401 P.2d 721 (Ariz. 1965), 1394, State v. Miranda

Docket Nº:1394.
Citation:401 P.2d 721, 98 Ariz. 18
Opinion Judge:[9] Mcfarland
Party Name:STATE of Arizona, Appellee, v. Ernest Arthur MIRANDA, Appellant.
Attorney:[6] Darrell F. Smith, Atty. Gen., Robert W. Pickrell, former Atty. Gen., Stirley Newell, former Asst. Atty. Gen., Allen L. Feinstein, Phoenix, of counsel, for appellee. [7] Alvin Moore, Phoenix, for appellant.
Case Date:April 22, 1965
Court:Supreme Court of Arizona
 
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Page 721

401 P.2d 721 (Ariz. 1965)

98 Ariz. 18

STATE of Arizona, Appellee,

v.

Ernest Arthur MIRANDA, Appellant.

No. 1394.

Supreme Court of Arizona.

April 22, 1965

In Banc.

Page 722

[98 Ariz. 21] Darrell F. Smith, Atty. Gen., Robert W. Pickrell, former Atty. Gen., Stirley Newell, former Asst. Atty. Gen., Allen L. Feinstein, Phoenix, of counsel, for appellee.

Alvin Moore, Phoenix, for appellant.

McFARLAND, Justice:

Appellant was convicted of the crime of kidnapping, Count I; and Rape, Count II; and sentenced to serve from twenty to thirty years on each count, to run concurrently. From the judgment and sentence of the court he appeals. Appellant, hereinafter called defendant, was in another information charged with the crime of robbery. After arraignment in the instant case, on motion of the county attorney, the trial on the robbery case was consolidated with the instant case, but thereafter--one day prior to the trial of this case--separate trials were granted. Defendant was tried and convicted on the robbery charge, from which he is also appealing in the companion case of State v. Miranda, No. 1397, 98 Ariz. 11, 401 P.2d 716.

The facts, as they relate to the defense as charged under Counts I and II in the instant case are as follows: On March 3, 1963, the complaining witness--a girl eighteen years of age--had been working in the concession stand at the Paramount Theatre in downtown Phoenix, and had taken the bus to 7th Street and Marlette. After getting off the bus, she had started to walk toward her home. She observed a car, which afterwards proved to be defendant's, which had been parked behind the ballet school on Marlette. The car pulled out of the lot, and came so close to her that she had to jump back to prevent being hit. It then parked across from some apartments in the same block. Defendant then left his car, walked toward her, and grabbed her. He told her not to scream, that he would not hurt her. He held her hands behind her back, put a

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hand over her mouth, and pulled her toward the car. He put her in the back seat, tied her hands and feet, and put a sharp thing to her neck and said to her 'Feel this.' She stated it all happened so suddenly that she did not have time to do anything. Defendant was unknown to the complaining witness. She had not seen him before, and he was not related to her in any way.

He then drove the car for about twenty minutes, during which time complaining witness was lying in the back seat crying. When defendant stopped the car, he came to the back seat, and untied her hands and feet. He told her to pull off her clothes. She said 'no,' whereupon he started to remove them. She tried to push away from him, but he proceeded to remove her clothing. And, then, after one unsuccessful attempt, made a successful sexual penetration, while she pushed with her hands and was screaming. She testified:

[98 Ariz. 22] 'I was pushing against him with my hands. I kept screaming, I was trying to get away but he was a lot stronger than I was, and I couldn't do anything.'

He then drove her to 12th Street and Rose Lane, during which time she dressed. She ran home, and told her family, who called the police. Her sister testified that the complaining witness came home that morning crying and looking as if she had been in a fight. On March 13, 1963, defendant was apprehended by the police. The officers who picked him up both testified that he was put into the 'line-up' and was identified by complaining witness. Thereafter he confessed that he had forced complaining witness into his car, drove away with her, and raped her. After these statements he signed a statement, partly typed and partly in his own handwriting, which was substantially to the same effect as the testimony of the officers. Defendant offered no evidence in his defense at the trial of his case.

Defendant assigns as error the following: denial of the motion to quash the information; denial of his motion to dismiss the action on the ground that the case was not brought to trial within sixty days, under Rule 236, Rules of Criminal Procedure, 17 A.R.S. (1956); the county attorney's arguing the proposition of fear to the jury; the admission of the confession of defendant; that the verdict was not sustained by the evidence; and denial of defendant's motion for an instructed verdict.

