Alan Philip Bayham, Phoenix, for appellant.
[79 Ariz. 74] Ross F. Jones, Atty. Gen., Lawrence Ollason, Asst. Atty. Gen., William P. Mahoney, Jr., County Atty., Lawrence C. Cantor, Asst. County Atty., Phoenix, for appellee.
Defendant William Merryman was, by the first count of an information, charged with the crime of wilfully, unlawfully and feloniously having sexual intercourse with a female child under the age of 18 years, not his wife. The crime is alleged to have occurred on or about the 13th day of March, 1954. By the second count of the information, defendant was charged with the crime of incest. Under this count it is alleged that on the same date defendant had sexual intercourse with his daughter who will be hereinafter referred to as the prosecuting witness.
Defendant entered a plea of not guilty to each of said counts and was tried by a jury which found him guilty on both counts. The court pronounced sentence of not less than 12 nor more than 16 years on the rape charge, and not less than 5 nor more than 10 years on the incest charge, the sentences to run concurrently. From the verdict and judgment entered thereon, defendnat appeals.
We will not go into the details of the evidence because as in most rape cases, there are two diametrically opposed stories, also because of its salacious nature.
The pertinent facts are these: At the suggestion of defendant he and the prosecuting witness went for an auto ride on the day that the alleged events here involved took place. Defendant claimed the ride was taken in order to teach the prosecutrix, who was only 14 years of age, how to drive a car. They drove off of the main traveled highway just north of the weighing station northwest of Beardsley at which point defendant told her to turn off the main highway and then directed her to a secluded spot on the desert.
The defendant denied each and all of these acts. A doctor testified that some six to eight hours after the purported act had taken place, he examined the prosecuting witness to determine whether sexual intercourse had occurred. The doctor testified that he performed a pelvic examination to ascertain whether or not lacerations were present. Also he took two smear tests to examine for spermatozoa. These examinations revealed that there were no lacerations and the smear tests were negative.
Defendant complains that the court committed error in refusing defendant's motion for a mistrial. This motion was based on statements made by the state's counsel in his argument to the jury to the effect that
'defendant had the right of appeal but that Kathy (the prosecutrix) did not'. Defendant claims this was prejudicial error.
The general rule is that whether or not improper argument in a criminal case has influenced the verdict must be left to [79 Ariz. 75] the sound discretion of the trial court on motion for a new trial. Hoy v. State, 53 Ariz. 440, 90 P.2d 623; State v. White, 56 Ariz. 189, 106 P.2d 508. If there has been no abuse of that discretion and it appears that substantial justice has been done the court will not reverse the judgment. Sage v. State, 22 Ariz. 151, 195 P. 533; Hoy v. State, supra; Lawrence v. State, 29 Ariz. 247, 240 P. 863. Counsel should always confine their argument to the pertinent law and facts of the case. The trial court in the instant case instructed the jury to disregard counsel's remarks and we believe properly denied defendant's motion for a mistrial. While the remarks were improper we see nothing in them calculated to inflame the minds of the jurors with passion or prejudice or influence the verdict in any degree. In Vaughan v. State, 58 Ark. 353, 24 S.W. 885, 888, 889, a much more damaging remark was made to the jury by the prosecutor than made here. In that case the prosecutor said:
'* * * 'No innocent man was ever yet hung, and, if the jury wrongfully convicted the defendant, he had a right to appeal to the supreme court, who would rectify the wrong.' * * *'
The court said the trial judge told the jury the remarks were improper. The court further stated that while they were improper and unwarranted they were not prejudicial since the first part of the remark was a mere matter of opinion and the latter part as to the right of appeal was already known to every intelligent juror.
Defendant next advances the argument that the trial court erred in not granting him a directed verdict because the evidence was insufficient to uphold a guilty verdict, and also that the verdict and the ...