Appeal from Superior Court, Navajo County; Don T. Udall, Judge.
Carl J. Brady was convicted of rape, and he appeals.
Dodd L. Greer, of Holbrook, and C. D. McCauley, of Winslow, for appellant.
John L. Sullivan, Atty. Gen., and Perry M. Ling, Asst. Atty. Gen., for appellee.
Stanford, Chief Justice. La Prade and Udall, JJ., concur.
Stanford, Chief Justice.
[66 Ariz. 366] Information was filed in the Superior Court of Navajo County, Arizona, against the appellant Carl J. Brady charging him with the crime of rape upon the person of a girl of the age of ten years. The information charged that the offense occurred on or about the 6th day of December, 1946, at the parental home of the prosecuting witness.
The facts are that on said date the appellant took certain children to see a carnival and rodeo being conducted at the fairgrounds at Winslow, Arizona, among the children being this little girl, a younger sister and some other children. In the evening they were returned by the appellant to their home. The appellant seemed to be an intimate friend of both the mother of the child and her husband. The child was the issue of a former marriage. Upon arrival at the home, appellant went to the bathroom where the testimony shows that he, having taken a cathartic, was compelled to go. While he was there the prosecuting witness entered the bathroom and it was then the crime was committed. While they were still in the bathroom the parents returned. Further facts will develop when we refer to the testimony.
From the ten assignments of error claimed to have been committed by the trial
court, we have selected for consideration the following, the disposition of which is determinative of all the appellant's points related in his pleadings:
"III. The Court erred in denying the challenges interposed by appellant to jurors W. M. Willis and Perry A. Baldwin, upon the ground and for the reason that each of said jurors, by their answers, disclosed their disqualification, to serve as fair and impartial jurors."
"IV. The Court erred in permitting the State, over appellant's objections, to prove by other witnesses the details of the complaint made by prosecuting witness to them, upon the ground and for the reason that the details of a complaint made by the victim of a rape are never admissible as primary evidence."
"V. The Court erred in denying defendant's motion for a mistrial, because of the misconduct of the County Attorney in placing his arms around prosecuting witness while sitting on the Clerk's desk and facing the jury."
"VI. Appellant did not secure a fair and impartial trial because of the misconduct of the County Attorney in continually addressing the prosecuting witness as 'honey'."
"VII. The Court erred in refusing to grant defendant's motion for mistrial because of the misconduct of the County Attorney in conversing with and handing the jury pictures of the bathroom in the Hutchinson home, where the alleged offense occurred, during the absence of the Court [66 Ariz. 367] and counsel for defendant, in violation of the Court's admonitions to the jury not to discuss the case or to permit anyone to discuss the case with them."
"VIII. The Court erred in giving State's instruction No. 6, upon the ground and for the reason that the jury was thereby misdirected as to the law, because said instruction incorrectly charged the jury that if an attempt is made to ravish a female under the age of eighteen years by a male not her husband, the felonious intent is present; and said instruction further misdirected the jury as to the law in that it charged the jury that it might find the defendant guilty of intent to rape although they found that the person of the female had not been touched."
"IX. The Court erred in refusing to charge the jury, at the request of appellant, upon the law of aggravated assault and simple assault because each thereof were included offenses in the crime of rape."
In respect to assignment No. III the testimony shows that jurors W. M. Willis and Perry A. Baldwin made statements which were the basis for unsuccessful challenges by appellant. As to Juror Willis, the following is the testimony:
"Q. Mr. Willis, are you conscious in any degree of having any prejudice against a man who is charged with this type of an offense? A. Yes, I think so.
"Q. The mere accusation in your mind creates some prejudice? A. It does.
"Q. And if you are chosen as a juror -- as one of the trial jurors in this case, would you take that prejudice with you into the jury box? A. I think not; I would listen to the case and have an open mind about it.
"Q. But the fact that you do now entertain a prejudice generally against men who are accused of this type of offense, would that require either the State or the defendant to introduce evidence to remove such an impression? A. Yes -- they -- the fact the man was accused; there must be some evidence and if the evidence is sufficient that is all I want to hear.
"Q. Well, then, you appreciate the fact, Mr. Willis, that it is only by inquiry that either party may ascertain your state of mind with reference to a pending case that these questions were asked? A. Yes.
"Q. Now, then, do I understand you to say that the mere charge in any case creates a presumption of guilt? A. Yes.
"Q. And I will ask whether with that presumption, you would have a prejudice? A. Well, yes, as I said, I had a prejudice but my mind can be changed if there is sufficient evidence.
"Mr. Greer: Your Honor, that is directly opposed to the presumption of innocence.
"Mr. Nutting: I would like to ask Mr. Willis if he understands the defendant in any criminal case is presumed to be innocent
until we prove him guilty beyond a reasonable doubt?
"The Juror: Yes.
[66 Ariz. 368] "Mr. Nutting: And you would take that presumption with you?
"The Witness: Yes.
"Mr. Nutting: In this case do you give the benefit of that presumption of doubt the same as you would give --
"The Juror: Right.
"Mr. Nutting: And other unless the case by the evidence presented here was sufficient you would ...