MOLLOY, Judge.
This is an appeal from a conviction of theft by embezzlement of a car rented by the defendant from a car-rental agency.
The defendant entered into a rental contract with "Econo-Car of Tucson" on July 15, 1966, of a 1966 Plymouth Belvedere. The written contract provided that the car would be returned "Not later than: 7/25/66 2:30 PM." There was no deposit paid on the rental, the defendant's credit being accepted by the rental agency on the basis of a credit card issued by another car-rental system. The written contract indicated the car was to be used in the States of Arizona and California only.
When the car was not returned as provided by the contract, the rental agency went to the address given by the defendant and found he had moved from that address a day or two after renting the car without leaving a forwarding address. No further information as to the whereabouts of the car or the defendant was had until the car was found abandoned on the streets of Lawton, Oklahoma, on September 9, 1966.
The statute under which the defendant was charged provides that a person is guilty of theft by embezzlement who "[h]as leased or rented a motor vehicle * * * and who fraudulently fails to return the motor vehicle * * * to its owner within ten days after the lease or rental agreement has expired." (Emphasis added.) A.R.S. § 13-682(4) (as amended).
The defendant took the stand in his own defense. He testified that, when he rented the car, he was a week behind on the rent for the house he was occupying in Tucson, and that, within a day or two after renting this motor vehicle, he drove it to Fort Worth, Texas. He remained in Fort Worth until the middle of August, and then moved to Wichita Falls, Texas. He continued to use the car, though his wife
Numerous assertions of error are raised. Several of such assertions overlap and others are not argued. As to the latter, we regard the failure to argue the assertion to be an abandonment, State v. Bird, 99 Ariz. 195, 407 P.2d 770 (1965), cert. denied 384 U.S. 1025, 86 S.Ct. 1977, 16 L.Ed.2d 1030 (1966). Of the assertions of error which are argued, we believe they may be disposed of by answering five fundamental questions.
IS THE WORD "FRAUDULENTLY" SUFFICIENTLY DEFINITE IN MEANING?
The contention is made that either the subject statute is rendered unconstitutionally vague by the use of the word "fraudulently" or else there is a failure of proof in that there is no showing of the nine classic elements of fraud, i.e., a misrepresentation with knowledge of its falsity, et cetera. See Poley v. Bender, 87 Ariz. 35, 39, 347 P.2d 696, 698 (1960).
Constitutional parameters permit the legislature wide discretion in selecting conduct to be penalized by criminal sanctions. The determination that an act alone, without criminal intent, shall constitute a crime is within this power. Borderland Construction Co. v. State, 49 Ariz. 523, 68 P.2d 207 (1937).
In evaluating constitutionality:
and see State v. Krug, 96 Ariz. 225, 393 P.2d 916 (1964); and State v. Locks, 91 Ariz. 394, 372 P.2d 724 (1962).
In the case of the instant statute, the act selected for possible sanction is at least as definite and certain as the average criminal statute. The actus reus is the failure to return a rented vehicle within ten days after the rental agreement has expired. If this statute fails for indefiniteness, it is in the expression of the mental state, or mens rea, which is designated as being a necessary element.
That the words selected by the legislature to describe this criminal intent are not inappropriate in an embezzlement statute is indicated by general law:
See also 29A C.J.S. Embezzlement § 11, at pp. 27-28; 26 Am.Jur.2d Embezzlement § 19, at 570 and § 22 at 572.
These encyclopedic generalizations digest a myriad of decisions which make use of the word "fraudulent" or "fraudulently" in referring to the intent which must accompany an act of embezzlement. If the embezzlement statute itself does not expressly
This is not always true, however, for in State v. Prince, 52 N.M. 15, 189 P.2d 993 (1948), a new embezzlement statute was struck down as unconstitutional because it omitted from its context the word "fraudulently." The former embezzlement statute, which included this word in its definition, was held to be still effective in that state. The reason given by the court for holding the new statute to be unconstitutional was that the omission of the word "fraudulently" rendered the statute "* * uncertain in its meaning, vague and indefinite." (189 P.2d at 995.) We thus have the highest appellate court of a sister state solemnly adopting the antithesis of the defendant's contention here.
