State v. Holmes

CAMERON, J.,

concurs.

DONOFRIO, Presiding Judge (specially concurring).

'I differ with the majority opinion insofar as it might infer that the “corroborating circumstances” required by A.R.S. § 13-664, subsec. A apply to all elements of the crime. I believe it is only the specific element of the false pretense which must be corroborated and to which we must direct our attention.

. To constitute the crime of obtaining money by a false pretense with the intent to.defraud, four things must concur: (1) there must b.e an intent to defraud; (2) there must be an actual fraud committed; (3) false pretense or pretenses must be used for the purpose of perpetrating the fraud; and (4) there must be reliance by the victim on the offender’s fraudulent representations in parting with the property. 47 Cal.Jur.2d, Theft § 50 (1959).

In the-case at bar, the language of the statute clearly indicates that the fact which must be proven by corroborating circumstances. where there.is but one witness is the making of the false pretense, the third element, supra. Th statute does .not mention the other elements and therefore the requirement of corroboration does not apply to them.

Our statute, A.R.S. § 13-664, is substantially similar to California’s Cal.Pen.Code § 1110 (West 1956). California, courts have said, in construing § 1110, that the only corroboration required in a prosecution for theft by false pretenses, other than with respect to the testimony of an accomplice, is with reference to the making of the pretense. People v. Beilfuss, 59 Cal. App.2d 83, 138 P.2d 332 (1943), appeal dismissed Beilfuss v. California, 321 U.S. 746, 64 S.Ct. 529, 88 L.Ed. 1048 (1944). See 47 Cal.Jur.2d, Theft § 152 (1959). On this appeal, I do not deem pertinent to the issue created by the language of the statute the evidence recited to corroborate Ross’ testimony on facts other than the false representation. The instant case can be distinguished from cases of confessions. In those cases, the defendant’s confession of the crime without more will not support his conviction, i. e., there must be corroborating evidence of the corpus delicti. This safeguard, peculiar to the law of confessions, is based on the premise that confessions are an unreliable type of evidence. M. Udall, Arizona Law of Evidence § 179 (1960).

Due to the inherent vulnerability of a witness’s testimony regarding certain specific facts, corroboration of such testimony is required, in given situations, in order to sustain the burden of. proof. ; Carrying this from general principle to ■ the instant charge, it would appear that this vulnerability arises chiefly in relation to the witness’s testimony as to facts surrounding the false pretense which induced the witness to part with this large sum of. money. A mere misunderstanding by. a complaining witness of a representation, although completely honest on such wit- ■ ness’s part, is insufficient to support a con-; viction. Also, because of the frailties of' human nature, a person who has-lost prop-! *438erty may become prejudiced and may therefore easily misrepresent facts. To protect against this, the actual fact of the misrepresentation must be corroborated. Maseeh v. State, 46 Ariz. 94, 47 P.2d 423 (1935); Erickson v. State, 14 Ariz. 253, 127 P. 754 (1912).

I regard this as a close case in that there is no evidence other than from the lips of the complaining witness, Ross, of the false pretense that the defendant represented he owned or would reacquire a “No. 6” License which he was selling to Ross. Were it not for the wording of the receipt signed by the defendant that it was for “Personal service And in the event the service is not Rendered the full amount to be returned”, there would not be a scintilla of evidence or corroboration as to this false representation. The ownership of the license is the fact upon which the charge is bottomed since Ross denied any implication that he was employing the defendant to use his influence as a legislator to get a “No. 6” license.

The question then becomes whether, under the evidence, it can be reasonably inferred that by use of the words “for personal service” defendant was representing that he had a license which he was selling to Ross and for which he was charging him $1500, i. e., $1500 for this “service”. Whether there are corroborating circumstances is, in the first instance, a question of law and once corroborating circumstances appear, the weight to be given such evidence is for the trier of fact. 7 J. Wig-more, Evidence §§ 2056-59 (3rd ed. 1940) (dealing with uncorroborated accomplices). I will have to agree that although the receipt, standing alone, would fall far short of evidence necessary to sustain the conviction, it is sufficient, when all of the facts are considered, to raise the reasonable inference of the false pretense and therefore amounts to corroborative circumstances within the purview of A.R.S. § 13-664, subsec. A.