Rehearing Denied March 8, 1955.
[78 Ariz. 322] Paul H. Primock, Phoenix, for appellant.
Ross F. Jones, Atty. Gen., William T. Birmingham, Asst. Atty. Gen., and Morris K. Udall, County Atty., Tucson, for appellee.
LA PRADE, Chief Justice.
This appeal is from a judgment finding the defendant, Ben Hoffman, guilty of selling his assets with the intent to defraud his creditors, in violation of section 43-2603, A.C.A.1939, which reads as follows:
'Every debtor who fraudulently removes his property or effects out of this state, or fraudulently sells, conveys, assigns or conceals his property, with intent to defraud, hinder or delay his creditors of their rights, claims or demands is punishable by imprisonment in the county jail not exceeding six (6) months, or by fine not exceeding five thousand dollars ($5,000), or by both.'
The evidence showed that Hoffman purchased grocery merchandise from sellers throughout the country and sold the merchandise without intending to make payment; that these sellers failed to check the credit status of the defendant; that all of his purchases were made by collect telephone call; that some of the goods purchased by Hoffman were sold to local grocery stores and merchant peddlers in Tucson; and that defendant kept no business records and in most instances sold for cash. The number of creditors who had not received payment were numerous. On completion of the trial the jury found the defendant guilty on all of the five counts as charged. On motion a new trial was granted on the first two counts. The appellant makes ten assignments of error.
Appellant contends first that the trial court erred in refusing to grant a new trial on all counts or directing a verdict for the defendant. To support this assignment appellant argues that the state failed to prove each allegation contained in the information. Each count of the information specified a particular creditor allegedly [78 Ariz. 323] defrauded and each count also stated that the defendant had defrauded 'in sundry' other creditors. These other creditors were specified in a bill of particulars. At the trial it was not proved that each and every creditor so listed in the bill of particulars had been defrauded by the defendant. The jury's finding of guilt was based on evidence that many of the creditors, if not all, had been defrauded. Appellant contends that for the state to prevail it must prove that each individual creditor named in the bill of particulars was in fact defrauded. This is incorrect. Variance between the bill of particulars and the proof will not constitute grounds for a new trial unless it is shown that the defendant was misled and his right to a fair trial substantially prejudiced. State v. Gilmore, 1942, 47 N.M. 59, 134 P.2d 541. The defendant was clearly apprised of the nature of the charges and the identical creditors whom he was found guilty of having defrauded. That the defendant was not proved to have defrauded all the listed creditors does not lessen his guilt for those he did defraud. Violation of the statute does not hinge on the number of those defrauded. The variance here was inconsequential and as such it does not constitute substantial error under our statute, section 44-748, A.C.A.1939.
Appellant next contends that the verdict was contrary to the evidence in that there was no evidence that the defendant intended to defraud his creditors at the time he sold the merchandise. It was shown that the defendant repeated his actions often, buying goods, selling them and making no payments to his creditors. Whether the defendant was an honest businessman who had intended to pay his creditors but was then suffering financial misfortune or whether the defendant made these sales with no intention to pay for the goods, was a question for the jury to resolve.
At the time of the trial seventeen creditors were pressing their claims. As to all these creditors the state neglected to show the exact indebtedness owing to each, but as to ten of them the evidence showed that the defendant had purchased from them goods to the extent of $11,609.95 and had paid them $747.80. Some creditors had sued and attached, by which suits $425 had been realized. From the testimony of a deputy sheriff it appears that he found some property under previous attachment, but was not able to find any property of the defendant that might be attached. A fair inference from all the testimony is that at the
time the prosecution was instituted the defendant had disposed of all the goods, wares and merchandise that he had purchased.
Indicative of the defendant's modus operandi are the following examples. On June 18, 1953, defendant sold thirty dozen brooms at $8 a dozen which he purchased on June 3d at a cost price ranging from $13.49 a dozen to.$17.23 a dozen; he sold tea at $8 a case which cost him $13 a case; and he sold salmon at $9 a case which cost him $11 a case. From one creditor defendant[78 Ariz. 324] had purchased 1,254 boxes of figs of the purchase value of $2,955.85 on which indebtedness defendant had paid nothing. From another creditor defendant purchased $1,431.20 of coffee and tea which he disposed of and paid nothing on the account. From a candy manufacturer he purchased $1,095 of candy and paid only $96 on account.
Criminal intent is often elusive and difficult to illustrate by specific acts. In Gates v. United States, 10 Cir., 1941, 122 F.2d 571, at page 575, the court stated:
'* * * fraudulent intent, as a mental element of crime, is often difficult to prove by direct evidence. In many cases it must be inferred from acts of the parties, and inferences may arise from a combination of acts, even though each act or instance, standing by itself, may seem unimportant.'
