Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Bobby Arthur Ellis was convicted of obtaining money and merchandise by means of a false and bogus check and he appeals.
Judgment reversed and cause remanded for a new trial.
Jennings & Tenney, of Phoenix, for appellant.
John L. Sullivan, Atty. Gen., and Chas. D. McCarty, Asst. Atty. Gen., for appellee.
Udall, Justice. Stanford, C. J., and LaPrade, J., concurring.
[67 Ariz. 8] The defendant, Bobby Arthur Ellis, was convicted of a felony, to wit: obtaining money and merchandise by means of a false and bogus check. He has appealed from the judgment of conviction and the denial of his motion for a new trial. There are but two assignments of error: (1) the court erred in denying defendant's motion for an instructed verdict; and (2) certain instructions and comments made by the court to the jury were prejudicial.
The state's testimony was adduced from three bank officials, the inspector in charge of the forgery detail of the Phoenix Police Department, and the store manager who received the "bogus" check. The defense offered no testimony whatsoever, but relied strongly on self-contradictory statements of the store manager, Mr. Jaffe. In considering the first assignment it is our duty to state the facts in the light most favorable to a sustaining of the jury's verdict. The evidence thus considered discloses that a day or two before May 10, 1947, the defendant, in company with one Patricia Aitkin went to Baker's Shoe Store in downtown Phoenix where a small cash purchase was made. At that time, Miss Aitkin, a former employee in good repute at the store, introduced
the defendant to manager Jaffe as her husband. On the morning of May 10th the defendant went to the head office of the First National Bank of Arizona in Phoenix where he had the Assistant Vice President prepare a draft on his "grandmother's" account with the Farmer's National Bank of Checotah, Oklahoma. He signed the draft and the usual bank signature cards, and advised the officer that when the collection under the draft had been made he would open a checking account with the bank. The defendant then went to Baker's Shoe Store where he purchased merchandise priced at $ 12.22. In payment he tendered his check on the First National Bank of Arizona for $ 15. The manager accepted the check and gave him $ 2.78 in change. As he emerged from the store he was arrested by the inspector. It further appears from the evidence that Patricia Aitkin was not his wife, that the draft was drawn on a non-existent bank, that his address appearing on the check was fictitious, and that the defendant had never, at any time, had an account or a deposit with the drawee bank.
This recital shows that thus considered there was ample evidence to warrant a conviction. The trial court did not err in denying the defendant's motion for an instructed verdict.
With regard to their second assignment of error, defense counsel concede that the original instructions given by the court [67 Ariz. 9] were proper. The court at that time fully and completely instructed the jury as to the pertinent rules of law governing the offense, using verbatim some of the language of the leading Arizona case on bogus checks, Williams v. Territory, 13 Ariz. 27, 108 P. 243, 27 L.R.A.,N.S., 1032.
The alleged errors complained of, however, occurred when, after some deliberation, the jury was returned into ...