Volume 25 — Arizona Reports

<p>1. Statutes — Whether Act Expressed Proper Title Held Immaterial, Where Act Enacted Previous to Adoption of Present Constitution. — Whether the title under whieh Penal Code of 1913, section 282, was passed by the legislature conformed to the requirements of the present Constitution is immaterial, as against the contention that it is unconstitutional as violating Constitution, article 4, section 13, since the Constitution was not in existence at the time of the passage of the act.</p> <p>2. Infants — Information, Alleging Commission of Specific Lewd Acts With Child, Held Sufficient. — An information, specifically naming and alleging the commission by accused of the lewd acts with a child constituting the crime referred to in Penal Code of 1913, section 282, held sufficient.</p> <p>8. Criminal Law — Court’s Charge not Disturbed, in Absence of Bequest for Particular Instruction. — Where the charge of the court given on its own motion is sufficiently full and complete, it will not be disturbed by the appellate court, in the absence of a request having been made for particular instructions.</p> <p>Bight to convict for several offenses growing out of the same facts, see note in 31 L. B. A. (N. S.) 693.</p> <p>See 16 C. J., p. 1056; 17 C. J., pp. 254, 339, 342, 349; 31 C. J., pp. 861, 998; 36 Cyc. 1017.</p> <p>4. Criminal Law — Charge Omitting Element of Age Held not Prejudicial, Where Age not in Issue. — Since under Civil Code of 1913, paragraph 515, instructions are to be given only upon controverted questions of fact, where the lewd aets committed by accused constituted a crime under Penal Code of 1913, section 282, if committed upon a child under the age of fourteen, accused could not have been prejudiced by a charge which omitted the element of age, where the age of the person was undisputedly eleven years, and not in issue.</p> <p>5. -Criminal Law — Harmless Erroneous Instruction not Ground for Reversal. — An instruction, however, erroneous, whieh does not harm the party complaining of it, is not ground for reversing a judgment, and hence an instruction in a prosecution for lewd acts with a child, charging that the character of the offense to justify conviction must be unnatural, could not prejudice aeeused, where the prosecution, in order to make a case, was not required, under the statute, to prove that the aets were unnatural.</p> <p>6. Criminal Law — Incorrect Instruction Held not Reversible Error. — An instruction, in a prosecution for committing lewd aets with a child, that defendant must be convicted of the one act alleged in the information, and relating to proof of other offenses, though incorrect, held not reversible error.</p> <p>7. Criminal Law — Determination of Pacts from Evidence Adduced Held for Jury. — Where, in a prosecution for committing lewd aets with a child no direct evidence existed of the particular acts charged except the testimony of the complaining witness, but her testimony was corroborated with respect to the lecherous attitude of accused to her, tending to a disposition on his part to commit the offense, it was the function of the jury to determine what the facts were from the testimony of the witnesses examined; and, where there was substantial evidence to support the verdict, it will not be disturbed.</p> <p>8. Infants — In Prosecution for Lewd Acts With Child, Testimony as to Condition of Child’s Private Parts Held Irrelevant.- — In a prosecution for committing lewd acts with a child, a physician’s testimony as to condition of the child’s private parts was not relevant to the offense charged.</p> <p>9. Indictment and Information — Lesser -Crime may be Included Within Greater Crime. — It is no anomaly of the law to find a lesser crime included within a greater.</p>

<p>1. Judgment — Default Judgment Against Japanese Properly Vacated on Showing That Defendants and Their Attorney Did not Understand Each Other. — Default judgment on notes against Japanese defendants held properly set aside under Civil Code of 1913, paragraph 600, on showing of meritorious defense and that defendants and their attorney did not understand each other; defendants having little knowledge of the English language and the laws.</p> <p>2. Appeal and Error — Judgment—Setting Aside Default Discretionary and not Ordinarily Reversed. — Setting aside default judgment for trial on merits is discretionary, and such a discretion will not be reversed on appeal except in case of abuse or arbitrariness.</p> <p>See 4 C. J., p. 840; 23 Cyc. 895, 934. 1921. Service of summons upon defendants was had in Maricopa county on November 22d. December 13th, the defendants failing to appear and answer, plaintiff applied to the clerk of the court to enter their default, which was done, and on the same day the court took evidence and formally entered judgment against the defendants for the full amount of plaintiff’s demand. January 17, 1922, the defendants, through their attorney, made application to the court to vacate and set aside the default judgment. This application or motion was supported by the affidavit of such attorney, and was to the effect that in 1919 defendants had leased from Kortsen and one Laura Haigler 160 acres of farming land, and made and delivered to Kortsen the three notes sued on as part payment for the rental of the second year of such lease; that at the beginning of the second year of said lease defendants were notified and required by Haigler, who was the owner of the leased premises, to quit the same immediately, which they did; that Haigler, who had also been given notes for her part of the second year’s rent, when defendants surrendered possession of the premises, canceled and returned to defendants her said notes; that the Haigler and Kortsen notes were in payment of rent for the second year of the lease; that the premises were surrendered by defendants upon the request of the lessors Haigler and Kortsen; and that the notes sued on were past due when assigned to plaintiff.</p>

