Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Russell Figueroa Moreno was convicted of burglary, and he appeals.
Leonard S. Sharman, of Phoenix, for appellant.
John L. Sullivan, Atty. Gen., Maurice Barth, Asst. Atty. Gen., and Edwin Beauchamp, Co. Atty., and R. H. Renaud, Deputy Co. Atty., both of Phoenix, for appellee.
Stanford, Chief Justice. La Prade and Morgan, JJ., concur.
Stanford, Chief Justice.
[64 Ariz. 227] Defendant was found guilty in the superior court of the crime of burglary. A motion in arrest of judgment was filed by the defendant and later a motion for new trial, both of which were overruled and from which the defendant appeals to this court.
The information is designated "Information for burglary, a felony," and in the body of the information it is stated that the defendant "did then and there in the night-time enter that certain building known as Nick's Cafe, situated at 7th and Washington Streets in the City of Phoenix, County of Maricopa, State of Arizona, with the intent then and there and therein to commit the crime of theft; * * *"
Section 43-901, A.C.A.1939, is as follows:
"Burglary defined -- Degrees -- Punishment. -- Every person who enters any building, dwelling-house, office, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, garage, tent, vessel, or railroad car with intent to commit grand or petit larceny or any felony; and every person who enters any outhouse or other building not above enumerated, with intent to commit any felony, is guilty of burglary. Burglary committed in the night-time is burglary of the first degree, and burglary committed in the daytime is burglary of the second degree."
By assignments of error defendant claims that: (1) The information charging the defendant did not inform him of the nature of the accusation nor contain a statement in ordinary and concise language setting forth the elements of the offense charged. (2) That the information filed did not advise defendant as to the ownership or occupancy of the building alleged to have been burglarized.
The essential thing for determination in this case is whether the information is sufficient to advise defendant of the crime charged.
It is defendant's contention that the word "theft" as referred to in the information [64 Ariz. 228] is so uncertain as to its meaning under the charge of burglary that the information is thereby made vague, indistinct, indefinite and confusing.
Defendant quotes from the case of Kinksbury v. State,28 Ariz. 86, 235 P. 140; Earp v. State,20 Ariz. 569, 184 P. 942; Rodriquez v. Territory,14 Ariz. 166, 125 P. 878; Williams v. State,12 Tex.App. 395, and many other cases. We find on investigation of the Arizona cases that all of the opinions were rendered prior to the adoption of our rules and enactment of same into the law of our state in 1940. ...