Judgment affirmed as to the burglary conviction and reversed and remanded for new trial as to the grand theft charge.
Croaff & Croaff, of Phoenix, for appellant.
Fred O. Wilson, Attorney General, Chas. Rogers, Assistant Attorney General, and Douglas Clark, Deputy County Attorney, Phoenix, for appellee.
Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concur.
[70 Ariz. 401] Defendant Elmer Merle Parsons, age 23, was convicted upon two felony counts, to wit: Burglary (first degree) and grand theft, and was thereafter sentenced by the court to serve not less than three nor more than four years in the state penitentiary on
each count. The sentences, however, were to run concurrently. From the judgments of conviction and the orders of the court denying his motions for a new trial and in arrest of judgment, this appeal was taken.
[70 Ariz. 402] The facts, briefly stated in the light most favorable to sustaining the convictions, are that defendant had interrupted his journey by air to Pittsburgh, stopping over in Phoenix late Saturday evening to visit with friends. He stayed with them Saturday night, and late Sunday afternoon he began drinking, continuing this until 10 p.m. at which time he parted from his acquaintances. Later that same night he broke the padlock from a trailer house (which was being used by the owner as an office for his used car business) at 1757 West Van Buren Street in Phoenix. Defendant, according to his own admissions, entered same to procure the keys to cars standing on the lot. One of these keys fitted a 1948 Mercury coupe, which he then proceeded to drive away. Shortly thereafter defendant drove to the Greyhound bus depot where he got his luggage from a locker.
Discovering that the car he was driving had no license plates and but little gasoline, he took plates from a parked car, wired them onto the Mercury coupe, and then proceeded to break into a service station at 3751 East Van Buren to obtain some gasoline. The resultant noise attracted attention and defendant fled in the Mercury towards the town of Tempe, about nine miles east of Phoenix, pursued by the station operator. He eluded his pursuer but in doing so badly wrecked the car. He was later apprehended about 2 a.m. in the car by a Tempe policeman. During that day he gave a signed statement to a deputy sheriff admitting these facts. This statement was admitted in evidence.
At the trial his only defense was that he was in an "alcoholic fog" and had a very indefinite recollection of the occurrences on the evening in question and was therefore incapable of forming a criminal intent to commit the crimes charged.
By reason of the faulty arrangement of his brief, it has been extremely difficult to follow the defendant's assignments of error and the legal points relied upon. Nevertheless, we shall consider the ...