William G. Barnes, Phoenix, for appellant.
Robert Morrison, Atty. Gen., and Robert G. Mooreman, Asst. Atty. Gen., for appellee.
UDALL, Chief Justice.
Roy E. J. Wilson, defendant-appellant, was informed against, tried and convicted by a jury of the crime of attempting to obtain money or property by means of a bogus check, a felony (A.R.S. § 13-311). The court rendered judgment of conviction and imposed sentence. This appeal followed. At the trial defendant was represented by an attorney other than the one who now represents him on this appeal.
[84 Ariz. 166] At the close of the State's case defendant moved for an instructed verdict, which was denied. Thereafter defendant took the stand and testified. The primary question presented by this appeal is whether there is on the whole record substantial evidence to sustain the verdict and judgment. Defendant by his assignments of error urges that he was entitled to an instructed verdict at the close of the State's case because the State had failed to prove a prima facie case.
It is well settled in this jurisdiction that when a defendant does not stand upon his motion but elects to go forward with the proof he takes the chance of supplying the deficiency upon which his motion is based. On appeal all of the evidence is considered to determine whether or not it will sustain the verdict and judgment. State v. Howe, 69 Ariz. 199, 211 P.2d 467; Rain v. State, 15 Ariz. 125, 137 P. 550; Cf. United States v. Calderon, 348 U.S. 160, 75 S.Ct. 186, 99 L.Ed. 202. Defendant recognizes this principle of law but urges that no deficiencies were supplied by his testimony.
A statement of the facts in the light most favorable to a sustaining of the judgment follows. The parties will be referred to as the State and defendant.
On February 7, 1957, defendant entered the A. J. Bayless Market located at 1235 South Central in Phoenix and went to the office of Jack Bittner, the assistant manager. He asker Bittner if he would accept his personal check. On this check blank were written defendant's name (Roy E. J. Wilson) and address, a telephone number (purportedly that of his aunt), the name and address of a branch of the Valley National Bank, the date and $20, the amount of the check.
After some preliminary questions and an answer to a telephone call to the number listed on the check stating the party did not know him, defendant added below his signature 'Ariz. Mining Mininig Exp & Dev' which purportedly represented Arizona Mining Exploration and Development Company (a partnership), hereinafter referred to as the 'company'. Bittner asked defendant if he were authorized to sign for the company and he replied 'yes, he was, that he owned the company'.
Bittner marked the check noting further clearance was necessary and the defendant proceeded to select some groceries. Bittner called the telephone number again and upon being told for the second time the party at the other end of the line did not know defendant, he called the sheriff's office.
When defendant presented the check to the clerk to pay for the groceries he had selected, that sheriff's deputy approached [84 Ariz. 167] him and after a few questions took him to the sheriff's office. There he was booked
for investigation on a bogus check charge. Prosecution for a felony followed.
Our leading case on 'bogus checks' is Williams v. Territory, 13 Ariz. 27, at page 33, 108 P. 243, at page 245. Therein it was stated:
'* * * we hold that a check given by a person upon a bank in which he has no funds, and which he has no reason to suppose will be ...