State v. Dowthard
| Decision Date | 10 July 1962 |
| Docket Number | No. 1228,1228 |
| Citation | 92 Ariz. 44,373 P.2d 357 |
| Parties | STATE of Arizona, Appellee, v. Jack Clifton DOWTHARD, Appellant. |
| Court | Arizona Supreme Court |
Robert W. Pickrell, Atty. Gen., Stirley Newell, Asst. Atty. Gen., Jeff Richards, County Atty., of Yuma County, for appellee.
James S. Tegart, Yuma, for appellant.
Defendant, Jack Clifton Dowthard, was charged with first degree burglary. The case first went to trial on May 31, 1961. Due to statements made by one of the States' witnesses the court granted defendant's motion for a mistrial and thereupon discharged the jury. The second trial resulted in a verdict of guilty of second degree burglary. From the conviction defendant appeals.
The defendant first assigns as error the failure of the trial court to grant his motion to quash the information. Defendant moved that the information be quashed on the ground of former jeopardy. The motion was made following the declaration of mistrial and discharge of the jury at the first trial. It is defendant's position that there was no legal ground for the mistrial and that he did not voluntarily consent to it even though it was granted on his motion. Therefore, he contends, he had been once in jeopardy of conviction and could not be prosecuted again for the same offense. 1
This assignment is without merit. Although the discharge of a jury after the trial has begun without some legal reason will ordinarily operate as a bar to further prosecution, Westover v. State, 66 Ariz. 145, 185 P.2d 315 (1947), the defense of former jeopardy is not available to a defendant where a mistrial is granted upon his motion. United States v. Harriman, 130 F.Supp. 198 (D.C.S.D.N.Y.1955) (); McLendon v. State, 74 So.2d 656 (Fla.Supp.Ct.1954) (); Kamen v. Gray, 169 Kan. 664, 220 P.2d 160, certiorari denied 340 U.S. 890, 71 S.Ct. 206, 95 L.Ed. 645 (1950) (Defendant moved for mistrial because of erroneous admission of a police record; State v. Diaz, 36 N.m. 284, 13 P.2d 883 (1932) (); State v. Wolak, 33 N.J. 399, 165 A.2d 174, certiorari denied 365 U.S. 822, 81 S.Ct. 710, 5 L.Ed.2d 701 (1960) (); State v. Ravencraft, 222 S.C. 139, 71 S.E.2d 798 (1952) ().
In the case at bar the defendant, by his request for a mistrial is estopped from asserting the defense of former jeopardy. For, as stated in Harriman, 'to permit the safeguard against double jeopardy to bar a second trial whenever a defendant can successfully maintain one course in the first trial and its opposite in the second one would nullify those 'ends of public justice' that the constitutional provision was designed to serve.' 130 F.Supp. at 204.
Defendant's second, third and fourth assignments of error involve a statement made by the county attorney in his closing argument to the jury. 2 After the instructions had been given and the jury had retired to deliberate, the following transpired:
'THE COURT: Let the record show that after the Court had finished the instructions to the jury, * * * Mr. Tegart, as counsel for the defendant, * * * approached the Bench and requested the right to move for a mistrial upon the basis of Mr. Richard's the county attorney, statement in his closing argument to the jury wherein, in substance, he stated that if the jury desired they would have the right to turn the defendant loose to go out and commit other burglaries or, on the other hand, they would have the right to find him guilty as charged in the information.'
Defendant contends that it was error for the court to permit such argument over his objection. 3 In addition he contends that the trial court erred in denying his motion for mistrial and in denying his motion for a new trial, both of which were based upon the above statement made by the county attorney.
This Court has repeatedly held that attorneys are given wide latitude in their arguments to the jury. State v. Thomas, 78 Ariz. 52, 275 P.2d 408, affirmed 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863 (1954); State v. McLain, 74 Ariz. 132, 245 P.2d 278 (1952). Since there is no record of the actual argument, there is no way of placing the statement in its proper context, or of determining whether it was merely a reply to some statement made in the defense argument. Even so, we do not feel that the remark objected to was such error as to require a reversal of the case. In determining whether remarks made by counsel in criminal cases are so objectionable as to cause a reversal of the case, we have stated the best rule to be:
'* * * Do the remarks call to the attention of the jurors matters which they would not be justified in considering in determining their verdict, and were they, under the circumstances of the particular case, probably influenced by these remarks.' Sullivan v. State, 47 Ariz. 224, 238, 55 P.2d 312, 317 (1936). 4
There is nothing in the record to show that the ramark so prejudiced the jury that it was the cause of the conviction of defendant. In addition, the jury was fully instructed that they were to predicate their verdict solely upon the facts as they found them from the evidence and the law as given to them by the court.
Defendant's last assignment is that the court erred in entering a judgment of guilty of first degree burglary when, in fact, the jury returned a verdict of guilty of second degree burglary.
The defendant was charged in the information with first degree burglary but, in light of the evidence adduced at the trial the court instructed the jury only as to second degree burglary. The jury returned a verdict of guilty of second degree burglary. The judgment and sentence were orally rendered wherein defendant was sentenced to 3 to 5 years in prison. However, the formal written judgment and sentence reads in part:
'NOW, THEREFORE, IT IS THE JUDGMENT AND SENTENCE OF THE COURT that you, Jack Clifton Dowthard, are guilty of the crime of First Degree Burglary, a felony, and that you be punished therefor as follows: That you be confined and imprisoned in the State Prison at Florence, Arizona, * * * for a period of not less than three (3) years nor more than five (5) years, * * *.'
Rule 325 of the Arizona Rules Criminal Procedure, 17 A.R.S,, provides:
'A. Judgment shall be rendered in open court.
The judgment is complete and valid when it is orally pronounced by the court and entered in the minutes. Moore v. State, ...
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State v. Whitman
...to the passage of the 1973 Rules.” Id. at 373, 542 P.2d at 405citing Johnson, 108 Ariz. at 118, 493 P.2d at 500,and State v. Dowthard, 92 Ariz. 44, 373 P.2d 357 (1962). If Johnson and Dowthard remained good law, our supreme court would not have qualified their precedential value as being li......
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...requested the court to instruct the jury to disregard it. It falls clearly within the statement by the county attorney in State v. Dowthard, 92 Ariz. 44, 373 P.2d 357--in which case at the close of the argument counsel for defendant approached the bench and requested the right to move for m......
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State v. Ballinger
...is not enough to determine whether the comment was intionally made to abort the trial. In this regard, the holding of State v. Dowthard, 92 Ariz. 44, 373 P.2d 357 (1962); cert. denied, 372 U.S. 920, 83 S.Ct. 735, 9 L.Ed.2d 726 (1963), has been shadowed by Downum v. United States, Supra, and......
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State v. Miranda
...'Please don't.' This court has repeatedly held that attorneys are given a wide latitude in their arguments to the jury. State v. Dowthard, 92 Ariz. 44, 373 P.2d 357; State v. Thomas, 78 Ariz. 52, 275 P.2d 408; State v. McLain, 74 Ariz. 132, 245 P.2d 278. In addition, any possible prejudice ......