Rehearing Denied March 7, 1961.
[89 Ariz. 131] Lawrence C. Cantor, Phoenix, for appellant.
Robert W. Pickrell, present Atty. Gen., Wade Church, former Atty. Gen., Charles [89 Ariz. 132] Stidham, former County Atty., Phoenix, for appellee.
The defendant-appellant Felton M. Hilliard was convicted on two felony counts to wit: Rape, count one (1), and Burglary in the first degree, count two (2), and sentenced by the court to serve not less than thirty-five (35) years nor more than fortyfive (45) years on count one (1), and not less than five (5) years nor more than seven (7) years on count two (2), the sentences to run concurrently. From the judgments of conviction and the orders of the court denying the motions for a new trial, and in arrest of judgment, this appeal was taken.
The facts briefly stated in the light most favorable to sustaining the convictions are that the prosecutrix was awakened about 2 a. m. in her small one-room cabin by defendant who choked, attacked, and threatened her and who later, after drinking some beer, fell asleep on her bed.
Defendant claimed the prosecutrix had approached him, a stranger out on the street, had invited him into her house, and that the intercourse was voluntary.
The defendant presents five assignments of error. The first assignment states that the trial court erred in refusing to grant the defendant a new trial on the ground that he was denied his right to a trial by an impartial jury as a result of the action of a member of the jury panel in publicly denouncing the defendant in the presence of her fellow jurors. This incident occurred, however, in front of an entirely different panel than that which returned the verdicts against the defendant.
The case came on for trial September 14, 1959. During the voir dire the prospective jurors were asked by the court whether any of them were acquainted with the defendant. One of them replied:
'Your Honor, I don't know if I am acquainted with him or not, but he is the one that attacked my daughter several years ago, so * * *'.
The court immediately granted a mistrial.
The following day, in order to insure an impartial trial, the court asked the new prospective jurors if they had been in the courthouse the day before. Some said yes. The court then asked if any had heard discussion of the case in any form. One woman so indicated. She was instructed to approach the bench. Out of the hearing of the other jurors she told what she had heard and was promptly excused. None of the other jurors had heard of the mistrial.
The defendant then made a motion to vacate the trial setting so that he might be tried by a later venire. The motion was denied. The defendant contends that he was thereby denied a fair and impartial trial as guraranteed by the Constitution of [89 Ariz. 133] Arizona, Art. 2, § 24, A.R.S. There was no evidence that any of the panel which returned the verdict had ever heard of the mistrial. The jury was in fact an impartial one.
A defendant is not entitled to be tried by any particular jury but only by one which is fair and impartial. State v. Miller, 71 Ariz. 140, 224 P.2d 205; Conner v. State, 54 Ariz. 68, 92 P.2d 524; Kinsey v. State, 49 Ariz. 201, 65 P.2d 1141, 1142, 125 A.L.R. 3. However, the trial court has the right to use its discretion on a challenge for cause, and so long as there has been no abuse of that discretion
it will not be disturbed on appeal. State v. Brady, 66 Ariz. 365, 189 P.2d 198; Riley v. State, 50 Ariz. 442, 73 P.2d 96.
Defendant next contends that the trial court erred in refusing to permit defendant to poll the jurors as to whether or not the jurors might have read newspaper articles concerning the trial. Defendant's counsel advised the court that a local newspaper had published an account of the juror's statement which prompted the mistrial. There was no evidence whatsoever that any juror had disobeyed the court's admonition which, at the outset of the trial was as follows:
'During the recess and all future recesses, * * * It is quite important under the circumstances that you be alert and do not permit any communication to come to you. I don't care if it is by some individual or through newspaper or radio or television. I don't know, but just do not permit yourselves to be communicated with concerning any matter involving this case in any way, shape, or form.'
The admonition was again given at the next recess.
At the close of the day's session and before the article in question was published, the court gave the following admonition:
'We will take the evening recess at the present time. We will stand in recess until 9:30 o'clock tomorrow morning. During this evening recess and all other future recesses, again I wish to admonish you as to the jury and the alternate juror that you are not to discuss the purported facts of this case among yourselves, nor with any other person. Now any other person does include your respective spouses. In other words, do not discuss the purported facts of the case with your husbands or wives or with any person at all. Do not permit anyone to endeavor to discuss any phase of this proceeding and do your best to remain out of the hearing of any radio announcement, if such there be, or television, or newspaper. In other words, do not permit yourselves to be communicated with in any way, shape, or [89 Ariz. 134] form concerning the possible facts of this particular case.'
At each recess, during the trial, the court either gave these admonitions in full or referred to them in such a manner as to further emphasize the ...