[76 Ariz. 184] Ross F. Jones, Atty. Gen., Irwin Cantor and John R. Elliott, Assts. to the Atty. Gen., for appellee.
Marvin Johnson, of Phoenix, for appellant.
This is an appeal from the judgment entered in the above entitled cause and from orders denying defendant's motion for a new trial, and denying his motion to withdraw plea of guilty and to enter a plea of not guilty to a charge of statutory rape.
Defendant waived preliminary hearing on this charge in the Tolleson justice court precinct and upon the evidence taken before the magistrate at the time of arraignment was bound over to the superior court on said charge. Thereafter an information was filed in the superior court charging defendant with said offense.
On March 24, 1952, defendant appeared in the superior court with his counsel, Richard Gilmore, and upon arraignment entered a plea of not guilty. The cause was thereupon set for trial on August 6. On that date defendant appeared with attorney Gilmore and withdrew his plea of not guilty and personally entered a plea of guilty to statutory rape. On the following August 13 the date appointed for imposition of sentence, the court rendered its judgment and sentence against defendant fixing his punishment at not less than 10 nor more than 20 years in the state penitentiary at Florence.
Pursuant thereto defendant was incarcerated in said penitentiary. The exact date thereof is not disclosed by the record presented to us. On August 20 defendant, through his present attorney, filed a motion for a new trial upon the alleged ground of newly discovered evidence and on the following day filed his motion for permission to withdraw his plea of guilty and to enter a plea of not guilty to the offense. These motions were presented to the court on September 10, taken under advisement, and on September 12 were denied.
[76 Ariz. 185] An application was made on September 16 for a certificate of probable cause based on the ground stated in the motion for a new trial and motion for permission to change his plea. No indication is given in the motion for a new trial as to the nature of the newly discovered evidence but on the same date, long after the defendant had been committed to the state penitentiary the court granted the certificate and fixed bond at $1000. Upon the bond being furnished the court ordered the warden to release defendant from custody.
On the same date defendant filed his notice of appeal and assigns as error:
'(1) The denial by the trial court of defendant's motion for new trial on the ground of newly discovered evidence.
'(2) The denial by the trial court of defendant's motion for permission to change plea.
'(3) The assessing of the punishment by the trial court of a sentence of ten to twenty years in the State Penitentiary at Florence.'
presumably upon the ground that counsel believes the sentence to be excessive.
Without any reservations whatever we condemn the manner in which present counsel for the defendant has handled this case both in the superior court and in this court. The slightest diligence and industry on the part of counsel would have eliminated from the record the rubbish with which it is cluttered. The motion for a new trial based upon newly discovered evidence is wholly unsupported by any document which would even tend to establish that such evidence existed. There is nothing to indicate its nature or that any witness would testify to such facts if a new trial were granted. We find in the record a document without date signed by defendant but unverified by oath of any kind in which he denies his guilt and to which is attached many typewritten copies of letters purporting to have been written to defendant in 1950 and 1951 by the minor child when she was 11 years of age. For what purpose this instrument and these letters were incorporated into the record is not clear. The only purpose they could possibly serve is to defame and disgrace a child with whom defendant states in the instrument he had been in love for some time past and with whom he admitted in open court he had had sexual intercourse. His denial of sex relations with her in the midst of the multitudinous accusations of depravity of a child who had sinned, stands out in full relief and, in its silent protest, loudly proclains its own falsity.
To make a record of this character against a 13-year-old child is revolting to say the least and it is incredible that counsel would allow such scurrilous matter to be made a public record against her. Were she before the court charged with some offense the ...