[78 Ariz. 287] Ross F. Jones, Atty. Gen., Earl E. Weeks, Asst. Atty. Gen., for appellant.
Choisser & Choisser, Phoenix, for appellee.
This is an appeal by the state of Arizona from an order of the Maricopa County Superior Court quashing the information filed in the above-entitled cause and directing that the county attorney reinstate [78 Ariz. 288] said cause of action before a proper justice of the peace within 15 days from date of said order. The material part of the information reads as follows:
'The said Calvin C. Freeman on or about the 17th day of December, 1953, and before the filing of this information at and in the county of Maricopa, State of Arizona, did then and there wilfully, unlawfully and feloniously obtain from Mike Ribar the sum of $827.28 in lawful money of the United States of America and the property of the said Mike Ribar, by then and there stating to the said Mike Ribar that he had No. 2 grade lumber and better, and that said lumber would meet the requirements of the Federal Housing Aministration, when in truth and in fact said lumber was not No. 2 grade and would not meet the requirements of the Federal Housing Administration, and that said poor quality lumber had been covered and bundled over with better grade lumber so that the true quality of said lumber could not be ascertained upon visual inspection; that said lumber was short 1,576 board feet of the amount originally represented, and said lumber is worth approximately $150.00, said representations and pretenses were made by the said defendant for the purpose of cheating and defrauding the said Mike Ribar; all of which is contrary to the form, force and effect of the Statute in such cases made and provided and against
the peace and dignity of the State of Arizona.'
The court was of the view that the allegations in the above information brought it within the provisions of section 43-2614, A.C.A.1939, and so held in its order to quash.
Section 43-2614, supra, provides that:
'Confidence game-Bogus check.-Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any other person, any money, property, or valuable thing whatever, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instruments, or device, commonly called the 'confidence game,' or by means or by use of any false or bogus check, or by any other printed, written or engraved instrument, or spurious coin or metal, shall be guilty of a felony, and shall be punished by imprisonment in the state prison for a term of not less than one (1) nor more than five (5) years.'
We are of the view that the transactions detailed in the above information are not materially different from those in the case of State v. Freeman, 78 Ariz. 281, 279 P.2d 440, and under the rule laid down in Clark v. State, 53 Ariz. 416, 89 P.2d 1077, could not be prosecuted under the provisions of section 43-2614, supra, but must be prosecuted[78 Ariz. 289] under the provisions of section 43-5501(4), A.C.A.1939, which insofar as material here reads as follows:
'Theft defined.-Any person who:
'4. Knowingly and designingly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal * * * is guilty of theft. * * *'
The motion to quash the information is based upon five separate grounds, which are identical with those set forth in State v. Freeman, supra. Nos. 3, 4 and 5 thereof we believe may be properly considered under No. 1 which is to the effect that the information does not charge defendant with the commission of an offense. Unless they can be so treated they do not form the basis of a motion to quash an information under the provisions of section 44-1005, A.C.A.1939, which is our rule of criminal procedure No. 208. This rule specifically sets forth the grounds upon which an information may be quashed. Ground No. 2 of said motion to quash likewise is not to be found within the provisions of section 44-1005, supra, but inasmuch as the order to quash the information was based specifically upon that ground, i. e., that the information attempted to charge more than one offense in one count, we will discuss it in detail.
First, let us observe that we find in the records of this case and in State v. Freeman, 78 Ariz. 281, 279 P.2d 440, a companion case, amended information showing a filing date of May 5, 1954. The motion to quash was filed on May 3, 1954, and argued on that date. The order quashing the information was entered on June 2, 1954. We find no minute entry authorizing an amendment. In the absence of such authorization the amendment could not have been lawfully made and we can conceive of no reason why it was made a part of the record on appeal. In any event we will base this opinion upon the original information.
The court tested the sufficiency of the information by the standard set up in section 43-2614, supra. It is our view as stated above that it should have been tested by the provisions of section 43-5501(4), supra. By that standard the original information alleged the commission of a public offense in that it alleged that the defendant misrepresented the quality of the lumber to the injured person with intent to deceive and defraud him. This meets the requirements of section 43-5501(4), supra. See Clark v. State, supra, which holds that an allegation that the misrepresentations were made with intent to deceive and defraud is equivalent to alleging that it ...