<p>1. Appeal and Error — Failure to Make 'Contractor a Party in Suit to Foreclose Mechanic’s Lien Held not Assignable as Error Where Objection not Made Below. — In an action by a subcontractor to foreclose a mechanic’s lien against owner of property improved, the failure of plaintiff to obtain service upon the original contractor and his nonappearanee, held not assignable as error on appeal, where no objection was made in the court below.</p> <p>2. Mechanics’ Liens — Though Owner Need Pay Only Reasonable Value and is not Bound by Agreed Price Between Contractor and Lien Claimant, Such Price is Prima Facie Correct. — Under Civil Code of 1913, paragraph 3639, relating to mechanics’ liens, an owner may not be compelled to pay more than the reasonable value of labor or materials furnished, and is not bound by the agreed price between the contractor and the lien claimant, but such agreed price may be taken as prima facie correct.</p> <p>3. Mechanics’ Liens — Plumbing Material Proper Subject for Lien — “Plumbing Material.” — The material used in a plumbing job is understood in a general way to mean such articles as gas, sewer and water pipes, sinks, bathtubs, etc.; such articles being proper subjects for a mechanic’s lien contemplated by Civil Code of 1913, paragraph 3639.</p> <p>4. Mechanics’ Liens — Lien Notice Held to Comply With Statute. A statement of the terms given and conditions of the contract contained in a notice of lien, to the effect that plaintiff subcontractor was to install all plumbing and furnish all material in the construction of plaintiff’s home for the lump sum of $372, to be paid ou the completion of the job, and giving the lot number and description, designating the owner thereof, and giving the name of the contractor, held a sufficient compliance with Civil Code of 1913, paragraphs 3640, 3641; the omission in the notice to itemize the different articles going into the job and days of labor consumed not being necessary where the contract was between the contractor and plaintiff subcontractor to be paid for not as furnished or rendered, but as a whole.</p> <p>5. Mechanics’ Liens — Statute Relative to Notice Does not Require “Account.” — Civil Code of 1913, paragraph 3640, stating wliat a notiee of mechanic’s lien shall contain, does not require the notiee to contain an “account” of the demand, but if the statute means that the notice must contain an account of the demand, a statement of the terms, time given and conditions of the contract to the effect that plaintiff subcontractor was to install all plumbing and furnish all materials for the lump sum of $372 to be paid on the completion of his contract, is not insufficient, though it is not an account, sinee it affords notice to the owner and public.</p> <p>See 3 C. J., pp. 766, 987; 27 Cye. 45, 96, 121, 211, 122, 407, 418.</p> <p>6. Mechanics’ Liens — Terms Used in Notice Describing Improvement Held Immaterial. — A notiee of lien provided for in Civil Code of 1913, paragraph 3640, is not uncertain as to what the claim of lien is upon, where the notice described the improvement as “building” in one place, “a certain building, improvement or structure” in another, sinee, under paragraph 3644, the fact that a lot has buildings or improvement on it other than those against which the lien is claimed cannot affect the lien, for whatever is on the lot would, under paragraph 3644, be a part of the realty and become subject to the lien.</p> <p>7. Mechanics’ Liens — Subcontractor has Burden of Proving Reasonable Value. — The burden of proving reasonable value, when controverted, falls upon the subcontractor.</p> <p>8. Appeal and Error — As Against Owner, Subcontractor Held to have Met Burden of Proving Reasonable Value of Labor and Material for Which Lien Claimed. — Where, in an action by plaintiff’s subcontractor against defendant owner to foreclose plaintiff’s mechanic’s lien as provided in Civil Code of 1913, paragraphs 3639-3663, plaintiff proved the contract price, the wholesale value of the material used, and the scale of wages paid for the labor, but defendant failed to cross-examine plaintiff or introduce contradictory evidence and the question of insufficiency of evidence to establish reasonable value of labor and material was not included in the motion for new trial or otherwise objected to, held, plaintiff sustained the burden of proof of reasonable value.</p> <p>9. Mechanics’ Liens — Statute Held to Confer on Subcontractor Right to Mechanic’s Lien, Though Work Done by Employees. Sinee Civil Code of 1913, paragraph 3639', provides that any firm or corporation is given the same right to a mechanic’s lien as “any person . . . who may labor,” and since a firm or corporation can only act through its ofiieers or employees, the legislature must have intended to give the same right to a contractor or subcontractor to file a lien for labor furnished by him through employees.</p>

