80 P. 348 | Ariz. | 1905
The appellant in this case, Charles De Leon, was indicted on November 10, 1903, by the grand jury of
At the close of the testimony for the territory, the defendant moved the court to instruct the jury to return a verdict of not guilty, on the ground of the insufficiency of the evidence to sustain the charge made in the indictment. This motion was denied, and, the defendant offering no evidence, the ease was submitted to the jury, after instructions from the court, and the jury returned a verdict of guilty. The defendant, after verdict, moved for a new trial, which was denied, moved in arrest of judgment, which was also denied, and he was thereupon sentenced to imprisonment in the territorial prison for two years. From the judgment of imprisonment, and the denial of the motion for a new trial, the defendant has appealed.
The eighteen assignments of error contained in appellant’s brief may be grouped under five different heads. The first, second, and third assignments present the correctness of the ruling of the trial court in overruling the defendant’s motion to set aside the indictment filed November 12th, on the ground of the disqualification of the grand jury that returned an indictment for this offense against the defendant on the 10th to again consider the same charge against the same defendant and return a second indictment on November 12th, after the first indictment had been declared insufficient by the court to properly charge the offense attempted to be charged therein. Subdivision 4 of section 862 of our Penal Code provides that “the indictment may be set aside by the court upon motion when the defendant has not been held to answer before the finding of the indictment, on any ground which would have been good ground for challenge either to the panel or to any individual grand juror. ’ ’ Section 792 of the Penal Code gives as one of the grounds for challenge to an individual grand, juror that ‘ ‘ a state of mind exists on his part in regard to the facts of the case or to either party, which satisfies the court in the exercise of a sound discretion, that he cannot act impartially and without prejudice to the substantial rights of the party challenging.” The appellant bases his assignments of error on
Section 873 of the Penal Code provides that “if the demurrer be allowed, the judgment shall be final upon the indictment demurred to, and shall be a bar to another prosecution of the offense unless the court being of opinion that the objection upon which the demurrer is allowed may be avoided in a- new indictment, direct the ease to be so submitted to the same or another grand jury.” This provision of the Penal Code that the ease may be resubmitted to the same grand jury certainly authorizes the grand jury to consider the case and return an indictment thereon. The Penal Code having conferred no right upon a defendant to challenge the grand jurors at any time after they have once acted upon an indictment, no such right exists in this jurisdiction. The authorities cited and the argument offered by the appellant in his brief do not impress us as raising any serious question as to the right of a grand jury, under our code, to find a second indictment on a case that has been resubmitted to them after a demurrer has been sustained
The fourth, fifth,, sixth, and eighteenth assignments of error present the question of the sufficiency of the second indictment found against the defendant. The charging part of the indictment alleges that “the said Charles De Leon being then and there intrusted by one Mrs. Edith De Leon with a certain sum of money, . . . being the separate property of Mrs. Edith De Leon, and intrusted to the defendant as aforesaid for the use of her, the said Mrs. Edith De Leon, and the said defendant then and there having the said sum of money in his possession by virtue of said trust, . . . he, the said Charles De Leon, did then and there feloniously, unlawfully, and fraudulently embezzle the said sum of money, and appropriate the same to his own use, and to a use and purpose not in the due and lawful execution of his trust.” The demurrer to this indictment was based upon the ground, among others, that the facts stated in said indictment do not constitute a: public offense, and it is on this ground that the assignments of error rely. It is urged in the brief that this indictment, as above quoted, wholly fails to state the purpose for which the money was intrusted to the defendant, and is fatally defective therein, and the demurrer should have been sustained. This offense is purely statutory, and is defined in section 160 of the Penal Code: “Every broker, agent or person otherwise intrusted with, or having in his control, property for the use of another party who fraudulently appropriates it to any use or purpose not in the due or lawful execution of his trust ... is guilty of embezzlement.” Under the provisions of that section, whenever the indictment charges and the evidence on the trial establishes the two facts, — 1. That the person has been intrusted with the property in question for the use of another person; and 2. That he has fraudulently appropriated it to some use and purpose not in the due and lawful execution of such trust, —these are unquestionably sufficient to establish the offense, even though the prosecution might not know, or might not be able to establish by competent evidence, the particular use or purpose in behalf of such other person for which said
The seventh assignment of error is based upon the admission in evidence of the cheek (Exhibit B) upon the ground that the same was immaterial and irrelevant, and was a departure from the allegations of the indictment. The indictment informed the defendant that he was charged with embezzling a certain amount of money, and it is therefore contended that the admission in evidence of the check was error on the part of the court, as he was not tried for drawing out of a bank money that had been therein deposited. The indictment was for embezzlement, which was based upon the ground that the party obtained the money or property, with the embezzlement of which he is charged, in a lawful manner. If the original taking was felonious, the offense would be larceny. The introduction of the check to which objection has been made was perfectly proper, as being one of a chain of circumstances following after the establishment of the arrangement made with the bank, to show that the defendant came into the possession of the money in a manner that was authorized, and was as relative and material to this case as would have been the sack in which stolen money was carried off, or the saddle and bridle with which a horse had been ridden off by the defendant on his prosecution for larceny.
The eighth assignment of error is based on the admission in evidence of the testimony of Roberts, the sheriff, to the identity of the signature of the defendant to a letter written by the defendant to his wife while in jail; and the ninth and fourteenth assignments of error are based upon the admission in evidence of the testimony of the same witness (Rob
The eleventh assignment of error is based upon the following instruction given by the court: “The placing of money in a bank, to be drawn upon by another, is not, in legal effect, the intrusting of money to that person; but, if one has
The tenth, twelfth, thirteenth, sixteenth, and seventeenth assignments of error present the question of the sufficiency of the evidence to support the conviction. The allegations
The judgment of the lower court is therefore affirmed.