State v. Wilson

• Decision Date: 25 April 1978
• Docket Number: No. 1,CA-CR,1
• Citation: 120 Ariz. 72,584 P.2d 53
• Parties: STATE of Arizona, Appellee, v. Emmeric A. WILSON, Appellant. 2665.
• Court: Arizona Court of Appeals

Page 53

584 P.2d 53

120 Ariz. 72

STATE of Arizona, Appellee, v. Emmeric A. WILSON, Appellant.

No. 1 CA-CR 2665.

Court of Appeals of Arizona, Division 1, Department C.

April 25, 1978.

Rehearing Denied July 28, 1978.

Review Denied Sept. 12, 1978.

Bruce E. Babbitt, former Atty. Gen., John A. LaSota, Jr., Atty. Gen., by William J. Schafer, III, Chief Counsel, Crim. Div., Crane McClennen, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, by Joel M. Glynn, Deputy Public Defender, Phoenix, for appellant.

OPINION

WREN, Judge.

Appellant was charged with attempted theft from a person in violation of A.R.S. §§ 13-661 and 13-663, and A.R.S. §§ 13-108, 13-109 and 13-110. He later executed a waiver of trial by jury, and on January 7, 1977, the trial court found him guilty of the offense charged. He now appeals from the judgment of guilt and sentence imposed thereon.

The sole issue on this appeal is whether there was sufficient evidence to sustain the conviction. Accordingly we will set forth a summary of the testimony presented. The State's chief witness was the investigating officer, Manuel M. Gonzales. Gonzales' testimony revealed that at approximately 7:00 p. m. on August 14, 1976, he was proceeding in his patrol car on Central Avenue in Phoenix, Arizona, when he observed the victim walking northbound on the sidewalk. Ahead of the victim were two men, one being the appellant. According to the officer, as the two men approached the victim, appellant reached for a handbag the victim was carrying. The officer further testified that the victim and appellant had joint contact with the handbag for approximately ten to fifteen seconds, and that thereafter, as the patrol car approached, appellant released the handbag, and proceeded to walk south on Central Avenue at a normal pace. The officer then exited his patrol car, spoke with the victim briefly, returned to the car, made a U-turn on Central Avenue, and proceeded south to the front of a liquor store where he apprehended appellant.

Appellant took the witness stand in his own behalf and testified that he and a friend had been drinking and playing basketball on the day in question. They were walking south on Central on their way to a liquor store when they picked up several rocks and began throwing them. During the walk, they observed the victim and noticed he looked "like a little bum, or raggedy." Appellant testified that he was merely joking with the victim, that he did not intend to take the bag but merely wanted to throw a rock into it. He stated "it didn't look like (he) had a solid penny. Those were one of the reasons I was thinking about giving him the rock. At least he'd have something."

The victim in the case apparently had a hearing difficulty thus written questions were propounded to him which he answered in writing. One of the questions asked was whether he had found a rock in his bag after the incident, but he failed to answer that question. He was then asked whether he had looked in the bag, and he responded that he had not. The officer, however, testified that at the time he questioned the victim, he put his hand inside the bag and did not notice a rock, but he did not empty its contents to determine what it contained. At the time appellant was arrested, he had a rock in his pocket.

Appellant, relying on State v. Vitale, 23 Ariz.App. 37, 530 P.2d 394 (1975), contends the evidence was insufficient to support the verdict, urging that the crime of Attempt requires proof of an overt act And a specific intent, and that the specific intent must be proven by evidence other than the overt act itself. He asserts that the only proof of any intent to steal property from the victim was the overt act of grabbing his handbag. Accordingly, he submits, there being no probative evidence other than the overt act itself to support the conviction of attempted theft from a person, the conviction must be reversed.

The State argues, on the other hand, that under State v. Rodriguez, 114 Ariz. 331, 560 P.2d 1238 (1977), the requisite intent and the overt act can be shown by the same evidence and that the intent to do an act may be inferred or presumed from the circumstances of the doing of the act itself. It is the State's position that State v. Vitale, which is bottomed on Elfbrandt v. Russell, 97 Ariz. 140, 397 P.2d 944 (1964), incorrectly states the law. It points out that Rodriguez expressly refused to follow the rationale of People v. Snyder, 15 Cal.2d 706, 104 P.2d 639 (1940), which was the authority cited for the ruling in Elfbrandt.

In attempting to resolve the confusion generated by these cases, we first note that Rodriguez is clearly distinguishable from the case before us. The appellant Rodriguez was convicted of second degree burglary. Thus in Rodriguez the crime went beyond a mere attempt. Moreover, the Arizona Supreme Court in Rodriguez distinguished Snyder on the basis that Snyder dealt with Attempted murder. Therefore, in Snyder, "the issue was whether the defendant had the specific intent to commit murder. The defendant had not actually killed the victim, so that became an important element to be proved." 114 Ariz. at 333, 560 P.2d at 1240.

While the State is correct in asserting, as noted in Rodriguez, that generally a specific intent to do an act may be inferred or presumed from the circumstances of the doing of the act itself, the case law noted by appellant appears to reject that concept as to overt acts and charges of attempted crimes. These deviations, it seems to us, appear to arise from the Nature of the completed crime toward which the attempt has been directed and not by the fact that only an attempt to commit that crime has been charged.

In State v. Vitale, a decision by Division 2 of this Court, the bold statement was made that "the crime of attempt requires proof of an overt act and specific intent, which must be proven by evidence other than the overt act itself." 23 Ariz.App. at 44, 530 P.2d at 401. Vitale should not, however, in our opinion, be blindly followed as an abstract principle of law. Obviously the word "attempt" means to try; it implies an effort to bring about a desired result. See Webster's Third New International Dictionary, 140 (1966). Hence an attempt to commit any crime requires an intent to commit that particular offense. While there can be no attempt to commit a crime without such specific intent, it must be borne in mind that the law attaches its own labels to intents the same as it does to results. If the required intent is actually lacking it cannot be supplied by any mere jingle of words such as that a man is presumed to intend the natural and probable consequences of his act. The intent cannot be implied as a matter of law; it must be proven as a matter of fact from the acts involved.

Obviously there are times when intent may be inferred from conduct where it is plainly indicated...