<p>1. Railroads — Complaint Held not Demurrable. — In action for injury to plaintiff’s automobile at railroad crossing, by train backing into it after driver had been told by brakeman to stop, and brakeman was unable to stop the train because the air-hose was not coupled, complaint held, not demurrable.</p> <p>2. Trial — Error in Overruling Motion for Instructed Verdict Held Waived. — Error in overruling defendant’s motion, at close of plaintiff’s case, for instructed verdict for failure of proof, was waived, where defendant did not rest when the motion was overruled, but proceeded to introduce evidence.</p> <p>3. Trial — On Motion for Instructed Verdict, Evidence Viewed Favorably to Opposing Party. — In considering defendant’s motion for instructed verdict at close of the whole case for failure of proof, the court should appraise the evidence at its highest value in favor of plaintiff.</p> <p>4. Railroads — Contributory Negligence of Automobile Driver Held for Jury. — In action for injury to plaintiff’s automobile at railroad crossing, by train backing into it after driver had been told by brakeman to stop, and brakeman was unable to stop the train because air-hose was not coupled, contributory negligence of the automobile driver held for the jury.</p> <p>6. Evidence — Statement oe Brakeman After Grossing Accident Held Admissible as Part of Res Gestae. — In action for injury to plaintiff’s automobile at railroad crossing, by train backing into it after driver had been told by brakeman to stop, and brakeman was unable to stop the train because air-hose was not coupled, a statement of the brakeman directly after the collision that he could not stop the train because the brakes were not connected up held admissible as part of the res gestae.</p> <p>6. Evidence — Statement Held not Admissible, not Being Relevant to Main Transaction. — In action for injury to plaintiff’s automobile at railroad crossing, by train backing into it after driver had boon told by brakeman to stop, and brakeman was unable to stop the train because air-hose was not coupled, testimony of a passenger in the automobile, in answer to the question, “What was said and done right at that time?” that “he told us he would see that everything was all right,” was not admissible as part of the res gestae, as it did not tend to explain or bear upon the main transaction or the principal faet in dispute, but was mere narrative of an irrelevant matter.</p> <p>7. Trial — Reading to Jury Portion of Complaint Making Charge not Supported by Evidence Held Error. — In railroad crossing accident ease, where there was no evidence supporting a charge of the complaint that the brakeman was not able to signal the engineer because the engineer was not watching, it was error for the court to read such portion of the complaint to the jury as stating an issue in the ease.</p> <p>8. Railroads — Instruction in Crossing Accident Case Held Error. In railroad crossing accident case, an instruction as to the accident’s having been occasioned by “defective brakes or any machinery used in operating said train,” sueh cause of the accident not having been pleaded or proved, and advising finding for plaintiff, unless plaintiff was “grossly negligent,” was error; plaintiff’s recovery being defeated by his negligence, if he failed to exercise the care of an ordinarily prudent man under the circumstances.</p> <p>5. How near the main transaction must declarations be made in order to constitute part of the res gestae, see note in 19 L. R. A. 733.</p> <p>Statements made some time after accident as res gestae, see note in 42 L. R. A. (N. S.) 917.</p> <p>See 22 O. J., pp. 454, 467; 33 Cyc. 1053, 1111, 1138; 38 Cye. 1565, 1590, 1608.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge.</p>

<p>1. Mines and Minerals — Miner’s Lien for Wages not Enforceable Without Contract of Employment for Wages. — Tlie Miner’s Lien Law was intended to protect miners who labor on mines under contract of employment to do such labor for wages, and there must be a contract establishing relation of debtor and creditor.</p> <p>2. Mines and Minerals — Agreement Held to Create Mining Partnership and to Give No Bight to Lien for Wages. — -A purchaser of mining claims and lessees who had done considerable development work agreed to organize a corporation in which each should be allotted shares, and other shares should be sold to reimburse the purchaser and pay operating expenses, including wages, and that the development work should be continued, and that all the parties should be paid wages and share alike. Seld, that the agreement created a miniDg partnership, and, if purchaser refused to organize the corporation or deliver the stock, the lessees’ remedy was for breach of the contract, and they had no miner’s lien for wages, under Civil Code of 1913, paragraph 3654.</p>