We shall consider first the denial of the motion to quash the information. A.R.S. § 13-492 reads as follows:

'A. A person, except in the case of a minor by the parent, who seizes confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains such individual for ransom, reward or otherwise, or to commit extortion or robbery, or to exact from relatives of such person or from any other person any money or valuable thing, or a person who aids or abets any such conduct, is guilty of a felony.

'B. A person, except in the case of a minor by the parent, who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any child under the age of fourteen years by any means whatsoever with intent to hold or detain, or who holds or detains such child for the purpose of raping or committing sodomy, or lewd or lascivious acts upon the person of such child, or a person who aids or abets any such conduct, is guilty of a felony.

'C. A person convicted under subsections A or B of this section shall be punished as follows:

[98 Ariz. 23] '1. If the person subject to the acts mentioned in subsections A or B suffers serious bodily harm inflicted by the person found guilty, the person found guilty shall be punished by death or by life imprisonment without possibility of parole, whichever the jury recommends.

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'2. If the person subjected to any acts mentioned in subsection A or B does not suffer serious bodily harm the person found guilty shall be punished by imprisonment in the state prison from twenty to fifty years without possibility of parole until the minimum sentence has been served. As amended Laws 1956, Ch. 92, § 1.'

Defendant contends that there were objectionable, prejudicial and redundant, and unnecessary words in the following portion of the information:

'[D]id then and there wilfully, unlawfully and feloniously, seize, confine, abduct, conceal, kidnap or carry away one [complaining witness] for the purpose of raping and did rape said [complaining witness], said [complaining witness] not being related in any way to said defendant, * * *.' (Italics added.)

The words which he complains of were the words italicized. We have held the word 'otherwise,' in A.R.S. § 13-492 Subsec. A, includes other crimes such as rape. State v. Jacobs, 93 Ariz. 336, 380 P.2d 998; and State v. Taylor, 82 Ariz. 289, 312 P.2d 162.

In State v. Jacobs, supra, we stated:

'We therefore now hold that the crime of kidnapping with intent to commit rape may be charged under A.R.S. § 13-492, subd. A.' 93 Ariz. at 341, 380 P.2d at 1002.

The history and reason for the broadening of the kidnapping statute was well set forth in the Jacobs case. The information properly referred to 'rape' because that was the purpose of the kidnapping. The use of the words 'and did rape' was no more inflammatory than the allegation 'for the purpose of raping,' which was necessary and proper, as held in Jacobs, supra. The commission of rape was charged in Count II, and so defendant could not have been prejudiced by the use of the word in Count I. The objection to the other language--namely, 'not being related in any way to the defendant'--certainly is without foundation. The only object of the allegation was to show that the case did not fall within the exception, i. e., the taking of a minor by a parent. Under no stretch of the imagination could these words be construed as inflammatory, as contended by defendant.

As to the second part of the information charging the crime of rape, defendant[98 Ariz. 24] contends that because originally the word 'fear' was in the information it was prejudicial. However, defendant made a motion to quash the information, and, on May 2d, before the trial, the court entered an order denying defendant's motion to quash but ordered the word 'fear' to be stricken from the information. Hence the information upon which defendant was tried and which was read to the jury did not contain the word 'fear.' So the word 'fear' originally in the information could not have had any prejudicial effect. The case was submitted under proper instructions defining rape under A.R.S. § 13-611, Subsec. A. Par. 2 namely:

'2. Where the female resists, but her resistance is overcome by force or violence.'

Defendant contends that it was error to deny his motion to dismiss the action on the ground that the case was not brought to trial within the sixty days provided for under Rule of Criminal Procedure, No. 236, which reads:

'When a person has been held to answer for an offense, if an information is not filed against him for the offense within thirty days thereafter, or when a person has been indicted or informed against for an offense, if he is not brought to trial for the offense within sixty days after the indictment has been found or the information filed, the prosecution shall be dismissed upon the application of such person, or of the county attorney, or on the motion of the court itself, unless good cause to the contrary is shown by affidavit,

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or unless the action has not proceeded to trial because of the defendant's consent or by his action. When good cause is shown, the action may be continued, in which event the defendant if bailable shall be released on bail either on his own recognizance or on the undertaking of sureties.' 17 A.R.S. (1956).

This contention is without merit, as...

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