[78 Ariz. 282] 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 and ordering and directing the county attorney to take appropriate action before a justice of the peace within 15 days of the date thereof to reinstate proceedings against defendant. The trial court found, and we believe correctly so, that the prosecution was brought under the provisions of section 43-5501, A.C.A.1939. The information alleges that:
'The said Robert Louis Freeman on or about the 16th 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 by false [78 Ariz. 283] and fraudulent representations, induce Thomas Garrity to pay $567.00 in lawful money of the United States of America in the form of a check, by stating that the said defendant had No. 2 grade lumber and that said lumber would meet all the requirements and specifications of the FHA when, in fact, said representations were false and fraudulent in that said lumber was not a No. 2 grade and did not meet any specifications of the FHA, whereby the said Thomas Garrity relying upon said representations paid to the defendant the sum of $567.00 when in fact said lumber was worth only $100.00; 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.'
Section 43-5501, supra, insofar as here material provides that:
'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.'
Defendant's motion to quash the information was based upon five separate grounds, to wit,
1. That the information does not charge the defendant with the commission of an offense;
2. That the information herein attempts to charge the defendant with the commission of an offense by more than one statement of the same offense in one count instead of separate counts, in violation of section 44-725a, A.C.A.1952 Cum.Supp.;
3. That the information attempts to charge the defendant with representations as to future facts or promises which do not constitute false pretenses;
4. The information does not charge that the injured party believed the pretenses to be true which does not charge the offense of theft by false pretenses;
5. That the information does not charge that the proposed acts were done knowingly and designingly and thereby leaves out the ingredient of knowledge and design and therefore does not charge the offense of theft by false pretenses.
Ground No. 2 of the motion does not form the basis for quashing an information under the provisions of section 44-1005, A.C.A.1939, and will therefore not be considered. We believe, however, that the other four grounds may be considered under the grounds stated in No. 1 ...