<p>Corporations — Officer Holding Bonds and Coupons Given for Lands Purchased from Him Held Entitled to Interest Notwithstanding His Conduct as Officer Adverse to Corporation. Where a corporation purchased lands from its president and secretary under contract to pay for them in bonds which it was agreed were to be later exchanged for an equal amount in a subsequent larger issue, and such president as agent of the corporation remained in possession of the land to manage it, his failure thereafter to surrender possession because of corporation’s indebtedness to him for services and his aets in preventing the agreed issue of bonds and exchange of bonds received as the purchase price held not to affect his right to the payment of interest as owner of the bonds and coupons upon being required to complete the transaction.</p> <p>See 14A C. J., p. 131.</p>

<p>1. Habeas Corpus — Petition for Writ Held not to Show Ground for Belief, Being Made Up of Conclusions and Assumptions. A petition for writ of habeas corpus alleging that M. was restrained of his liberty in violation of the Constitution of the United States, Amendment 14, that he was about to be deprived of his life without due process of law, and without the equal protection of the law, that the judge of the superior court of S. county, in fixing the date for the execution of the judgment of petitioner, was without jurisdiction of the person or subject matter, and that all such acts were without authority of law, in violation of the Constitution of the United States Amendment 14, and state Constitution, article 2, section 4, held made up of conclusions and assumptions of the pleader, and not sufficient to merit issuance of writ.</p> <p>2. Habeas Corpus — Allegation That Court Sentencing Defendant had No Jurisdiction of Person and Subject Matter Held Conclusion of Pleader. — A statement in a petition for a writ of habeas corpus that the superior court of S. county did not have jurisdiction of the person and the subject matter at the time the court reset the date for carrying into effect its judgment and sentence of accused held a conclusion of the pleader containing no element of fact.</p> <p>3. Habeas Corpus — Writ Should not be Issued upon Pacts not Showing Prisoner Entitled to Discharge. — The writ of habeas corpus should not be issued upon a statement of facts not showing, or tending to show, the prisoner is entitled to his discharge.</p> <p>4. Habeas Corpus — Mere Irregularity not Beviewable or Corrected by Writ. — Mere irregularities or mistakes cannot be reviewed or corrected by the writ of habeas corpus.</p> <p>See 16 C. J., p. 1334; 17 C. J., pp. 47, 95; 29 C. J., pp. 25. 142. 195.</p> <p>5. Criminal Law — Execution op Judgment op Death may not be Suspended Except por Insanity, Pregnancy, and Reprieve by Governor. — Under Penal Code of 1913, section 1140, providing that no judge, court or officer can suspend the execution of death, the only instances in whieh judgment may be suspended, except upon a reprieve by the Governor, arise where a prisoner may have become insane after delivery to the superintendent of the prison, or the prisoner, if a female, is pregnant.</p> <p>6. Criminal Law — Right op Appeal is Statutory, Which Party must Exercise Within Time Limited. — Right of appeal of a defendant is a matter of graee given by organic or statutory law, there being no common-law right of appeal, and when a defendant appeals he must do so within the time and manner fixed by law.</p> <p>7. Criminal Law — Legislature Eixes Time Within Which Appeal must be Made — Court or State Officer cannot Extend Time op Appeal. — The legislature fixes the time within which the right of appeal shall be exercised, and neither the court nor any court or state officer can extend that time.</p> <p>8. Criminal Law — Attorney General has No Power to Extend Time During Which Appeal may be Taken. — Where defendant did not appeal from the judgment of death within sixty days from date of conviction, as provided in Penal Code of 1913, section. 1158, the consent of the Attorney General to an appeal after appeal time had expired was futile, since he had no power to extend the time in whieh the appeal could be taken.</p> <p>9. Habeas Corpus — Appellate Court may Rectify Wrong Done by Issuance of Writ of Habeas Corpus, Which Postponed Execution of Death Sentence.- — -The appellate court has power to rectify the wrong occasioned by the issuance of a writ of habeas corpus resulting in the postponement of the execution of a death sentence made in accordance with Initiative Measure (Laws 1919, p. 19), section 9.</p>

