Judgment affirmed as to conviction for sodomy and for contributing to delinquency of minor, and judgment reversed as to conviction for committing lewd and lascivious acts.
Krucker & Evans, of Tucson, for appellant.
Fred O. Wilson, Atty. Gen., Wilbert E. Dolph, Jr., Asst. Atty. Gen., for appellee.
La Prade, C. J., and Udall, Stanford, Phelps and De Concini, JJ., concur.
[71 Ariz. 141] Defendant John L. Miller, appellant, was charged with committing two felonies; to wit, the act of sodomy on September 26, 1949, lewd and lascivious acts on May 24, 1949, and a misdemeanor of contributing to the delinquency of a minor on May 25, 1949. These acts all involved the same boy, a minor, aged 16, hereinafter referred to as the boy or the accomplice. After a preliminary hearing in the justice court an information was filed against defendant and on his plea of not guilty the case was set for trial before a jury, March 14, 1950.
Before trial defendant made a challenge to the jury panel which was overruled by the trial court. Defendant made a motion for a directed verdict both at the close of the state's case and at the close of his case. Both were denied. The jury found defendant guilty on all three charges; he was sentenced to four years each on the two felony charges, sentences to run concurrently, and to one year in the Pima County jail and $ 300 fine on the misdemeanor count, the latter jail sentence to commence upon the completion of the sentences imposed for the felonies.
Defendant appeals and assigns 5 errors of the trial court which may be summarized to present 3 issues for this court to decide:
(a) That the jury summoned to attend the trial of this case was illegally summoned.
[71 Ariz. 142] (b) The court permitted a police detective, one of the state's witnesses, to answer the following:
"Q. What, if any, further conversation did you have with him (defendant) on this subject?
"A. I made a remark to Mr. Miller that if someone accused me of that crime I would tear the roof off the ...