J. J. TATE, Appellant,
THE STATE OF ARIZONA, Respondent
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.
Mr. V. L. Hash, for Appellant.
Mr. Joe Conway, Attorney General, Mr. Albert M. Garcia, Assistant Attorney General, Mr. Richard F. Harless, County Attorney, and Mr. Fred C. Struckmeyer, Jr., Deputy County Attorney, for Respondent.
[56 Ariz. 195] ROSS, C.J.
The appellant was informed against for the crime of obtaining money from another, with intent to cheat and defraud, by means of a false and bogus check, and from a judgment of conviction he has appealed. He lists the grounds of his appeal: (1) the refusal of the court to direct a verdict in his favor; (2) the giving of an erroneous instruction; and (3) the insufficiency of the verdict to support the judgment of conviction.
The evidence in support of the charge is overwhelming. It shows beyond any doubt that appellant committed the offense with which he is charged. The motion for an instructed verdict was properly denied.
The information was drawn under section 4790, Revised Code of 1928, which provides, among other things, that any person who, intent to cheat and defraud, shall obtain from another person any money by means of any false or bogus check shall be guilty of a felony. The information sufficiently charged the offense as described in the statute. The appellant contends, however, that the verdict, to be good, should be as broad and explicit as the information and that if it omits any of the elements of the crime it is bad. This contention, we apprehend, is correct under the law. The verdict is as follows:
"We, the jury,... do find the defendant guilty of obtaining money by means of a bogus check, a felony." It is seen the verdict omits, in terms, to find appellant obtained the money "with intent to cheat and defraud." Sec. 4790, supra. Whether that was necessary [56 Ariz. 196] depends upon the character of the verdict. If it be regarded as a special verdict, or a verdict
presenting "the conclusions of fact as established by the evidence," section 5085, Id., the ingredient of intent should have been found; but, if the verdict is a general one, it contains all the elements of the offense charged. In Holder v. State, 31 Ariz. 357, 253 P. 629, we held that under our laws a verdict like the one here is a general verdict and sufficient to support a judgment of conviction, overruling Kimball v. Territory, 13 Ariz. 310, 115 P. 70, upon which appellant relies. The reasons for so holding are fully set forth in the Holder case and will not be repeated, but we think they are sound and convincing.
The instruction, to which exception is taken, if viewed alone, in omitting the element of intent, is no doubt bad. It is as follows:
"You are further instructed that if from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant J. J. Tate did not have an account in the First National Bank of Arizona, at Phoenix, Arizona, or in any bank, then you are instructed you will find this defendant guilty...."
But this statement must be treated as only a small portion of the instructions. Immediately following it, the court said:
"On the other hand, gentlemen, the converse of that proposition is that if you do not find that the defendant committed the offense in manner and form as set out in the ...