<p>1. Criminal Law — Bloody Articles Found on Premises of Parties Accused of Stealing and Killing Calf Held Admissible. — In a prosecution for stealing a calf, a rope, shirt and other articles, with fresh blood on them, found in and about defendant’s house, to which the parties who had killed the calf were tracked, held, sufficiently identified with the erime to be admissible.</p> <p>2. Criminal Law- — Instruction as to Effect of Possession of Stolen Goods Held not Erroneous, as Assuming Possession.— In a larceny prosecution, an instruction that unexplained possession of recently stolen goods is a circumstance from which accused’s guilt may be inferred, held not erroneous, as assuming defendant’s possession, especially in view of further instructions.</p> <p>3. Criminal Law — Possession of Stolen Property by One Participant in Theft is Possession of Other. — Possession of stolen property by one participant in the theft is the possession of another, whether he stole, or aided or abetted the larceny; he being a principal in either case, under Penal Code of 1913, section 27.</p> <p>4. Criminal Law — Incriminating Statement, .not Replied to by Accused, Admissible to Show Admission by Silence. — Evidence of silence, on being accused of erime, is relevant as tending to show guilt, if accused had full liberty to speak, and the incriminating statement is admissible, not as evidence of the truth thereof, but to show accused’s admission by silenee.</p> <p>5. Criminal Law — -Instruction as to Effect of Failure to Reply to Incriminating Statement Held Authorized. — In a prosecution for stealing a calf, alleged to have been butchered by defendant and others, evidence of an officer’s statement in defendant’s presence before his arrest, “Here is the man that put the hide in the ditch,” held sufficient to' authorize an instruction as to the incriminating effect of defendant’s failure to reply.</p> <p>1. Admissibility against defendant of documents or articles taken from him, see notes in 59 L. R. A. 467; 8 L. R. A. (ET. S.) 762; 34 L. R. A. (ET. S.) 58; L. R. A. 1915B, 834; L. R. A 1916E, 715.</p> <p>3. Possession of recently stolen property as evidence of larceny, see note in 12 L. R. A. (N. S.) 199.</p> <p>4. Uneontradieted statement made in the presence of accused as confession, see notes in 4 Ann. Cas. 1042; 12 Ann. Cas. 875; 25i L. R. A. (ET. S.) 543; 42 L. R. A. (Ei. S.) 890.</p> <p>See 16 C. J., pp. 100, 618, 631, 661, 952.</p>

<p>1. Master and Servant — Rule as to Burden op Proof, Where Death Occurs prom Unascertainable Cause Stated. — In an. action under the Employers’ Liability Aet, where decedent was electrocuted, from an unascertainable cause, the claimant has the burden of proving no negligence on the part of decedent, but where there is no evidence that decedent’s negligence did or did not cause his death, the burden is sustained by proof which renders probable the fact that decedent was not negligent, under the doctrine that doubt will be resolved in favor of an employee for compensation; the eourt presuming, where the cause of death is unaseertainable, that it was natural and accidental, not suieidal.</p> <p>1. Burden of proving contributory negligence under Employers’ Liability Acts, see note in 33 L. R. A. (N. S.) 1218.</p> <p>Constitutionality, application and effeet of the Federal Employers’ Aet, see notes in 17 Ann. Cas. 331; 4.7 L. R. A. (N. S.) 38; 48 L. R. A. (N. S.) 987; L. R. A. 1915C, 47; 12 A. L, R. 698.</p> <p>See 26 Cye. 1415, 1455, 1460.</p> <p>2. Master and Servant — Whether an Injury is an Accident is Question of Law. — Whether or not an injury is an accident, once the facts have been ascertained, is a question of law.</p> <p>3. Master and Servant — Evidence Insufficient to Show Decedent was Negligent or Committed Suicide. — Where it would have been necessary for decedent to turn his body and lift his hand, evidence held insufficient to show that he negligently or designedly touched an uninsulated fuse by which he was electrocuted.</p> <p>4. Master and Servant — -Where Different Conclusions Might be Drawn, Question is for Jury. — Where decedent was electrocuted from an unaseertainable cause, and the minds of reasonable persons might come to different conclusions upon the evidence submitted, a question for the jury is presented.</p>