A reading of many cases dealing with the crime of embezzlement will indicate that the courts often use the words "fraudulently" and "fraudulent intent" as synonyms for "criminal intent." See, e.g., Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 250, 96 L.Ed. 288 (1952); United States v. Ludwig, 177 F.Supp. 365, 367 (E.D.Pa. 1959); People v. Ranney, 213 Cal. 70, 1 P.2d 423 (1931); People v. Riggins, 148 N.E.2d at 452; Commonwealth v. Shilladay, 224 S.W.2d at 687; and State v. Hanna, 356 P.2d at 1048.
When the law attempts to define a state of mind, neither psychiatry, nor law permits precision. Cf. State v. Cano, 103 Ariz. 37, 436 P.2d 586 (1968). In determining degree of certainty required by due process, the courts should take into account the legislature's difficulty in expressing particular concepts. Cf. Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948); 21 Am.Jur.2d Criminal Law § 17, at 98; 22 C.J.S. Criminal Law § 24(2), at pp. 62-74.
No case has been called to our attention which has struck down a statute because a necessary element of the crime is "criminal intent," "feloniously" or "fraudulently." If such statutes be unconstitutional, then the whole structure of our criminal law is in jeopardy. Our law has never settled on a definite connotation for "criminal intent" or "mens rea," regarded by most publicists as an essential of "all true crime." Perkins, A Rationale of Mens Rea, 52 Harv.L.Rev. 905, 909 (1939). Compare Burdick, Law of Crime § 129, at 153; Hall, General Principles of Criminal Law, ch. III (2d ed. 1960); 1 Russell on Crime, at 31-36 (12th ed. Turner 1964); and see State v. Cutshaw, 7 Ariz.App. 210, 437 P.2d 962 (1968), note 13.
Some courts have taken the view that the intent necessary to constitute the crime of embezzlement is the same animus furandi as that required for larceny. State v. Holdren, 143 Mont. 103, 387 P.2d 446 (1963); State v. Hanna, 356 P.2d at 1047. This court recently held that the intent to permanently deprive the owner of his property was a necessary element of grand theft. State v. Wood, 7 Ariz.App. 22, 435 P.2d 857 (1967).
However, we believe there is a fundamental difference between the crime of larceny and embezzlement that creates a difference in the intent required to constitute the crime. Historically, larceny and embezzlement have separate origins. The first is a common-law crime, 32 Am.Jur. Larceny § 2 at 882; 52 C.J.S. Larceny § 1, at p. 779; while the latter is a creature of statute. 26 Am.Jur.2d Embezzlement § 1, at 549; 29A C.J.S. Embezzlement § 2, at p. 4. The gist of the crime of embezzlement is a breach of trust. State v. Russell, 265 S.W.2d 379, 44 A.L.R.2d 617 (Mo.
It seems very evident here that the legislature did not mean to select an intent to permanently deprive as the critical state of mind. The language selected ("* * fails to return * * * within ten days * * *.") would become largely meaningless if this provision be so construed and this is made particularly clear when a complementary statute is considered:
In common usage, the word "fraud" encompasses much more than the tortious fraud known to the bench and bar:
and see People v. Casagranada, 43 Cal.App.2d 818, 111 P.2d 672 (1941); and People v. Simmons, 12 Cal.App.2d 329, 55 P.2d 297 (1936).
In writing this statute, the legislature selected a word not uncommon in the English language. As with any other word, individuals may differ as to the exact meaning they ascribe to this word in this context, but meanings given by reasonable persons with average facility with our language will have common ground in concepts of "cheating," "tricking" and "wrongfully depriving" an owner of property. As we have seen, the judiciary customarily uses as tools of its trade verbiage with no more definite a meaning. We see no more need to particularly define this word "fraudulently" in jury instructions than to define "criminal intent," which courts consistently tell juries is indispensable for conviction.
