OPINION
Stanford,
Chief Justice.
Information was filed in the Superior Court of
Navajo County, Arizona, against the appellant Carl J. Brady
charging him with the crime of rape upon the person of a girl
of the age of ten years. The information charged that the
offense occurred on or about the 6th day of December, 1946,
at the parental home of the prosecuting witness.
The
facts are that on said date the appellant took certain
children to see a carnival and rodeo being conducted at the
fairgrounds at Winslow, Arizona, among the children being
this little girl, a younger sister and some other children.
In the evening they were returned by the appellant to their
home. The appellant seemed to be an intimate friend of both
the mother of the child and her husband. The child was the
issue of a former marriage. Upon arrival at the home,
appellant went to the bathroom where the testimony shows that
he, having taken a cathartic, was compelled to go. While he
was there the prosecuting witness entered the bathroom and it
was then the crime was committed. While they were still in
the bathroom the parents returned. Further facts will develop
when we refer to the testimony.
From
the ten assignments of error claimed to have been committed
by the trial
court, we have selected for consideration the following, the
disposition of which is determinative of all the
appellant's points related in his pleadings:
"III.
The Court erred in denying the challenges interposed by
appellant to jurors W. M. Willis and Perry A. Baldwin, upon
the ground and for the reason that each of said jurors, by
their answers, disclosed their disqualification, to serve as
fair and impartial jurors."
"IV.
The Court erred in permitting the State, over appellant's
objections, to prove by other witnesses the details of the
complaint made by prosecuting witness to them, upon the
ground and for the reason that the details of a complaint
made by the victim of a rape are never admissible as primary
evidence."
"V.
The Court erred in denying defendant's motion for a
mistrial, because of the misconduct of the County Attorney in
placing his arms around prosecuting witness while sitting on
the Clerk's desk and facing the jury."
"VI.
Appellant did not secure a fair and impartial trial because
of the misconduct of the County Attorney in continually
addressing the prosecuting witness as 'honey'."
"VII.
The Court erred in refusing to grant defendant's motion
for mistrial because of the misconduct of the County Attorney
in conversing with and handing the jury pictures of the
bathroom in the Hutchinson home, where the alleged offense
occurred, during the absence of the Court and
counsel for defendant, in violation of the Court's
admonitions to the jury not to discuss the case or to permit
anyone to discuss the case with them."
"VIII.
The Court erred in giving State's instruction No. 6, upon
the ground and for the reason that the jury was thereby
misdirected as to the law, because said instruction
incorrectly charged the jury that if an attempt is made to
ravish a female under the age of eighteen years by a male not
her husband, the felonious intent is present; and said
instruction further misdirected the jury as to the law in
that it charged the jury that it might find the defendant
guilty of intent to rape although they found that the person
of the female had not been touched."
"IX.
The Court erred in refusing to charge the jury, at the
request of appellant, upon the law of aggravated assault and
simple assault because each thereof were included offenses in
the crime of rape."
In
respect to assignment No. III the testimony shows that jurors
W. M. Willis and Perry A. Baldwin made statements which were
the basis for unsuccessful challenges by appellant. As to
Juror Willis, the following is the testimony:
"Q.
Mr. Willis, are you conscious in any degree of having any
prejudice against a man who is charged with this type of an
offense? A. Yes, I think so.
"Q.
The mere accusation in your mind creates some prejudice? A.
It does.
"Q.
And if you are chosen as a juror -- as one of the trial
jurors in this case, would you take that prejudice with you
into the jury box? A. I think not; I would listen to the case
and have an open mind about it.
"Q.
But the fact that you do now entertain a prejudice generally
against men who are accused of this type of offense, would
that require either the State or the defendant to introduce
evidence to remove such an impression? A. Yes -- they -- the
fact the man was accused; there must be some evidence and if
the evidence is sufficient that is all I want to hear.
"Q.
Well, then, you appreciate the fact, Mr. Willis, that it is
only by inquiry that either party may ascertain your state of
mind with reference to a pending case that these questions
were asked? A. Yes.
"Q.
