Rehearing Denied August 1, 1947.
Appeal from Superior Court, Maricopa County; Harold R. Scoville, Judge.
C. Dickens was convicted of flying at such a low level as to endanger the persons on the surface beneath, and he appeals.
Eli Gorodezky, Robert E. Yount and James A. Struckmeyer, of Phoenix, for appellant.
John L. Sullivan, Atty. Gen., Perry M. Ling, Asst. Atty. Gen., and William P. Mahoney, Jr., Asst. Atty. Gen., for appellee.
Udall, Justice. Stanford, C. J., and LaPrade, J., concurring.
[66 Ariz. 89] C. Dickens, the defendant in the court below, the appellant here, a licensed airplane pilot, was informed against in the Superior Court of Maricopa County for an alleged violation of sec. 48-115, A.C.A.1939, which charged him with the crime of flying "at such a low level as to endanger the persons on the surface beneath, * * * a misdemeanor." The case was tried before a jury and the defendant found guilty whereupon the court sentenced him to serve thirty days in the county jail and to pay a fine of $ 300. From the judgment of conviction the defendant has appealed seeking a review of the rulings of the court, particularly with reference to the court's refusal to dismiss the information and to direct a verdict in his favor.
The seven assignments of error raise but two propositions of law that need be considered, the first being that the information does not charge a public offense. It was drawn under sec. 48-115, A.C.A.1939, which reads as follows: "Any aeronaut or passenger who, while in flight over a thickly inhabited area or over a public gathering within this state, shall engage in trick or acrobatic flying, or in any acrobatic feat, or shall, except while in landing or taking off, be at such a low level as to endanger the persons on the surface beneath, or drop any object except loose water, loose sand ballast, or loose sheets of paper, shall be guilty of a misdemeanor and punishable by a fine of not more than five hundred dollars ($ 500), or imprisonment for not more than one (1) year, or both." (Emphasis supplied.)
Although this information was based upon the emphasized portion of the
statute, the defendant contends that no offense is stated since there is no allegation in the information that he was flying "over a thickly inhabited area or over a public gathering within this state". Such reasoning overlooks the fact that four offenses are included within the statute by reason of the use of the disjunctive "or", e. g. (1) Trick or acrobatic flying over a thickly inhabited area. (2) Trick or acrobatic flying over a public gathering. (3) Flying at such a low level, except while taking off or landing, as to endanger ...