Fred O. Wilson, Atty. Gen., and Charles Rogers, Asst. Atty. Gen., for appellee.
J. Frank Gibson, of Phoenix, for appellant.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.
Udall, Chief Justice.
[73 Ariz. 139] Willie Harris was convicted of the crime of grand theft and sentenced to serve not less than two nor more than five years in the state prison. After his motion for a new trial was overruled, he prosecuted this appeal from the denial of the motion and from the judgment and sentence rendered against him.
The defendant and Sammy Smith were jointly charged by the information of unlawfully and feloniously taking 35 cartons of cigarettes, three cases of pepper and three cases of coffee, of the total value of
$ 132.16, which was alleged to be the personal property of Walter Ong. Sammy Smith was acquitted by the jury.
Walter Ong was the owner of Central Market No. 2, located at 1602 E. Thomas Road, Phoenix, Arizona and had employed the defendant for three years previously as a janitor and handy man. Ong had been missing merchandise from time to time from the store and had reported it to Fred [73 Ariz. 140] Nichols, a detective of the Phoenix Police Department. On Sunday morning, November 12, 1950, Nichols concealed himself behind a service station near the store for the purpose of watching the premises. He saw the defendant arrive around 8 a. m. and a few minutes later Sammy Smith drove up in his car.
The defendant went to the market as was his usual practice on Sunday mornings to clean the premises, and it appears that immediately after arriving there he telephoned Sammy Smith asking him to bring his car and make a delivery. Upon Smith's arrival the defendant rolled a pushcart out containing three cases of pepper, and three cases of coffee which he started to put in the car. Sammy Smith remained in the car and gave the defendant no physical assistance. Before the defendant had finished loading the car Detective Nichols appeared and placed them under arrest. He took both the defendant and Sammy Smith inside the store and telephoned Walter Ong, requesting that he come to the store. Upon his arrival Ong informed the officer that he had not given either Willie Harris or Sammy Smith permission to sell or remove merchandise from the store.
The defendant makes nine assignments of error which can be divided into two main categories. The first four have to do with the court's refusal to give certain instructions submitted by the defense, and the last five complain of the court's sustaining objections ...