Appeal from Superior Court, Pima County; Lee Garrett, Judge.
J. W. Stephens, J. W. Stephens, Jr., and Leon Stephens were convicted of robbery, and they appeal.
James M. Corbett, of Tucson, for appellants.
John L. Sullivan, Atty. Gen., and William P. Mahoney, Jr., Asst. Atty. Gen., for appellee.
La Prade, Justice. Udall, J., concurring. Stanford, Chief Justice (specially concurring).
La Prade, Justice.
[66 Ariz. 220] Defendants, J. W. Stephens, Sr., and his two sons, J. W. Stephens, Jr., and Leon Stephens, were convicted of the crime of robbery. From the judgment and order of the trial court denying them a new trial they have perfected this appeal. They have made numerous assignments of error, three of which we believe to be worthy of consideration. Their first assignment of error is that the verdict and resulting judgment are contrary to law. A kindred assignment is that the verdict is contrary to the weight of the evidence. Their third assignment complains of claimed prejudicial
remarks of the deputy county attorney in his argument to the jury.
The evidence discloses a rather strange situation. To attempt to fathom the intentions of defendants by applying rules of common horse sense to their conduct leads the orderly mind into stray paths. Before we consider the evidence we believe it advisable to have before us the statutory definition of robbery. Section 43-5101 of our code reads as follows:
"Robbery defined -- Fear -- Penalty. -- Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence and against his will, accomplished by means of force or fear. The fear may be either of an unlawful injury to the person or property of the person robbed, or of a relative or member of his family; or of an immediate and unlawful injury to the person or property of any one in the company of the person robbed at the time of the robbery. Robbery is punishable by imprisonment [66 Ariz. 221] in the state prison not less than five  years."
With this definition of the crime before us we will make an extended investigation into the fact situation developed on the trial.
At about 9:30 p. m. on December 11, 1946, the complaining witness, a young man by the name of William R. Gregg, left his brother's home on the outskirts of Tucson and walked to Prince Road where he intended to catch a bus to Tucson. Having missed the bus, he started to walk down the road, at which time defendants approached him in their car. He hailed them, "thumbing" to indicate that he would like to ride. The car stopped some feet beyond him; he approached and entered, seating himself in the rear seat of the four-door, two-seat sedan. It later developed that the car was driven by J. W. Stephens, Sr.; J. W. Stephens, Jr., was sitting in the middle; and Leon Stephens to the right of him. J. W. Stephens, Sr., observed that he never failed to pick up a hitchhiker and began a conversation about highjacking. In this regard he addressed the two boys, saying that if they highjacked him they wouldn't receive much as he had only thirty-five cents. At this point we will let the story unfold through the testimony of the complaining witness Gregg:
"A. He kept talking along those same lines, about how little money he had on him and how hard it would be for him if they took his car, and I thought it was a manner of conversation, so I entered into the conversation and said that I thought it wouldn't be worth their while to highjack him, and we were then about Fort Lowell Road, and they asked him for cigarettes, and he said he didn't have any, and the fellow in the middle from where I was sitting, it looked like he was holding a gun on the driver, and the driver was getting uneasy, and when he asked for cigarettes and this fellow said he didn't have any, then the young fellow said, 'You have, too; you have some in your pocket.' He said, 'That is right, I do have, I smoke once in a while,' and so he reached in his pocket and gave the boys some cigarettes.
"Q. What happened? A. Just prior to that, something was mentioned about the boys wanting to go to El Paso, and they asked about how far it was to El Paso, and he said he didn't know, that he had only lived here ten years, and after he gave the boys the cigarettes the fellow in the middle offered the cigarettes back to him, and the other boy said, 'Just keep them; we might need them,' and after they proceeded along on First this fellow said he didn't have a thing, that the car was insured, and if they wanted that, let them have it, and he said, 'If it is insured, they won't get very far with the car,' and the fellow in the middle, to my impression, was holding a gun on the driver, he said, 'We don't want your car, we rather have you do your own driving.' I saw by that that I was in the wrong party and I asked to be let out of [66 Ariz. 222] the car. I said, 'If it is too crowded, I'll ask you to let me out,' and the fellow in the middle said, 'We'll let you know if we want you to get out.' All the way along First the fellow driving drove very slowly and the little fellow in the middle jacked him up about going too slow, and the fellow driving said, 'We will have to go through town and I've got to stop some place, there is a stop sign up here a little
ways,' and the guy in the middle said, 'We'll let you know where to go and you won't have to stop,' and by that time we were down on First just about to St. Luke's in the Desert, and this boy said, 'You turn left here and go on,' and he turned on that street and we went several blocks and then turned again on Santa Rita. About the time we turned off First I asked them why they wanted to go to El Paso, and the guy in the middle said, 'We're not asking you any questions; we didn't ask you what you had for breakfast,' so when we turned off that street again on to Santa Rita the old fellow made a remark, 'If I had any money I would gladly give it to you boys, but I don't have a penny.' I had a few dollars on me, so I felt that in order to get out of the car, we turned off Santa Rita on to Helen and stopped just a few car lengths off of Santa Rita, and I said, 'If I give you my twelve dollars, will you let me out?' and the big fellow (J. W., Jr.,) said, 'Yes, we will,' so I gave them the twelve dollars and got out of the car and at the same time I heard the driver get out on the other side of the car, and I asked him if he knew the license number of the car, and to come in and we would phone the police."
When the car stopped the complaining witness noticed that the father also was alighting from the car, whereupon the complaining witness asked him if he knew who the boys were, to which inquiry the father said, "No," nor could he remember the license number of his car. Gregg and the father went to a telephone and called the police. Gregg reported to the police substantially the foregoing testimony. The father then took the phone, at the request of the police officer, and reported the robbery. Gregg testified further that in view of what had transpired he was afraid of being molested, and that he tendered his twelve dollars because he was in a state of fear and thought it might make it possible for him to get out of the car; that from what was said and done he was afraid for the driver of the car; that at the time he (Gregg) alighted from the car, J. W., Jr., told him to walk to the rear of the car; that J. W., Sr., at the time Leon jabbed him in the ribs, demanding cigarettes, told him to put it away (Gregg thinking he was referring to a gun). The witness testified:
"A. And just after that conversation is when he supposedly took the cigarettes from the old man and acted like he nudged him with the gun, and that is when I first got uneasy.
"2. And you thought there was a ruckus going on or a hold-up or highjacking? A. Yes, sir."
[66 Ariz. 223] Gregg testified that he handed the twelve dollars to J. W., Jr.; that J. W., Sr., offered his money to the boys; that when Gregg asked to leave the car one of the boys said to him, "We will let you know when we want you to get out."
With reference to the demand made on him for money by the boys, J. W., Sr., testified as follows:
"A. I said, 'If you are figuring on getting any money off of me, I haven't got it.'"
With reference to taking the car the father on cross examination testified as follows:
"Q. And you say you did not tell the officer what the officer testified you did? A. He only asked me if my car had been taken, and I said it was. He said, 'Do you know what the number was?' I didn't, I said, 'No, I don't, 4-F something'.
"Q. Did he ask you who took it? A. No.
"Q. You didn't tell him, did you? A. I didn't tell him.
"Q. And it was your two sons, J. W. Junior, and Leon, was it not? A. That is right, it was.
"Q. And you never at any time told the police, until they questioned you the next day, as to who ...