Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge
Leroy Whitson was convicted of robbery and grand theft, and he appeals.
Reversed and case remanded.
V. L. Hash and J. Frank Gibson, both of Phoenix, for appellant.
John L. Sullivan, Atty. Gen., John W. Rood, Asst. Atty. Gen., and Francis J. Donofrio, County Atty., and James J. Caretto, Deputy County Atty., both of Phoenix, for appellee.
Udall, Justice. Stanford, C. J., and LaPrade, J., concurring.
[65 Ariz. 396]The defendant, in an information containing two counts, was charged with robbery and grand theft. The jury returned a verdict of guilty upon both counts and defendant has appealed from the final judgment of conviction and the court's denial of his motion for a new trial. Defendant's wife, Margaret Sugg Whitson, signed the criminal complaint and was the only witness against her husband to testify at the trial.
[65 Ariz. 397] At the outset it is clear that a husband, having the requisite felonious intent, may be guilty of robbery and grand theft of the separate property of his wife. This is possible because of the abrogation of the common law unity of husband and wife in regard to their separate properties brought about by the so-called "Married Women's Act", Sec. 63-303, A.C.A.1939. It would be contrary to reason that this statute should provide that 'Married women shall have the sole and exclusive control of their separate property * * *" if it was intended that a husband could ad libitum appropriate this property. In Eshom v. Eshom, 18 Ariz. 170, 157 P. 974, this court has already upheld the right of a wife in a civil case to a cause of action against her husband for conversion of her separate property. See also State v. Herndon, Fla. 27 So.2d 833.
There are four assignments of error, the first of which arises from the voir dire examination of the jury wherein the following was said:
"Mr. Caretto: Very well. Ladies and gentlemen of the jury, the persons involved in this trial are husband and wife, or were at the time of this transaction, and I was just wondering if that fact would make any difference in your decision, the fact that they were married, if you would require less proof on the part of the State than you would if they were strangers --
"Mr. Hash: If your Honor please, it occurs to me that it might make a vast difference. There might be a legal difference.
"The Court: No, there is no legal difference. I will so state to the jury right now. It is alleged in this information that the property taken was the separate property of Margaret ...