We hold the statute is sufficiently clear to meet due-process standards and that no fundamental error was committed by the court's failing to define the word "fraudulently" for the jury.
WAS THERE SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION?
The defendant attacks the sufficiency of the evidence on several bases. In evaluating such contentions, this court must take the evidence in the light most favorable to upholding the jury verdict rendered below. State v. Baker, 100 Ariz. 339, 414 P.2d 153 (1966).
Initially, we find sufficient evidence for the jury to have found that the defendant "fraudulently" failed to return this vehicle. Once the State had produced evidence showing the defendant had left the residence address given to the car-rental agency without leaving a forwarding address, and that the car was not returned within the time limit set by the statute but was abandoned in Lawton, Oklahoma, outside of the area to which the contract of rental restricted its use, we hold the State had established a prima facie case sufficient to go to the jury on the issue of fraudulent intent. State v. Russell, 265 S.W.2d 379, 382, 44 A.L.R.2d 617 (Mo. 1954); and see 29A C.J.S. Embezzlement § 11, at p. 28.
The explanation given by the defendant does not conclusively refute this prima face case. In some regards, his testimony reinforces the State's case. His
The defendant challenges the sufficiency of proof insofar as showing that "Econo-Car International, Inc. of Tucson" was a legal entity capable of owning this automobile. The defendant relies upon Phelps v. State, 25 Ariz. 495, 219 P. 589 (1923), in which our Supreme Court held, in an embezzlement prosecution, it was essential to allege and prove that the alleged victim of that offense, Yellow Jacket Taxi Company, was a corporation or other entity capable of owning property. (25 Ariz. at 504, 219 P. 589.)
Phelps is distinguished, questioned but not overruled, in Gibbs v. State, 37 Ariz. 273, 277, 293 P. 976, 74 A.L.R. 1105 (1930). Since Phelps, our Supreme Court has adopted a complete new set of rules for criminal procedure, and the State is operating under a new "theft" statute, A.R.S. § 13-661 et seq., patently intended to eliminate technical defense. See State v. Bradley, 3 Ariz.App. 70, 412 P.2d 67 (1966). In the new rules, provisions pertaining to variance and amendment were materially liberalized. Of particular interest is the following:
In view of this rule and many other provisions in these rules which indicate a desire to eschew formalism, see particularly Rules 109-153, 17 A.R.S., it is our opinion that Phelps no longer represents the law of this state.
At the time of the enunciation in Phelps, there was a split of authority in this country on this subject. In a compilation of annotations of case law, Arizona was listed by reason of Phelps, as being in that column which followed old English law:
At the time of this annotation there was a substantial body of law taking a contrary view. See Annot., 88 A.L.R. 488, 490, and 493.
Since Phelps, the majority of decisions interpreting rules of criminal procedure similar to our own hold that the old formalistic rule is no longer pertinent and that it is usually not necessary to allege or prove corporate existence or the ability to own property on the part of an alleged victim in a larceny or embezzlement. The following is illustrative of this view:
To the same effect are: People v. Torp, 40 Cal.App.2d 187, 104 P.2d 542, 544 (1940); State v. Jackson, 411 S.W.2d 129 (Mo. 1967); State v. Sims, 395 S.W.2d 445 (Mo. 1965); State v. Colasanti, 216 A.2d 700 (R.I. 1966); contra, Sippio v. State, 227 Md. 449, 177 A.2d 261 (1962); State v. Thornton, 251 N.C. 658, 111 S.E.2d 901 (1960).
Under the allegations of this information, there is no confusion as to the identity of the motor vehicle which the defendant is charged with having embezzled from "Econo-Car International Inc. of Tucson." The proof is uncertain as to whether this was a separate corporation or merely a trade name under which an individual by the name of Earl J. Mort did business. As to ownership, Mr. Mort testified that the car in question was one he had leased from "* * * Chrysler leasing corporation. * * *" But, whoever or whatever owned this automobile, it is crystal clear that the defendant did not and that this charge relates to a particular motor vehicle which he rented from a lessor doing business under the name indicated in the information. We hold that if there was a variance from the information or a failure of proof, it was as to matters basically immaterial.