Now, then, do I understand you to say that the mere charge in
any case creates a presumption of guilt? A. Yes.
"Q.
And I will ask whether with that presumption, you would have
a prejudice? A. Well, yes, as I said, I had a prejudice but
my mind can be changed if there is sufficient evidence.
"Mr.
Greer: Your Honor, that is directly opposed to the
presumption of innocence.
"Mr.
Nutting: I would like to ask Mr. Willis if he understands the
defendant in any criminal case is presumed to be innocent
until we prove him guilty beyond a reasonable doubt?
"The
Juror: Yes.
"Mr. Nutting: And you would take that
presumption with you?
"The
Witness: Yes.
"Mr.
Nutting: In this case do you give the benefit of that
presumption of doubt the same as you would give --
"The
Juror: Right.
"Mr.
Nutting: And other unless the case by the evidence presented
here was sufficient you would acquit the defendant?
"The
Juror: Right.
"Mr.
Nutting: You don't have any fixed opinion in your mind at
this time?
"The
Juror: No.
"Mr.
Nutting: You will be guided solely by the evidence, is that
right?
"The
Juror: Right.
"Mr.
Nutting: I think the juror is qualified.
"Mr.
Greer: "Q. Now, Mr. Willis, disregarding your answers to
the questions propounded by the county attorney, you
haven't changed your mind; you would still be prejudiced
to some degree, is that correct? A. I haven't convicted
the man in my mind but I am convinced that he is not here
just for nothing -- I mean one or another will have to prove
the man either guilty or innocent.
"Mr.
Greer: We challenge the juror.
"The
Court: Challenge denied.
"Mr.
Greer: Then you are not what the law prescribes a fair and
impartial juror, is that correct?
"Mr.
Axline: Your honor, that would be calling for his opinion; it
is not a proper form of question. You might ask him if he has
a fixed opinion. It is not a proper form of question. We
object to the form of the question.
"The
Court: I believe that is a question for the court to decide;
the objection is sustained.
"Mr.
Greer: May I ask again, Mr. Willis, you still then are of the
attitude that one or the other of the parties to this action
should remove the opinion or prejudice which you now
entertain by evidence? A. Yes.
"Mr.
Greer: We again challenge the juror.
"The
Court: You have stated that you have heard about the case.
Have you formed or expressed an opinion as to the innocence
or guilt of the defendant in the matter? A. No.
"The
Court: You stated there was some prejudice existing because
of the filing of the complaint -- the information in this
case; that state of mind -- is that one if you were chosen as
a juror you would carry into the jury room or is it a state
of mind that could be changed or would you be guided by the
evidence and the instructions of the court? A. I would be
guided by the evidence submitted.
"The
Court: The challenge is denied."
The
testimony relative to the selection of juror Baldwin is as
follows:
"Q. Now, Mr. Baldwin, are you conscious of
any prejudice, however slight, against a person accused of an
offense of this nature? A. Well, I think I, more or less
answered that question already; I am afraid I really would
be, more or less. I am not biased against the man at all
because I don't know him and I have never seen him
before.
"Q.
But you are biased or prejudiced against the offense, is that
right? A. Yes.
"Q.
And being so biased and prejudiced would naturally -- would
it effect you as a juror? A. I am afraid it would.
"Q.
And you would go into the jury box, would you, and enter into
deliberations as a juror still retaining that bias and
prejudice? A. Well, I don't know how I could do
otherwise.
"Q.
Then you would be biased and prejudiced, is that correct? A.
I wouldn't be biased and prejudiced against the man nor
the particular case, but --
"Q.
Well, let me ask you this, Mr. Baldwin, the fact that you are
biased or prejudiced to some extent against this offense and
that this man is on trial, is it not a fact that would create
a bias or prejudice against him in your mind? A. Well, I
guess it probably would, some, yes.
"Q. To some extent you would be prejudiced and biased?
A. Yes, probably.
"Q.
And that would be true regardless of who was on trial in this
type of action? A. Yes, it would have nothing to do with the
man.
"Q.
But your prejudice and your bias against anyone who was
charged with committing this type of offense would naturally
be carried by you into the jury box...
