Appeal from Superior Court, Maricopa County; Harold R. Scoville, Judge.
Joseph W. King was convicted of grand theft, and he appeals.
Lewkowitz & Wein, of Phoenix, for appellant.
John L. Sullivan, Atty. Gen., and William P. Mahoney, Jr., Asst. Atty. Gen., for appellee.
LaPrade, Justice. Stanford, C. J., and Udall, J., concur.
[66 Ariz. 44] The defendant was convicted of the crime of grand theft, a felony, and, after judgment was pronounced, perfected this appeal. The information charged that he fraudulently appropriated a console model combination radio, the personal property of one Hortensia Cortez that had been previously entrusted to him. The information was grounded upon a proper complaint and commitment from a magistrate. Prior to these proceedings the defendant had been charged on the identical set of facts, held to answer, and an information filed against him. A motion to quash this information was sustained at which time the county attorney asked leave to file an amended information, which motion was denied. Thereupon defendant's bail was exonerated and he was released from custody. Subsequent thereto a new complaint was filed before a magistrate upon which he was held to answer, the information filed, and the conviction had as above indicated. Prior to trial defendant moved to quash the second information upon the ground that the dismissal of the first information without leave to file a new information constituted a bar against any subsequent prosecution for the identical facts alleged to be an offense. This motion was denied and constitutes one of the assignments of error for this appeal. Briefly the fact situation is as follows.
The prosecuting witness, a Mexican woman, testified that the defendant came to her house and asked her if she had a radio that needed repair; that she did not sufficiently understand English to conduct any negotiations with him; that she secured the services of an interpreter; that the defendant secured the radio phonograph from her upon the representation that he would repair it and return it in three days; that she was asked to sign a blank document which defendant explained was necessary to enable him to secure parts under certain O.P.A. regulations; that defendant failed to return the machine; that she and her friend went to the address that he had given as his place of business and discovered that he did not have a place of business or work at the address given; that they proceeded into the next block and accidentally ran into him; that they followed him into his home and there discovered the radio which apparently was in good working order and was then being played. The prosecuting witness called a [66 Ariz. 45] deputy sheriff and made complaint. Defendant testified that he purchased the machine from Mrs. Cortez, and exhibited what purported to be a receipt showing that he had purchased the machine and that the consideration paid and received was $ 90. The prosecuting witness denied that she had signed any receipt and testified that the only document she had signed was the blank document above referred to. She testified positively that she made no sale and received no money from defendant. It was upon this evidence that the jury found the defendant guilty.
Defendant has assigned as error the refusal of the trial court to direct a verdict of not guilty upon the theory that the material allegations of the information were not proved beyond a reasonable doubt. It is the contention of defendant that this motion should have been granted in that the weight of the evidence disclosed
that defendant had purchased the machine and had not embezzled it. He challenged the sufficiency of the proof "(a) to warrant its submission to the jury because the elements of the crime were not proved beyond a reasonable doubt; (b) to warrant a verdict and judgment of guilty." These contentions hardly merit consideration.
To begin with, it is not the law that the court should direct a verdict for the defendant if "the elements of the crime are not proved beyond a reasonable doubt." On the subject of directed verdicts, section 44-1835, ...