The defendant further complains there is no evidence in this record of the value of the subject vehicle. Applicable statutes provide that the punishment of "theft by embezzlement" shall be the same as for theft of property, A.R.S. § 13-688, and that theft of any motor vehicle shall be punished as "grand theft," a felony. A.R.S. § 13-663. In view of these statutes, we see no necessity to prove the value of this vehicle.
HAD THIS LEASE "EXPIRED" MORE THAN TEN DAYS PRIOR TO THE FILING OF A CRIMINAL COMPLAINT?
The lease agreement provided that in the event the rentee should fail to return the vehicle within six hours after return date, his "liability" would continue at the rate of $20 per day plus mileage. When the car was recovered by the rental agency after being found abandoned in Lawton, Oklahoma, the rental agency computed the amount owing on the rental, in accordance with its standard charges, based on weekly, daily and hourly rates, which were less than $20 per day. This computation was taken to the date of the actual return of the vehicle to Tucson, Arizona, on September 19, 1966.
From these facts, the defendant argues that this rental agreement did not "expire" until September 19, 1966, and that the complant was filed before the lease expired.
DOES ARIZONA HAVE JURISDICTION OVER THIS OFFENSE?
The defendant questions whether "venue" was properly laid in Arizona. No citation of authority is given, but the argument is made:
Generally, the State of Arizona has no jurisdiction over offenses committed outside of its territorial limits. 21 Am.Jur.2d Criminal Law § 383, at 403-04; 22 C.J.S. Criminal Law § 133, at p. 353; and see State v. Jacobs, 93 Ariz. 336, 380 P.2d 998 (1963). However, it is also generally accepted that if the requisite elements of the crime are committed in different jurisdiction, any state in which an essential part of the crime is committed, may take jurisdiction, 21 Am.Jur.2d Criminal Law § 385, at 404, and this is particularly true as to the state in which the crime is consummated. 22 C.J.S. Criminal Law § 133b, at p. 355. See Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255, 5 A.L.R.3d 879 (1963), and cases cited therein.
As we have seen, the essence of the crime of embezzlement is a breach of trust. The right of the legislature to make the offense of embezzlement punishable where the bailment occurred has been upheld. Richburger v. State, 90 Miss. 806, 44 So. 772 (1907); People v. Smith, 2 Misc.2d 344, 153 N.Y.S.2d 150 (1956). In this case, the legislature has carefully selected as the actus reus the failure to return the leased chattel thus clearly selecting something which negatively occurred
DID THE TRIAL COURT COMMIT REVERSIBLE ERRORS IN THE ADMISSION OR REJECTION OF EVIDENCE?
The defendant complains of the failure to strike testimony admitted without objection from detectives of the Wichita Falls, Texas, and Lawton, Oklahoma police departments on the basis that this testimony did not relate to the particular automobile which is the subject of this criminal information. We find no merit to this contention. An examination of their testimony makes it clear that they were testifying as to the rented car.
The defendant complains of the admission into evidence of computations placed upon the original contract between the defendant and the car-rental agency after the defendant had signed the contract. These figures indicated a total of $1,334.88 was owing and unpaid by reason of this rental. It was established in the evidence that this computation was placed upon this contract in the ordinary course of business of the rental agency and that the notations were made at the time of the occurrence of
The defendant complains his counsel was unreasonably limited in cross-examination. On one occasion, counsel was not permitted to cross-examine in a certain factual area, but subsequently, substantially the same question was asked again and answered by the witness. Under these circumstances, we see no reversible error. State v. Musgrove, 2 Ariz.App. 505, 410 P.2d 127 (1966), cert. denied 385 U.S. 979, 87 S.Ct. 524, 17 L.Ed.2d 441 (1966).
