Appeal from Superior Court, Pima County; John D. Lyons, Judge.
Gee Chee was convicted of receiving stolen property, and he appeals.
Modified and affirmed.
Glenn Ginn, of Tucson, for appellant.
John L. Sullivan, Atty. Gen., and William P. Mahoney, Jr., Asst. Atty. Gen., for appellee.
LaPrade, Judge. Stanford, C. J., and Udall, J., concurring.
Appellant was informed against for the crime of receiving stolen property, a felony, in violation of the provisions of Section [65 Ariz. 148] 43-5506, A.C.A.1939. To the charge he entered a plea of guilty, judgment on the charge and plea was entered, and defendant was sentenced to imprisonment in the Arizona State Prison "for a term of not less than 2 years and not more than 3 years, to date from December 10 A.D. 1945, * * *." Defendant promptly gave notice of appeal on the ground that the sentence was excessive. By the authority of Section 44-2506, subsection (b), A.C.A.1939, an appeal may be taken by the defendant from "A sentence, on the ground that it is illegal or excessive." Application for a certificate of probable cause for modifying the sentence on the ground that it was excessive was presented to the trial court under the authority of Section 44-2517 (Id.). The application was granted and the certificate signed. The effect of the issuance of the certificate was to stay the execution of the sentence. Section 44-2516 (Id.). By Section 43-5506 (Id.), a person knowingly receiving stolen property is guilty of a felony where the property is of the value of $ 50 or more. No fixed term of imprisonment is prescribed for the offense. By the rule stated in Section 43-110 (Id.), "Except when a different punishment is prescribed by this Code, every offense declared to be a felony is punishable by imprisonment in the state prison not exceeding five (5) years, * * *."
By the provisions of Section 44-2233 (Id.), the court, having determined upon imprisonment as the penalty, was required to pronounce an indeterminate sentence of imprisonment in the state prison, stating in such sentence the minimum and maximum limitations thereof, fixing as the minimum a term not less than the minimum prescribed for the punishment of such offense, and as a maximum not more than the maximum time prescribed as the penalty. Within the limitations of the statute the penalty fixed was entirely within the sound discretion of the trial judge. Indian Fred v. State, 36 Ariz. 48, 282 P. 930.
"Where the court has discretion as to the penalty to be inflicted on the defendant it shall upon the suggestion of either party that there are circumstances which may properly be taken into consideration, hear evidence as to the same summarily in open court, either immediately or at a special time and upon such notice to the adverse
party as the court may direct; or the court may inquire into such circumstances of its own motion." Section 44-2222, A.C.A.1939. See interpretation in State v. Levice, 59 Ariz. 472, 130 P.2d 53.
According to the statement of facts on conviction, prepared by the county attorney and certified to by the judge, the following facts and circumstances were presented to and considered by the trial judge prior to passing sentence:
"That the defendant, Gee Chee, was accused of the crime of kidnapping in the County of Pima, State of Arizona, in 1939; that on August 22, 1939, in the United [65 Ariz. 149] States District Court, Tucson, Arizona, the said defendant Gee Chee was sentenced to eighteen months imprisonment on one count ...