The judgment is affirmed.
V. L. Hash, Phoenix, and Virginia Hash, Phoenix, for appellant.
Fred O. Wilson, Attorney General, Maurice Barth, Assistant Attorney General, Chas. Rogers, Assistant Attorney General, Warren L. McCarthy, County Attorney, Phoenix for appellee.
Stanford, Justice. La Prade, C. J., and Udall, Phelps, and De Concini, JJ., concurring.
[69 Ariz. 295] This is an appeal from a conviction and sentence in the Superior Court for the
crimes of kidnapping and assault with the intent to commit rape.
The information contained two counts, one for each offense. The crimes were charged to have been committed by defendant on the 11th day of June, 1948. The child involved was a girl of the age of four years. The kidnapping occurred at approximately 3 P.M. near the home of the child northwest of the City of Phoenix. The child at that time was taking some empty coke bottles to a nearby store. Defendant stopped his car and asked the child where she was going and advised her that he would take her and get her a coke. The child got into the car and after taking her to several places in the evening of said date, defendant took her to a remote spot in Papago Park located some six miles east of the City of Phoenix, said place being a desert park. While at the park defendant removed the child's sun-suit and underpants, and unzippered his own trousers and shorts. In a further attempt to carry out the desire on his part, the child cried out and the defendant crawled into the back seat of the car and went to sleep.
At approximately 4:30 A.M., June 12th, defendant drove from Papago Park to Van Buren Street, west on Van Buren Street to 24th Street, then north to McDowell Road, being one mile, and then east to the Rollerdome Skating Rink. The car was left at that point because of lack of gas, and the two walked west on McDowell Road to an auto court located in the 2000 block where defendant used a telephone. Defendant then, with the child, went to a lawn chair in the yard of the auto court and there the child went to sleep. The owner being suspicious notified police, and upon their arrival defendant claimed to be the father of the child and claimed that he was on his way to work and was taking the baby to a nursery. After defendant was taken into custody the little girl was awakened and asked if the defendant was her father. She said that he was not. When taken to the police station he was allowed to call his minister and after a private talk with him the defendant admitted the things above related.
After trial in the Superior Court a verdict of guilty on the two counts charged was rendered by the jury and after judgment and imposition of sentence by the [69 Ariz. 296] court, defendant gave his notice of appeal to this court, the notice of appeal being from the order of the Superior Court denying defendant's motion for new trial and from the judgment rendered thereon.
Appellant submitted the following assignments of error as having been committed by the trial court:
"I. That the court erred in overruling the motion to quash the information based on the ground that the said information was not verified as provided by Section 44-705, A.C.A. 1939, for the reason that no preliminary hearing had been given the defendant, and the defendant, at the time he waived his preliminary hearing, was not represented by counsel and did not have the advise of counsel.
"III. That the court erred in admitting the confession of defendant into evidence for the reason that the said confession was obtained by force and was not voluntarily given by defendant, and was wholly inadmissible for that reason.
"IV. That the court erred in permitting the infant child, to-wit: The subject of the alleged kidnapping and rape to sit up front in the courtroom and thereby unduly influence and prejudice the jury against the defendant.
"V. The Superior Court did not acquire jurisdiction of the defendant for the reason that the court did not accord to the defendant his constitutional safeguards as provided by law, to-wit: That the committing magistrate did not inform the defendant of the charge pending against him or of his rights to the aid of counsel during the preliminary examination."
Article 2, Section 30, Constitution of Arizona reads: "Indictments. -- No person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; no person shall be prosecuted for felony by information without having had a preliminary examination before a magistrate or
having waived such preliminary examination."
Also Section 44-705, A.C.A. 1939, reads: "Subscription and verification of information. -- (1) All informations shall be subscribed by the county attorney. Except in cases where the defendant has been held to answer in a preliminary examination, the information shall be verified by the oath of the ...