Stewart v. State

• Citation: 27 Ariz. 240,232 P. 556
• Decision Date: 24 January 1925
• Docket Number: Criminal 605
• Parties: FRANK STEWART, Appellant, v. STATE, Respondent
• Court: Supreme Court of Arizona

232 P. 556

27 Ariz. 240

FRANK STEWART, Appellant, v. STATE, Respondent

Criminal No. 605

Supreme Court of Arizona

January 24, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.

Mr Herman Lewkowitz, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. A. R. Lynch, Mr Earl Anderson and Mr. E. W. McFarland, Assistant Attorneys General, for the State.

OPINION

McALISTER, C. J.

This is an appeal by Frank Stewart from a conviction for burglary in the second degree, and an order denying him a new trial. Following the title of the court and cause the information reads as follows:

"In the name and by the authority of the state of Arizona, Cooper Gibbs and Frank Stewart are accused this 7th day of February, 1924, by the county attorney of Maricopa county, state of Arizona, by this information, of the crime of burglary, to wit, a felony, committed as follows, to wit The said Cooper Gibbs and Frank Stewart on or about the 30th day of December, 1923, and before the filing of this information, at and in the county of Maricopa, state of Arizona, did then and there willfully, unlawfully, feloniously, and burglariously enter that certain Pullman sleeping car known as and called Suisun there situate, with the intent then, there and therein to commit the crime of larceny -- contrary to the form," etc.

The first assignment is that the information fails to state facts sufficient to constitute a public offense in this: "That the ownership or possession of the property upon which the burglary is alleged to have been committed is not set forth in the information." This contention is raised for the first time on appeal. No demurrer to the information was interposed, nor was there any objection to the introduction of testimony upon the ground that a public offense was not stated. A motion in arrest of judgment based upon this and other grounds, was filed and overruled, but the action of the court in this respect is not assigned as error. If the statute requires that an information for burglary allege who was the owner of the property or entitled to its possession at the time it was burglarized before it can be held to state a public offense, the fact that such an allegation does not appear would constitute fundamental error which could be raised first in the appellate court, because it would not be waived by a failure to demur as would a mere formal defect. "Mere formal defects in an indictment, information, or complaint, which were not called to the attention of the lower court," says 17 C.J. 53, "cannot be urged for the first time on appeal. But, as a rule, fatal defects which are not amendable may be considered for the first time on appeal." Under the provisions of section 459, Penal Code of 1913, defining the crime of burglary, the failure of the information to allege the ownership of the Pullman sleeping-car, Suisun, did not constitute error, certainly not error so fundamental and fatal that it could be raised first in this court. The reference in the information to this car identified it as the property burglarized, and sufficiently apprised appellant of the car he was accused of having burglariously entered. Nothing more was required since there was no proof that on December 30, 1923, there was more than one Pullman sleeping-car called Suisun in Maricopa county, Arizona. In construing the burglary statute of California from which section 459, supra, was evidently taken, the Supreme Court of that state said in People v. Mendoza, 17 Cal.App. 157, 118 P. 964:

"The ownership of the building was immaterial, except for the purpose of affording a means of its identification. This was done by alleging it to be a tool house located at Lemoyne street and Marcom avenue in the city of Los Angeles. In the absence of proof that there was more than one such building so located, such description was sufficient, and fully apprised defendant of the house he was charged with feloniously entering; hence, the allegation of ownership was surplusage. People v. Price, 143 Cal. 352, 77 P. 73; People v. Bitancourt, 74 Cal. 190, 15 P. 744; People v. White, 116 Cal. 17, 47 P. 771."

Several other states have statutes similar to California's, and they have each reached a like conclusion. State v. Wilson, 36 S.D. 416, 155 N.W. 186; State v. Mish, 36 Mont. 168, 122 Am. St. Rep. 343, 92 P. 459; State v. Wright, 19 Or. 258, 24 P. 229.

Section 940 of the Penal Code of Arizona provides:

"When an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material."

This provision applies as much to burglary as to larceny or any other criminal offense, and under it the name of the owner of the property burglarized is immaterial unless it be necessary for purposes of identification. Such being true, it was not required that the ownership or possession of this sleeping-car in the Pullman Company be alleged in order that it should appear that it was not the property of appellant. Ownership, however, sufficiently appears by the term "Pullman sleeping-car," which implies that it is the property of the Pullman Company. But if it be admitted that a person could not be guilty of burglarizing his own property not occupied by someone else, "it does not follow from this," says the court in People v Price, 143 Cal. 351, 77 P. 73, "that the defendant must be informed in the complaint or information that the house in question is not his, or that it belongs to another. If the house is described...