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State v. Marsin

Supreme Court of Arizona

February 19, 1957

STATE of Arizona, Appellee,
v.
Daniel J. MARSIN, Appellant.

Page 608

[82 Ariz. 2] Robert Morrison, Atty. Gen., Wm. P. Mahoney, Jr., County Atty., Maricopa County, and Thomas Tang, Deputy County Atty., Maricopa County, Phoenix, for appellee.

Terrence A. Carson, Phoenix, for appellant.

STRUCKMEYER, Justice.

Daniel J. Marsin was convicted of the crime of grand theft and appeals. Four [82 Ariz. 3] teen assignments of error have been presented to this court most of which do not require extended discussion.

It is defendant's position that the evidence is insufficient to support a conviction of theft in that criminal intent was not shown. Admittedly the intent to permanently deprive the owner of his possession is an essential ingredient of the offense. Whitson v. State, 65 Ariz. 395, 181 P.2d 822. From our examination of the transcript of the evidence, we are of the opinion not only that the jury was justified in finding that the defendant intended to permanently deprive the owner of his possession in the stolen articles, but that there can be no reasonable doubt to the contrary. Similarly it is urged that the evidence at the preliminary hearing was not sufficient to show that the crime of grand theft was committed. This argument comes too late when first raised on appeal. State v. Singleton, 66 Ariz. 49, 60, 182 P.2d 920.

Defendant was originally charged with the crime of grand theft and receiving stolen property. The charge of receiving stolen property was dismissed during the course of the trial. It is urged that a dismissal of this charge operates as an acquittal of the charge of grand theft and that the conviction on the charge of grand theft cannot be sustained where it is supported by the same evidence, citing State v. Laney, 78 Ariz. 19, 274 P.2d 838, and State v. Fling, 69 Ariz. 94, 210 P.2d 221. We find no merit in this assignment. The two offenses are so distinct that one cannot be said to be merged into the other, nor is the conviction of one in any was incompatible with the conviction or acquittal of the other. A.R.S. Crim. Rule 128, subd. C. Section 44-725a. A.C.A.1939 as amended. Leon v. State, 21 Ariz. 418, 189 P. 433, 9 A.L.R. 1393.

By statute, A.R.S. Crim. Rule 115, Section 44-711, A.C.A.1939, it is proper to charge an offense simply by its statutory name, and if the details of the offense are desired by the accused, a bill of particulars will be granted in accordance with A.R.S. Crim. Rule 116, Section 44-712, A.C.A.1939. By statute, A.R.S. 13-661, Section 43-5501, A.C.A.1939, the crime of theft may be perpetrated in a number of different ways. One is by the failure to return lost property to its owner. In the instant case, the information charged the crime of grand theft without specifying how the theft was committed. It is urged that the trial court erred in admitting evidence which might be construed by the jury as indicating that the defendant initially took and carried away the property rather than found it after it was stolen. Inasmuch as defendant neither requested a bill of particulars which would have limited the prosecution to the details contained therein, nor objected to admission of the evidence at the trial, we find no merit to this contention. Nor did the court err in submitting[82 Ariz. 4] the charge of grand theft to the jury on instructions relating to the State's theory of the commission of the offense; namely, by failing to return lost property; neither is the verdict of the jury a nullity or void as not being responsive to the crime charged. We find no merit to defendant's assignment that the argument of the prosecuting attorney was inflammatory and prejudicial; nor will we consider claimed

Page 609

errors in instructions where given without objection unless so fundamental that it is manifest that the defendant did not have a fair trial. State v. Martinez, 67 Ariz. 389, 198 P.2d 115.

We come now to what defendant claims is the most damaging and serious error in the trial. The court, over objection, admitted in evidence the testimony of witnesses that Marsin had, in a civil hearing prior to his arrest, refused on advice of counsel to answer certain questions relating to the stolen property on the ground that the answers might tend to incriminate him. It is the theory of the prosecution that the refusal to answer in that hearing is a tacit admission from which the jury in this criminal case could draw an inference of guilt. Defendant argues that the privilege of self-incrimination is worthless, if, subsequent thereto, the party availing himself of it incurs a detriment or a penalty.

The Constitution of this State, Article II, Section 10, A.R.S., provides:

'No person shall be compelled in any criminal case to give evidence against himself, * * *.'

This article is consonant with like constitutional provisions found in nearly every state and with the Fifth Amendment to the Constitution of the United States. Its historical background has been the subject of such extensive examination that there cannot now be any misunderstanding as to the reason for its perpetuation as the fundamental law of this county. VIII Wigmore, Evidence, 3rd Edition, Section 2250. 21 Virginia Law Review 763, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America; 42 Georgetown Law Journal 345, The Fifth Amendment-An Evaluation.

During the early years of the Seventeenth Century, there existed in England a period of extreme political and religious strife under the reigns of the Tudors and Stuarts. The Court of Star Chamber and its 'ecclesiastical twin,' the Court of High Commission, were instrumentalities of arbitrary and despotic powers in which the interrogation of those brought before them was accompanied by the use of both force and the compulsory testimentary oath. Puritanical opposition to the compulsory oath was seemingly as strong as the use of violence being placed in the same category as torture and the resentment to these practices greatly stimulated the emigration of dissenters to America who fled from the [82 Ariz. 5] kingdom in search of political and religious freedom in the colonies. There the struggle against compulsory testimony continued for the administration of justice was in the hands of the prerogative courts of governor and council and persisted sporadically to the time of the Revolution. As the final break with England approached many of the colonies enacted bills of rights and constitutions containing clauses prohibiting compulsory testimony. For example, in the Constitution of Pennsylvania in 1776, Chapter I, Section IX, it was provided:

'That in all prosecutions for criminal offences, a man hath a right to be heard by himself and his counsil, * * * nor can he be compelled to give evidence against himself * * *.' (Italics ours.)

From the historical standpoint, the privilege against self-incrimination is directly referrable to no more than a prohibition against compelling testimony either by force or by inquisition under compulsory oath. The essential liberty guarded is the involuntary nature of the self-accusation. Indian Fred v. State,36 Ariz. 48, 60, 61, 282 P. 930. Nowhere do we find any ...


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