Valdez v. State

• Decision Date: 23 February 1937
• Docket Number: Criminal 853
• Citation: 49 Ariz. 115,65 P.2d 29
• Parties: ERNEST VALDEZ, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

65 P.2d 29

49 Ariz. 115

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

Criminal No. 853

Supreme Court of Arizona

February 23, 1937

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Mr John A. McGuire, for Appellant.

Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Respondent.

OPINION

LOCKWOOD, J.

This is an appeal by Ernest Valdez, hereinafter called plaintiff from a verdict and judgment in the superior court of Yavapai county, finding him guilty of burglary and sentencing him to imprisonment in the penitentiary. The case has been before us once previously, State v. Valdez, 48 Ariz 145, 59 P.2d 328, on an appeal by the state. We dismissed this appeal and remanded the case for further proceedings, as will appear by the opinion in that case. The trial court, in accordance with our views expressed therein, resentenced the defendant, and he has in turn appealed. Many of the questions raised by this appeal were, in effect, determined by us in State v. Valdez, supra, but there are a few questions which require consideration. The facts of the case appear to be as follows:

Defendant was arrested on December 16, 1935, and taken before the police magistrate in Jerome on the following day. An ordinary complaint charging him with burglary was filed, which contained no reference to any previous conviction. He waived a preliminary hearing, and was bound over to the superior court, the commitment being as follows:

"It appearing to me that the crime of felony, to wit: burglary has been committed on or about the 14th day of December, 1935, at the Town of Jerome, County of Yavapai, State of Arizona, and that there is sufficient cause to believe the defendant Ernest Valdez, guilty thereof, I order that he be held to answer the same."

Thereafter an information was filed by the county attorney, the charging part of which 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. and 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."

The defendant was tried on this information before a jury, and during the course of the trial he was asked while on the stand,

"Q. Now, Mr. Valdez, I will ask you if it is or is not a fact that in the Superior Court of the State of California in and for the County of Imperial on the 17th day of September, 1926, you were convicted of the crime of burglary in the second degree?" to which he answered, "Yes sir."

The jury returned a verdict finding the defendant guilty of burglary in the first degree, and he was sentenced to serve from three to five years in the penitentiary.

It was the contention of the state that this sentence was void under sections 4898 and 4899, Revised Code of 1928, as being less than the minimum required by the sections, and its appeal was based on this theory. These sections 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, an 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 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."

We held that the state was correct in its contention, but that appeal was not the proper method of enforcing the law, but rather an application to the lower court to render a proper judgment and sentence, and the case was remanded for that purpose. Thereafter the court sentenced the defendant to serve not less than ten nor more than twelve years in the penitentiary, and...