was also missing. There was evidence that an unsuccessful attempt had been made to pry the safe open with some instrument. There were three large pry marks, approximately 3/4"' wide, along the door of the safe and the tin cover had been pried up about 2"'.
Although the record is silent as to the precise moment when Schipper was arrested, the officers testified that he was taken into custody for vagrancy, under what the officers referred to as the 'vag addict' law. The statute provides, A.R.S. § 36-1062(A):
'Any person who habitually uses narcotic drugs, or is found to be under the influence of such drugs, * * * shall be guilty of a misdemeanor * * *.'
Schipper, too, was searched and $24 found on his person, all but $3 of which was in coin, including a roll of dimes. There was a fresh cut on his wrist. The car was then searched and an additional $11.70 discovered in the glove compartment, including Mexican and Canadian coins. One Nembutal capsule was found on the floor of the car.
Defendants contend on appeal that it was error to deny their motion for a new trial because the jury was not instructed on the probative value of circumstantial evidence. With this contention we agree. The evidence here was solely circumstantial. The money found in the defendants' possession fit the description given by the owner of the burglarized store, particularly the rolls of silver and the foreign coins. But none of the monies could be positively identified. The store owner testified that he left approximately $90 in each cash register, but that he could not say how much was in currency and how much in silver, nor the number of rolls there were, nor the number of foreign coins. The coins, including the rolls of silver and the Mexican and Canadians coins, the presence of one Nembutal capsule out of 900 missing, and the cut on Schipper's wrist, are all circumstantial evidence which, taken with the other evidence could point to the guilt of the defendants and can be considered by the jury under proper instructions.
This court has held that to warrant a conviction solely on circumstantial evidence, the evidence must be not only consistent with guilt, but inconsistent with every reasonable hypothesis of innocence. State v. Andrade, 83 Ariz. 356, 321 P.2d 1021. Moreover, the jury must be so instructed. In State v. Cox, 93 Ariz. 73, 75, 378 P.2d 750, 751, we said:
The State points out that in Cox an appropriate instruction was offered by the defense while in the instant case none whatever was offered. We said in State v. Daymus, 90 Ariz. 294, 306, 367 P.2d 647, 655:
'The weight of authority is that the court on its own motion is under a duty...
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State v. Winters
...a question identical to that in J.G. did not prevent a subsequent consent to search from being consensual and voluntary. State v. Tigue, 95 Ariz. 45, 386 P.2d 402, 405 (1963), overruled on other grounds by State v. Harvill, 106 Ariz. 386, 476 P.2d 841, 846 (1970).17 Shortly after the questi......
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State v. McCormick, 2
...must not only be consistent with guilt, but inconsistent with every reasonable hypothesis of innocence. State v. Tigue, 95 Airz. 45, 47, 386 P.2d 402.' (Emphasis supplied) 99 Ariz. at 3, 405 P.2d at The rule of Bearden has been recently reaffirmed in State v. Green, 103 Ariz. 211, 439 P.2d ......
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...51, R.Civ.P., 16 A.R.S. An exception pertains only when the failure to give an instruction creates fundamental error. State v. Tigue, 95 Ariz. 45, 386 P.2d 402 (1963). Our Supreme Court has on three occasions held that the failure to give this particular limiting instruction is not fundamen......