In a hearing outside the presence of the jury on voluntariness of the admissions made by the defendant to the Wichita Falls detective, the defendant's counsel was not permitted to elicit from the witness the substance of the purported admissions but only to cross-examine this witness on the circumstances giving rise to any such admissions.
It has been held in other jurisdictions that cross-examination of state's witnesses at such preliminary examination is limited to the issue of voluntariness of the defendant's statements sought to be admitted. Ah Fook Chang v. United States, 91 F.2d 805 (9th Cir.1937); Silliman v. People, 114 Colo. 130, 139, 162 P.2d 793 (1945); State v. Hashimoto, 46 Haw. 183, 377 P.2d 728 (1962); Wells v. State, 236 Md. 381, 203 A.2d 912 (1964). See also 29 Am.Jur.2d Evidence § 585, at 641-43. In the first three cited cases, the trial court's refusal to allow cross-examination on or examination of the contents of a defendant's confession was upheld on appeal, the view being expressed that the contents of such statements are not material to the question of voluntariness.
A defendant's right to wide latitude in cross-examination is the rule in this jurisdiction, State v. Holden, 88 Ariz. 43, 352 P.2d 705 (1960), subject to the bounds of judicial discretion. State v. Carter, 1 Ariz.App. 57, 399 P.2d 191 (1965). This right of cross-examination is equally applicable to a preliminary examination as to voluntariness of a defendant's statement. State v. Jones, 253 Iowa 829, 113 N.W.2d 303 (1962); State v. Longmore, 178 Neb. 509, 134 N.W.2d 66 (1965).
We decline to give blanket endorsement to the law from other jurisdictions holding that there is no right in a voluntariness hearing to inquire into the nature of the purported admission. We conceive that often the tenor and form of the admission may give some clue as to whether it was voluntarily made. However, we find no reversible error here. After the voir dire examination in the absence of the jury, the purported admissions of the defendant were detailed to the jury, and full cross-examination of the witness was allowed. No additional facts showing involuntariness were developed at this time. Absent prejudice, we will not reverse. Art. 6, § 27, Ariz.Const., A.R.S.
WAS THE DEFENDANT DEPRIVED OF A FAIR TRIAL BECAUSE THE TRIAL JUDGE HELD CONFERENCES AT THE BENCH?
Conferences held at the bench between the court and trial counsel were sometimes reported by the court reporter and sometimes not. At one time during the proceedings, defendant's counsel objected to this procedure, but subsequently participated in such conferences without further objection. There is no suggestion that there was any offer of proof or any objection posed to the admission of evidence which occurred at these conferences which was not reported. Under these circumstances, we see no prejudicial error and refuse to reverse under the above-cited provision of the Constitution.
Judgment affirmed.
HATHAWAY, C.J., concurs.
I dissent. I cannot agree with the view of the majority opinion.
This appeal presents for our review the defendant's conviction of embezzlement, charged in the information as follows:
The constitutional validity of A.R.S. § 13-682(4) was timely attacked in the trial court by a motion to dismiss the information, with no success. In the trial court, as well as on appeal, the defendant argued that the statute is "void for vagueness." The defendant predicates his claim of unconstitutionality on the vagueness of the word "fraudulently."
Due process of law is denied if a statute forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. State v. Cota, 99 Ariz. 233, 408 P.2d 23 (1965); Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). A statute must be definite enough to provide a standard of conduct for those whose activities are proscribed as well as a standard for the ascertainment of guilt by the courts called upon to apply it. Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948).
A statute, however, will be upheld if its terms may be made reasonably certain by reference to the common law or to its legislative history or purpose. See, Connally v. General Construction Co., supra. It likewise will be upheld, despite the fact that the acts it prohibits are defined in vague terms, if it requires an adequately defined specific intent. People v. Building Maintenance Contractors' Association, 41 Cal.2d 719, 264 P.2d 31 (1953). A court, however, may not supply the definitions necessary to render a deficient statute valid. State v. Locks, 97 Ariz. 148, 397 P.2d 949 (1964); Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); People v. McCaughan, 49 Cal.2d 409, 317 P.2d 974 (1957).
