Thomas v. Territory of Arizona

• Decision Date: 22 March 1907
• Docket Number: Criminal 240
• Citation: Thomas v. Territory of Arizona, 89 P. 591, 11 Ariz. 184 (Ariz. 1907)
• Parties: WILLIAM THOMAS, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Arizona Supreme Court

89 P. 591

11 Ariz. 184

WILLIAM THOMAS, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 240

Supreme Court of Arizona

March 22, 1907

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. R. E. Sloan Judge. Affirmed.

Robert E. Morrison, for Appellant.

E. S Clark, Attorney General, for the Territory.

OPINION

KENT, C.J.

-- The indictment in this case charged the defendant, William Thomas, as contractor having charge of the county hospital and poor farm of Yavapai county, with presenting for allowance a false and fraudulent claim contained in a certain quarterly account made by the defendant for the care of the indigent sick of the county. The indictment set forth in full the quarterly account, containing many items covering the charges for the care of different persons, including the alleged fraudulent claim, and specifically charged that the account and claim was false and fraudulent in that it made a false charge for care and treatment of one Dorami. At the trial, the court allowed, over the objection of the defendant, testimony tending to show that certain charges set forth in the said account for the care of two persons other than Dorami, to wit, one Garner and one Headt were likewise false and fraudulent, and the admission of this testimony is assigned as error. It is not contended by the appellant that, as a general principle of law, evidence of fraudulent acts similar to the act set forth in the indictment is not admissible as showing the intent and motive, but it is contended that, as the pleader has here set forth in the indictment all the items in the quarterly account, including the items for care of Dorami, Garner, and Headt, and has specifically charged that the Dorami items were fraudulent, and has omitted to charge that the Garner and Headt items were fraudulent, he is precluded from giving testimony as to the falsity of any item except the Dorami item. In support of his contention, counsel cites the case of McDonald v. People, 126 Ill. 150, 9 Am. St. Rep. 547, 18 N.E. 817. There the indictment charged the conspirators with an attempt to defraud Cook county by means of false statements as to work and material furnished for a normal school. On application, the court made an order requiring the state's attorney to file a bill of particulars, containing the date and number of all the fraudulent bills and vouchers relied upon by the state to secure a conviction. At the trial the prosecution was permitted to introduce evidence regarding fraudulent bills and vouchers not set forth in such bill of particulars. The supreme court of Illinois held this to be error, for the reason that, the state having given the bill of particulars, the prosecution could not go outside of it. The appellant's claim here is that, inasmuch as the account is set forth in the indictment in full, and the only specific item alleged to be fraudulent is the Dorami item, the pleader has in effect given the defendant a bill of particulars in which the Dorami item is the only one complained of, and hence the prosecution may not go outside of that.

The indictment in the case before us does not charge the defendant with presenting a false account, but with presenting a certain false and fraudulent claim in an account, which account is set forth in full in the indictment. If the pleader had merely referred to the account by proper designation, without setting the same forth in full, there can be no doubt, and, indeed, it is conceded by the appellant, that proof of other fraudulent items in such account might have properly been introduced as bearing upon the intent or good faith of the defendant. Qualey v. Territory, 8 Ariz. 45, 68 P. 546; Wood v. United States, 41 U.S. 342, 10 L.Ed. 987; 1 Wigmore on Evidence, par. 300 et seq. We perceive no reason why a different rule should obtain, merely because the pleader has set the account forth in full in the indictment; nor do we think the case is similar to the Illinois case cited, where the prosecution by order was required to set forth all the items on which it relied to secure a conviction. We think the testimony as to the fraudulent character of the items of the account was properly admissible as bearing upon the intent and good faith of the defendant, and that the trial court committed no error in receiving the same.

It appears, from a stipulation in the case, that, upon the impaneling of the grand jury that found the indictment, a sufficient number of jurors not appearing, the court, in directing the sheriff to summon additional jurors, neglected to include in the order the requirement of paragraph 2808 of the Revised Statutes of 1901, as amended by Laws 1905, page 28, chapter 24, that such persons summoned as jurors should not be persons who had served as jurors upon the regular list within the previous twelve months. The defendant, not having been held to answer before the finding of the indictment upon arraignment moved to set aside the indictment for failure of the court to include in its order for a special venire the provision referred to, and the denial of this motion is assigned as error. The objection is not one that can be raised under our code,...