State v. Ross

485 P.2d 810, 107 Ariz. 240, 1971 Ariz. LEXIS 275
CourtArizona Supreme Court
DecidedJune 7, 1971
Docket2056
StatusPublished
Cited by13 cases

This text of 485 P.2d 810 (State v. Ross) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ross, 485 P.2d 810, 107 Ariz. 240, 1971 Ariz. LEXIS 275 (Ark. 1971).

Opinion

CAMERON, Justice.

This is an appeal from a verdict and judgment of guilty to the crime of grand *241 theft, § 13-661 and § 13-663 A.R.S., with two prior convictions, § 13-1649 A.R.S. Defendant was sentenced to a term of not less than twelve nor more than fifteen years in the Arizona State Prison.

On appeal we are called upon to determine:

1. whether a defense witness was improperly impeached by a felony manslaughter conviction which occurred 19 years before the trial,

2. whether the court erred in failing to give an instruction on specific intent to permanently deprive the owner of the property,

3. whether the court erred in failing to give an instruction on a lesser included offense of petty theft, and

4. whether the prior convictions were properly proven.

The facts necessary for a determination of the matter on appeal are as follows. The complaining witness testified that on 19 January 1968, at about 3:00 in the afternoon, she went to a bar on Buckeye Road in Phoenix, Arizona. She was alone and she had $65 in cash which she carried in her billfold. According to her testimony, at about 7:30 p. m. while she was standing at the bar, she took out her billfold to pay for some beer and the defendant grabbed her billfold:

“Q And what did you do after he grabbed your billfold?
“A Well, I was so excited, I grabbed him.
“Q You grabbed him?
"A Yes, I grabbed him. But it didn’t do no good.
“Q O.K., what did you do after you grabbed him?
“A He shrugged me loose from him.
******
“Q Did you see Mr. Ross leave the bar on that date?
“A Leave the bar?
“Q Yes.
“A Yes. He ran from the bar after we tussled you know. He got out.”

The defense introduced the testimony of Willie Mae Colter who testified that she saw the complaining witness in the bar at 7:00 or 7:30 p. m. and that the complaining witness was “half drunk” or “almost asleep”. On cross-examination the State attempted to impeach the defense witness by questions concerning her prior felony conviction for manslaughter.

The defendant was convicted by the jury of grand theft. The defendant denied the prior convictions and a separate hearing was held on the truth of the allegation of the prior convictions. The defendant was fingerprinted in court and an exemplified copy of prior sentences and fingerprint records from the Arizona State Prison were used to identify the defendant as the same person. The jury returned a verdict of guilty as to the two prior convictions.

WAS THE PRIOR FELONY CONVICTION TOO REMOTE FOR IMPEACHMENT PURPOSES ?

Prior to calling the defense witness, the defendant’s attorney made a motion in limine to prevent the County Attorney from impeaching the witness on the basis of a prior felony conviction for manslaughter which occurred 19 years before.

This court has pointed out that a prior felony conviction of 30 years can be too remote to impeach a witness:

“ * * * The general rule is that for the purpose of impeachment a showing may be made of prior conviction of a felony unless it is so remote that it cannot reasonably cast a reflection upon the witness’ credibility. There is no exact yardstick to measure the time that must elapse to blot out the relevancy of such former conviction; it is largely a matter of court discretion considering not only the time element but length of imprisonment, subsequent conduct, age and intervening circumstances. * * * ” Sibley v. Jeffreys, 76 Ariz. 340, 345, 264 P.2d 831, 833, 834 (1953).

*242 We might add that in addition to considerations stated above by Justice Windes in determining the remoteness of the prior conviction, the court may also consider the nature of the prior offense. A prior conviction for manslaughter does not necessarily indicate that the witness is untruthful. We feel that in the instant case it was error to allow a 19 year old conviction for manslaughter to be used to impeach a witness testifying as the witness did in this case. We have, however, reviewed the testimony of the witness and we feel that there was no reasonable probability under the facts that the verdict might have been different even if her testimony was not impeached by the prior 19 year old conviction for manslaughter. Although she testified that the complaining witness was “half drunk” or “half asleep”, the rest of her testimony was mainly negative —that she did not sec the defendant Ross take the wallet, for example. We believe from the record that the error was harmless beyond a reasonable doubt and therefore not reversible. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); § 13-1598 A.R.S.; State v. Deschamps, 105 Ariz. 530, 468 P.2d 383 (1970); State v. McGonigle, 103 Ariz. 267, 440 P.2d 100 (1968), rehearing State v. Allen 105 Ariz. 267, 463 P.2d 65; State v. Hunt, 8 Ariz.App. 514, 447 P.2d 896 (1968).

SHOULD THE COURT HAVE GIVEN AN INSTRUCTION ON SPECIFIC INTENT?

The court instructed the jury in part as follows:

“ ‘Theft is feloniously stealing, taking or carrying away the personal property of another. Grand Theft is theft of money or property from the person of another.’
“Now, ladies and gentlemen, to constitute a crime there must be combination of an act forbidden by law, and an intent to do the act. Intent may be inferred from the defendant’s voluntary commission of an act forbidden by law, and it is not necessary to establish that the defendant knew his act was' a violation of law.”

The defendant requested an instruction on specific intent which was refused. Defendant claims that it was error not to instruct the jury that the crime of theft “requires a specific felonious intent to permanently deprive the owner of his property.” It is true that “intent to permanently deprive the owner of his possession is an essential ingredient of grand theft”, Whitson v. State, 65 Ariz. 395, 181 P.2d 822 (1947); State v. Cravin, 96 Ariz. 346, 395 P.2d 706 (1964), and that a defendant is entitled to an instruction on his theory of the case if reasonably supported by the evidence. State v. Randolph, 99 Ariz. 253, 408 P.2d 397 (1965); State v. Reynolds, 11 Ariz.App. 532, 466 P.2d 405

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Bluebook (online)
485 P.2d 810, 107 Ariz. 240, 1971 Ariz. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ross-ariz-1971.