The Supreme Court of the United States, in United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200 (1952), referred to the vice of vagueness in criminal statutes as:
A statutory command or prohibition in the creation of new crimes, therefore, should be very definite and easily understood by the common man. State v. Menderson, 57 Ariz. 103, 111 P.2d 622 (1941); State v. Cota, supra.
The subject statute proscribes "fraudulently failing to return a leased motor vehicle" within a specified period of time after expiration of the lease. But what is meant by "fraudulently?" The definitions adopted by courts across the country are as numerous as the courts themselves. The California courts have stated:
People v. Casagranada, 43 Cal.App.2d 818, 111 P.2d 672, 675 (1941); People v. Simmons, 12 Cal.App.2d 329, 55 P.2d 297, 299 (1936).
In People v. Swenson, 127 Cal.App.2d 658, 274 P.2d 229, 233 (1954), the word
In Rick v. United States, 82 U.S.App. D.C. 101, 161 F.2d 897 (1947), the word "fraudulent" was described as including an intent and involving a subject matter of which someone is to be deprived. In the case of State v. Patterson, 66 Kan. 447, 71 P. 860 (1903), the word "fraudulently" in an information alleging that the defendant did fraudulently embezzle and convert to his own use certain money was held to relate specifically to the defendant's intent in converting the city's money to his own use. (71 P. at 861).
In Raney v. State, 105 Tex.Cr.R. 608, 290 S.W. 179 (1927), the appellate court approved the trial court's definition of "fraudulent taking" as meaning the person taking the property knew at the time that the property was not his own, that the property was taken without the consent of the owner and that the property was taken with the intent to deprive the owner of the value of it and to appropriate it to the use or benefit of the person taking.
The Utah Supreme Court, in the case of State v. Bland, 93 Utah. 384, 73 P.2d 964 (1937), concluded that the word "fraudulent" in a statute prohibiting the fraudulent use of a false or fictitious name was inserted in the statute "so that persons who habitually used a fixed pseudonym would not be held guilty of a felony." The court stated:
In State v. Reinke, 147 S.W.2d 464 (Mo. 1941), where the word "fraudulently" was used in an instruction in a first degree robbery case, the court held:
See also, State v. Yell, 104 N.H. 87, 178 A.2d 289 (1962).
In State v. Harris, 313 S.W.2d 664 (Mo. 1958), the Supreme Court of Missouri held that the words "feloniously and fraudulently" were not of similar import to the statutory term "intent to defraud." In arriving at this conclusion, the court analyzed the difference as follows:
From this heterogenous mass of judicial definitions of "fraudulently," it becomes obvious that a layman would encounter nothing but confusion were he to attempt to work out his own definition of the word. Without knowledge of the meaning of the
And,
I find no merit in this argument. As previously indicated, it is not our function to supply definitions necessary to validate a defective statute. State v. Locks, supra. Furthermore, the legislative history of the subject statute indicates that the legislature may have intended the word "fraudulently" to mean something other than "willfully."
In 1958, a bill (S.B. 217) was introduced to the state senate which, in substance, proscribed the act of "willfully and intentionally" failing to return a leased motor vehicle within a specified period of time after expiration of the lease. The bill was subsequently amended, after submission to legislative committees, by deletion of the words "willfully and intentionally" and substitution therefor of the word "fraudulently." This bill was not enacted into law by the 1958 legislature.
In 1959, it was introduced in the House of Representatives as House Bill 224, the pertinent part of which stated that a person is guilty of theft by embezzlement who:
The bill was amended to include equipment or tools, and in such amended form was enacted into law. Laws 1959, ch. 55, § 1. It would thus appear that the meaning of the word "fraudulently" was not intended to be synonymous with "willfully and intentionally."
In view of the problem concerning the meaning of the word "fraudulently," I cannot hold that the statute under which the information in this case was filed is definite and certain enough to permit this conviction to stand. The judgment of the lower court should be reversed and the case dismissed.
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