<p>1. Embezzlement — Only Persons Occupying Fiduciary Relations Specified in Statute Guilty. — Only persons occupying, to the owner of property, one of the fiduciary relations specified in Penal Code of 1913, sections 500-505, defining embezzlement, ean be guilty of sueh offense.</p> <p>2. Embezzlement — Possession of Fiduciary must Arise from Trust. — Only property which reaches persons in one of the fiduciary relations specified in Penal Code of 1913, sections 500-505, by virtue of their trusts can be the subject of embezzlement.</p> <p>3. Embezzlement — Information must Allege Fiduciary Relation or Facts Disclosing Relation. — An information charging embezzlement under Penal Code of 1913, sections 500-505, must allege the fiduciary relation by virtue of which the defendant acquired possession of the property or facts disclosing the fiduciary relation.</p> <p>4. Embezzlement — Information Held Defective for Failure to Plead Fiduciary Relationship. — Information charging that defendant embezzled automobile entrusted to him by a named company held defective for failure to allege the fiduciary relation between the defendant and the company or facts disclosing such relation under Penal Code of 1913, sections 500-505.</p> <p>5. Embezzlement — Information must Allege That Company Entrusting Property to Defendant was Corporation. — Information charging that defendant embezzled automobile with whieh he was entrusted by the “Y. Company”' held insufficient for failure to allege that the company was a corporation or other legal entity capable of owning property.</p> <p>6. Embezzlement — Information must Show Ownership of Property Embezzled not in Defendant. — An information charging embezzlement must show that ownership of property is not in the defendant, but need not positively negative ownership in defendant if name of owner together with faet of ownership is pleaded.</p> <p>7. Embezzlement — Defendant not Entrusted With Automobile Could not be Convicted of Embezzlement. — A defendant who was not entrusted with an automobile by its owner could not be convieted of embezzlement, though the automobile was entrusted to a third person jointly indicted with the defendant pursuant to agreement between third person and defendant to hire ear for legitimate purpose unless sueh agreement was disclosed to the owner, and it was entrusted to third person for the use of both.</p> <p>8. Embezzlement — Larceny—Obtaining Possession With Intent to Convert is Larceny, not Embezzlement. — One who obtained possession of an automobile with tbe intention of converting it to Ms own use was not guilty of embezzlement; tbe crime in sueb case being larceny.</p> <p>2. Existence of trust in property stolen or embezzled, see note in L. R. A. 1915B, 442.</p> <p>8. Questions as to distinction between larceny and embezzlement, see notes in 13 Ann. Cas. 882; 11 A. L. R. SOI; 13 A. Xi. R. 319.</p> <p>See 20 C. J., pp. 410; 420, 421, 465, 466, 469'; 25 Cyc. 45.</p>

<p>Indictment and Information — Objection to Evidence That Information States No Offense Good.' — An information not stating a publie offense, objection on that ground to evidence offered in support of it should be upheld; such an information being a nullity, conferring no jurisdiction, and necessarily forming no basis for introduction of testimony.</p> <p>See 31 C. J., p. 793.</p>

<p>1. Witnesses — Defendant Offering Himself as Witness is Subject to Cross-examination. — Under Penal Code of 1913, section 1229, defendant cannot be compelled to be a witness against himself, though he may be a witness in his own behalf; but, if he offers himself as a witness, he may be cross-examined to the same extent, and subject to the same rules as any other witness.</p> <p>2. Witnesses — Question to Accused on Cross-examination Held Proper. — In a prosecution for robbery, in which accused interposed an alibi, permitting him to be ashed whether he was not confined in the city jail between certain dates, and allowing his answer to stand, held proper where aeeused had testified that between those dates he was living elsewhere.</p> <p>3. Criminal Law — Instruction Defining Robbery in Language of Statute not Objectionable. — Objection to instruction defining robbery, on the ground that element of asportation was omitted, held without merit where the instruction was practically in the language of the statute defining robbery.</p> <p>4. Criminal Law — Court’s Comment on Defense of Alibi Held Ground for Reversal. — In a robbery prosecution, in which an alibi was interposed as a defense, remark by trial court that alibis were successfully fabricated, and were difficult to detect, even when false, and that the temptation to resort to them as spurious defenses may be great, held a comment on evidence in violation of Constitution, article 6, section 12, and ground for reversal, where it might have affeeted the verdict.</p> <p>1. Cross-examination of accused in criminal cases, see notes in 15 L. R. A. 669; 62 L. R. A. 345.</p> <p>4. Questions relating to instructions disparaging defense of alibi, see note in 14 A. L. R. 1426.</p> <p>See 16 C. J., pp. 832, 968; 17 C. J., p. 295; 40 Cyc. 2510.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge.</p>