State v. Valdez, Criminal 845

• Decision Date: 13 July 1936
• Docket Number: Criminal 845
• Citation: 48 Ariz. 145,59 P.2d 328
• Parties: STATE OF ARIZONA, Appellant, v. ERNEST VALDEZ, Respondent
• Court: Arizona Supreme Court

59 P.2d 328

48 Ariz. 145

STATE OF ARIZONA, Appellant, v. ERNEST VALDEZ, Respondent

Criminal No. 845

Supreme Court of Arizona

July 13, 1936

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Motion to dismiss appeal. Appeal dismissed.

Mr John L. Sullivan, Attorney General, and Mr. W. Francis Wilson, Assistant Attorney General, for Appellant.

Mr John A. McGuire, for Respondent.

OPINION

LOCKWOOD, C.J.

Ernest Valdez was convicted in the superior court of Yavapai county of the crime of burglary, and was sentenced to serve not less than three nor more than five years in the state prison. The state, believing that this sentence was erroneous, has attempted to appeal from the judgment pronounced on the verdict of guilty.

After the appeal was taken, defendant moved to dismiss in on the ground that no right of appeal is granted the state under circumstances of this kind. Ordinarily, we do not write opinions on motions, but, in view of the importance of the question involved, we have departed from our usual custom and state the law for the future guidance of the trial courts and prosecuting officers of the state.

The charging part of the information upon which defendant was tried and convicted reads as follows:

"That at the county of Yavapai, state of Arizona, in the night time of the 14th day of Dec. A.D. 1935, and prior to the filing of this information, the said Ernest Valdez did then and there wilfully, wrongfully, unlawfully, feloniously and burglariously, enter the H. & H. Garage of John Sells on Hill Avenue, in the town of Jerome, Yavapai county, Arizona, at or about the hour of 11:45 P.M. on the said night of the 14th day of December, 1935, with the intent then and there to commit the crime of larceny.

"Contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the state of Arizona. It is further alleged that the defendant, before the commission of the offense charged in this information, was, in the Superior Court of Imperial County, State of California, on the 13th day of September, 1926, convicted of the crime of felony, to-wit: burglary in the second degree."

It is the position of the state that, upon conviction on an information of this nature, the minimum penalty is imprisonment in the state prison for a term of not less than ten years, and that the judgment of the superior court sentencing him to imprisonment for a term of not less than three nor more than five years is void.

Sections 4898 and 4899, Revised Code of 1928, read as follows:

"§ 4898. Defendant Previously Convicted, Increased Punishment. Every person who, having been convicted of petit larceny or any offense punishable by imprisonment in the state prison, commits any crime after such conviction, is punishable therefor, as follows: If the offense of which such person is subsequently convicted is such that, upon a first conviction, and offender would be punishable by imprisonment in the state prison for any term exceeding five years, such person is punishable by imprisonment in the state prison not less than ten years; if the subsequent offense is such that, upon a first conviction, the offender would be punishable by imprisonment in the state prison for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding ten years; if the subsequent conviction is for petit larceny, or any attempt to commit an offense which, if committed, would be punishable by imprisonment in the state prison not exceeding five years, then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding five years. The punishments herein prescribed must be substituted for those prescribed for a first offense if the previous conviction is charged in the indictment or information and found by the jury."

"§ 4899. Previous Conviction in Another State. Every person who has been convicted in any court outside of this state, of an offense which, if committed within this state would be punishable by the laws of this state by imprisonment in the state prison, is punishable for any subsequent crime, committed within this state in the manner prescribed in the preceding section, and to the same extent as if such first conviction had taken place in a court of this state."

The record in this case shows that, when the defendant was arraigned, he entered a plea of guilty as charged in the information of being convicted in the superior court of Imperial county, California, of the crime of burglary in the second degree, and a plea of not guilty of the particular offense for which he was about to be tried, to wit, burglary in the first degree. The jury, therefore, had but one issue submitted to it upon the information, and that was whether defendant was guilty of burglary in the first degree, as charged in the information, and they determined that issue in favor of the state by the following verdict:

"We the jury, duly empaneled and sworn in the above...