State v. Holmes

465 P.2d 372, 11 Ariz. App. 433, 1970 Ariz. App. LEXIS 513
CourtCourt of Appeals of Arizona
DecidedFebruary 25, 1970
DocketNo. 1 CA-CR 210
StatusPublished
Cited by2 cases

This text of 465 P.2d 372 (State v. Holmes) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Holmes, 465 P.2d 372, 11 Ariz. App. 433, 1970 Ariz. App. LEXIS 513 (Ark. Ct. App. 1970).

Opinions

STEVENS, Judge.

Jordan D. Holmes was convicted of grand theft by false pretenses. A.R.S. § 13-664 sets forth the requirements of proof. The basic issue on this appeal is the sufficiency of the evidence to satisfy the statutory proof requirements.

The information charges that Holmes:
“ * * * on or about the 20th day of March, 1964, and before the filing of this information at and in the County of Maricopa, State of Arizona, did then and there knowingly and designingly by false or fraudulent representation or pretense steal from CORNELL ROSS, United States Currency of the value of more than One Hundred Dollars ($100.00); * * (Emphasis Theirs.)

Holmes admitted that he received $1500 in cash from Ross, the complaining witness named in the information, receiving the money on 20 March 1964. Ross testified that the $1500 was a down payment on the purchase of a No. 6 Liquor License from Holmes. Holmes contended that the money was a down payment for the remodeling of the Ross Bar, The Antlers, the completion of the contract being contingent upon Ross securing a No. 6 License from Arizona’s Department of Liquor Licenses and Control, referred to herein as the Department.

THE MOTION FOR DIRECTED VERDICT

Before discussing the evidence, we desire to dispose of the Holmes contention that it was error to deny the Holmes motion for a directed verdict at the cióse [434]*434of the State’s case. It is noted that after the motion was denied, the defense presented evidence. The motion was not renewed at the close of all of the evidence. Under these circumstances the motion was waived. State v. Weis, 92 Ariz. 254, 375 P.2d 735 (1962) ; State v. Cousins, 4 Ariz. App. 318, 420 P.2d 185 (1966). The Cousins case was modified in other respects after the motion for rehearing. 4 Ariz. App. 468, 421 P.2d 901 (1967). Under the circumstances presented to us in connection with this appeal, the appeal is to be decided based upon the totality of the evidence presented at the trial. State v. Villegas, 101 Ariz. 465, 420 P.2d 940 (1966). Nevertheless, we have examined the evidence and find no error in the denial of the motion for directed verdict.

LIQUOR LICENSES

At the time in question the issuance of new liquor licenses was controlled by a quota system set out by the statute. Liquor licenses were referred to by a member, based upon the statutory definition of each type of license. There were three types of retailers’ licenses referred to at the trial. These were No. 6, No. 7, and No. 9. A No. 6 License was an “on-sale” license which authorized the holder of the license “to sell all spirituous liquors by individual portions and in the original containers.” This license authorizéd the sale of all types of alcoholic beverages for consumption on the premises and also authorized the sale of all types of alcoholic beverages in their containers. A No. 7 License was also an “on-sale” license. This license authorized the holder thereof “to sell wine and beer by individual portions and in the original containers.” - A No.''9 License was an' “off-sale” license which authorized the holder “to sell all .spirituous liquors” in their containers for consumption off of the premises.

THE EVIDENCE

Holmes having been convicted in the trial of this case in the Superior Court, we «review the evidence in the light most .favorable to sustaining the verdict. Had the jury agreed with the Holmes version of the transaction which he had with Ross, the jury would have rendered a verdict of not guilty. The jury, having found Holmes guilty, obviously agreed with the State’s version of the evidence. The trial court denied the Holmes motion for new trial. We recognize that there were some inconsistencies in the Ross testimony as well' as inconsistencies in the testimonv presented on behalf of the defense.

Prior to 1961 Ross lived in Pennsylvania and was foreman for Reynolds Metals. He and his family came to Arizona .in April of that year and he was again employed by Reynolds Metals. In April 1962 Ross purchased the Antlers, buying, the business as well as the No. 7 License therein. On 2 December 1963 he applied to the Department for a No. 6 License.

In February 1964 Elmer King, a member of the Arizona Legislature, was a customer at the Antlers. This place of business was within King’s legislative district. King learned that Ross had a pending application for a No. 6 License. At this point the testimony for the State and the testimony for the defense come into sharp conflict. Ross testified that King advised that he had a friend who was about..to reacquire a No. 6 License and that the friend would sell the license for $2500 of which $1500 was required as a down payment. The friend was Holmes, -also a member of the Arizona Legislature. King testified, that Ross expressed confidence that the application for the No. 6 License would be successful and that Ross wanted to increase the area of his place of business. King testified that his friend, who turned out'to be Holmes, was a licensed contractor and that he, King, would put . Holmes and Ross in touch with each other. - Holmes testified that King told him' that Ross, whom he had never ' met,' wanted ■ Holmes to undertake the construction of ■ the' modification of the building wherein •the business known as the Antlers was ■ conducted. King later introduced Ross to 'Holmes. • King testified that he heard- little [435]*435or none of their conversation.' The professional card which Holmes-gave to Ross at this first meeting did not identify Holmes as a contractor but identified him as a member of the Legislature. According to the testimony, Holmes did have a contractor’s license at that time. This was not disputed. During the years 1962 and 1963, Holmes was a member of a legislative committee which was working on the revision of the Liquor Laws.

Ross testified that Holmes agreed to sell him a No. 6 License which Holmes owned and was soon to be returned to him by another person. Ross testified that the statements made to him by Holmes were in substantial conformity with the information which Ross had received from King.

Ross testified that he told Holmes that Ross would have to borrow the money. Holmes first denied being so informed, but when asked whether he, Holmes, had previously stated under oath that Ross “said he would have to borrow the money” Holmes replied, “I might have said that.”

In corroboration of Ross’ statement that he borrowed the money, he testified as to the source of the loan, and his bank statement, which was introduced into evidence, carried a $2100 deposit on 18 March. The same statement disclosed a $1500 withdrawal on 20 March. There is no dispute that Holmes wanted cash and received 15 bills, each in the denomination of $100, on 20 March.

At the time of the transfer of the $1500 from Ross to Holmes, Holmes in- his own hand gave Ross a receipt'reading as fol-. lows:

“Receipt Date 3-20-1964 No. 1273
Received from Cornell Ross
address 600 W. Baseline Rd Tempe

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Related

State v. Ebner
616 P.2d 30 (Arizona Supreme Court, 1980)
State v. Holmes
472 P.2d 71 (Arizona Supreme Court, 1970)

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Bluebook (online)
465 P.2d 372, 11 Ariz. App. 433, 1970 Ariz. App. LEXIS 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holmes-arizctapp-1970.