We hold that the jury could properly infer intent to defraud from the evidence submitted.
The defendant assigns as error the admission into evidence of bills representing indebtedness to his creditors, the contention being that these documents were copies of originals and not the best evidence of his indebtedness.
These bills were offered in evidence by the state under our business records statute, section 23-314, A.C.A.1939, as amended, A.C.A.Supp.1952, § 23-314. To comply with this section it was necessary that a custodian testify as to '* * * its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event * * *.' The custodian offered by the state was a representative of the Better Business Bureau in Tucson who had received authority, by letter, to represent the various creditors. The witness had no actual knowledge of the method in which the bills were prepared. In objecting to this evidence the defendant stated that no foundation had been laid for the admission of these documents and that the witness could not qualify as a custodian. With this contention the trial court agreed and granted a continuance to enable the state to obtain proper custodians from the various creditors. When these witnesses arrived to testify the defendant again objected to the admission of the documents on the ground that no foundation had been laid. This time the objection referred to the interval of time between the date at which the original bills were prepared and the date the copies being offered were made. The witnesses stated that the copies were true copies of originals which had been made contemporaneously with the transaction and the trial court admitted them in evidence.
Here on appeal the defendant now states that his objection of 'no foundation' not only raised the competency of the custodian and the time at which the bills had been prepared but also the best evidence [78 Ariz. 325] rule. The defendant states that the copies were improperly admitted until it was shown that the originals were inaccessible. In the absence of a proper objection at the trial the validity of this point may not be considered for the first time on appeal. State v. Upton, 1946, 65 Ariz. 93, 174 P.2d 622. The purpose of an objection is to permit the trial court to rectify possible error, Federico v. Hancock, 1882, 1 Ariz. 511, 25 P. 650, and to enable the opposition to obviate the objection if possible. Rush v. French, 1874, 1 Ariz. 99, 25 P. 816. From reading the transcript it is apparent that neither the trial court nor the state were given notice that the appellant intended to raise the best evidence rule. The objection of 'no foundation' is too broad to now argue the best evidence rule without this basis being specified below. Hartzell v. United States, 8 Cir., 1934, 72 F.2d 569.
Appellant next contends that the trial court abused its discretion by granting the state a seven-day continuance to permit it to obtain the proper custodians of the documents offered in evidence. Appellant states that the attendant delay denied the defendant his right to a speedy trial and that the jury was influenced by prejudicial newspaper stories commenting on the expense borne by the county in bringing these witnesses to Arizona.
The trial court's right to grant a continuance is discretionary, section 44-1603, A.C.A.1939. The continuance granted here was not a reward for incompetency. The state had prepared its case by obtaining a custodian-that counsel was mistaken in his choice of a custodian does not necessarily mean he was derelict. We hold that the trial court did not abuse its discretion in granting the state the continuance for the purpose of obtaining necessary witnesses for the trial. People v. O'Shaughnessy, 1933, 135 Cal.App. 104, 26 P.2d 847. Whether a speedy trial has been denied will vary with the facts of the case. We find no arbitrary or capricious delay in the trial of Hoffman. The prosecution was carried through as soon as the dictates of justice would permit. State v. Beckwith, 1944, 222 Inc. 618, 57 N.E.2d 193. The only prejudice contended to have been created by the delay is that during this period the jury might have read news articles which appellant states were unfavorable to the defense. This proposition raises a perennial question in criminal law. Publicity always presents a latent threat to a fair trial, yet it must be recognized that the public has a legitimate right to be informed on matters of general interest. The point at which these two desirable ends may conflict is not subject to doctrinaire definition but must vary with the facts. There was no showing that the jury members were in fact influenced by the publicity, nor that the publicity created an abnormal or unusual situation. In the absence of such showing it must be assumed that the jury obeyed the admonition of the trial judge and retained an open mind until all evidence had been submitted.
[78 Ariz. 326] The next contention of appellant is that the trial court erred in permitting the state to amend the information at the close of the trial. The counts of the information alleged that the defendant did 'sell, convey, assign and conceal his assets and property, all in violation of section 43-2603.' When amended the information charged that the defendant did 'sell his assets and property, all in violation of section 43-2603.' The state had deleted the allegation that the defendant had 'conveyed, assigned or concealed' his assets and property. Appellant asserts that allowing this amendment was error because it altered the substantial elements of the crime.
Various methods of violating the statute are enumerated by its provisions. A party may sell, convey, assign or conceal his assets with intent to defraud, but each method of disposal need not be proved in every case to obtain a conviction, one method is sufficient. Every possible technique of defrauding creditors under the statute is not a criminal element of every case. The ...