Gale Encyclopedia Of American Law 3Rd Edition Volume 12 P18 ppsx

There is, therefore, much reason to believe, that this mode of trying the legal right of the complainant, was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose. When the subject was brought before the court the decision was, not that a mandamus would not lie to the head of a department, directing him to perform an act, enjoined by law, in the performance of which an individual had a vested interest; but that a mandamus ought not to issue in that case-the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right. The judgment in that case, is understood to have decided the merits of all claims of that description; and the persons on the report of the commissioners found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension list. The doctrine, therefore, now advanced, is by no means a novel one. It is true that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute. It is to deliver a commission; on which subject the acts of Congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable, at the will of the executive; and being so appointed, he has a right to the commission which the secretary has received from the president for his use. The act of con- gress does not indeed order the secretary of state to send it to him, but it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him, than by any other person. It was at first doubted whether the action of detinue was not a specific legal remedy for the commission which has been withheld from Mr. Marbury; in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold, is incapable of being ascertained; and the applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the commission, or a copy of it from the record. This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired, Whether it can issue from this court. The act to establish the judicial courts of the United States authorizes the supreme court “to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.” The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not autho- rized to issue a writ of mandamus to such an officer, it must be because the law is unconstitu- tional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign. The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States. In the distribution of this power it is declared that “the supreme court shall have original juris- diction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.” It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words; the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States. If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW MARBURY V. MADISON 157 U.S. SUPREME COURT, FEBRUARY 1803 body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribu- tion of jurisdiction, made in the constitution, is form without substance. Affirmative words are often, in their opera- tion, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all. It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissi- ble, unless the words require it. If the solicitude of the convention, respect- ing our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no further than to provi de for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction. When an instrument organizing fundamen- tally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning. To enable this court then to issue a mandamus, it must be shewn to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that pur- pose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate juris- diction, that it revises and corrects the proceed- ings in a cause already in stituted, and does not create that cause. Although, therefore, a man- damus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdic tion. The authority, therefore, given to the sup- reme court, by the act establi shing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised. The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, sup- posed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns, to different depart- ments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 158 MARBURY V. MADISON MILESTONES IN THE LAW U.S. SUPREME COURT, FEBRUARY 1803 The government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitu- tion is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a govern- ment with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that t he constitution controls any legis- lative act repugnant to it; or, that the legislature mayaltertheconstitutionbyanordinaryact. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitu- tion apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conform- ably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the con- stitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. Those then who controvert the principl e that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very founda- tion of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed as pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional argu- ments in favour of its rejection. The judicial power of the United States is ex- tended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW MARBURY V. MADISON 159 U.S. SUPREME COURT, FEBRUARY 1803 constitution should not be looked into? That a case ari sing under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey? There are many other parts of the constitu- tion which serve to illustrate this subject. It is declared that “no tax or duty shall be laid on articles exported from any state.” Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted t o recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law. The constitution declares that “no bill of attainder or ex post facto law shall be passed.” If, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve? “No person,” says the constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for convic- tion, must the constitutional principle yield to the legislative act? From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support? The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words, “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States.” Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observa- tion, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitut ion is void; and that courts, as well as other departments, are bound by that instrume nt. The rule must be discharged. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 160 MARBURY V. MADISON MILESTONES IN THE LAW U.S. SUPREME COURT, FEBRUARY 1803 Opinion of the Supreme Court of Arizona, April 22, 1965 163 Opinion of the Supreme Court of California, People v. Stewart, March 25, 1965 173 Briefs to the U.S. Supreme Court Brief for Petitioner 180 Brief for Respondent. . . 200 Opinion of the U.S. Supreme Court, June 13, 1966 305 MIRANDA V. ARIZONA 161 Miranda v. Arizona ISS UE Criminal Procedure HOW TO USE MILESTONES IN THE LAW In the opinions* and briefs* that follow, the reader is invited to explore the issue of interro- gation of criminal suspects and the question of when a suspect’s confession to a crime should be admitted at trial. As you read this section, you may wish to consider the following questions: n Why does the Constitution protect a criminal suspect from being a witness against himself or herself? n Under what circumstances could a police officer ask an individual questions about a crime without having to give the person the Miranda warnings? n What is the purpose of the right to counsel? THIS CASE IN HISTORY You have the right to remain silent. Anything you say may be used for or against you in a court of law. You have the right to an attorney now or at any time during questioning. If you cannot afford an attorney, one will be appointed to represent you, without cost, by the courts. [sample Miranda warning] Law enforcement officers in movies, TV shows, and real life all utter some version of the Miranda warnings prior to interrogating a criminal suspect. In Miranda versus Arizona, the Supreme Court attempted to clarify a criminal suspect’s privilege against self-incrimination under the Fifth Amendment, and right to counsel under the Sixth Amendment, during interrogation. Miranda, which was actually a review of four similar cases at once, was the Court’s attempt to balance the rights of a person accused of a crime with the rights of society to prosecute those who commit criminal acts. Since it was handed down in 1966, the Miranda case has been the subject of continuing analysis and debate, yet its require- ments, for the most part, have withstood the test of time. * In the interest of space, only the opinions of the supreme courts of Arizona and California, which reached different results, and only the briefs in Miranda v. Arizona, are presented. MILESTONES IN THE LAW 162 State v. Mi randa Cite as 401 P. 2d 721 k STATE OF ARIZONA, APPELLEE, V. ERNEST ARTHUR MIRANDA, APPELLANT. NO. 1394. Supreme Court of Arizona. En Banc. April 22, 1965. 98 Ariz. 18 Prosecution on count of kidnapping and rape. The Superior Court, Maricopa County, Yale McFate, J., entered judgment on guilty verdict, and defendant appealed. The Supreme Court, McFarland, J., held that confession of defendant, who from previous arrests was familiar with legal proceedings and personal rights in court and who was picked from police lineup by complaining witness as person who allegedly kidnapped and raped her, made after police had informed him of his rights but had not specifically informed him of right to assistance of council and he himself had not requested and been denied assistance of coun- sel, was not inadmissible by reason of defen- dant’s lacking attorney at time it was made. Affirmed. Reference to “rape” in kidnapping count of information against defendant was proper where rape was alleged to be purpose of kidnapping. A.R.S. § 13–492, subsecs. A-C. Where allegation in kidnapping information against defendant that defendant had allegedly perpetrated kidnapping for purpose of raping complaining witness was necessary and proper element of information, subsequent reiterated reference to alleged rape by use of words “and did rape” were not objectionable as being inflamma- tory inasmuch as those words stated no more than the original necessary reference to matter. A.R.S. § 13–492, subsecs. A-C. Use of word “rape” in first or kidnapping count of information against defendant, to define necessary element of defendant’s alleged purpose for alleged kidnapping, was not, by itself, prejudicial to defendant where use of word was necessary in second or “rape” count of information. A.R.S. § 13–492, subsecs. A-C. Descriptive phrase “not being related in any way to the defendant” in first or kidnapping count of information against defendant, which had mere object of indicating that defendant’s alleged taking of 18–year-old girl did not fall within exception in statute providing for taking of minor by parent, could not have had any inflammatory contents which prejudiced defen- dant. A.R.S. § 13–492, subsecs. A-C. Where word “fear” originally alleged in second or “rape” count of indictment against defendant had been stricken from information prior to trial and, therefore, was not included in information read to jury, original inclusion could not have prejudiced defendant. A.R.S. §§ 13–492,subsecs.B,C,13–611, subsec. A, p ar. 2 . Allowing defendant charged with rape and kidnapping, on his own motion, to have sanity hearing that caused delay of trial, through late filing of medical report, past 60–day period that rule required trial to be brought in, except in case of appropriate showing of good cause by affidavit or defendant’s consent or action, was “good cause,” within section, for continuing trial for additional five days beyond 60–day period. 17 A.R.S. Rules of Criminal Procedure, rules 236, 250. Where prosecuting attorney, who had wide latitude in his argument to jury, stated conclusion in argument, justified by evidence, that 18–year- old complaining witness had acquiesced in alleged act of rape due to her fear of defendant, and trial court’ s immediate instruction to jury to disregard statement and instruction at close of trial limiting jury’s consideration to rape offense charged had effect of precluding prejudice from inflammatory aspect of statement, prejudicial error did not appear. A.R.S. § 13–611, subsec. A, par. 2. Whether defendant charged with rape of complaining witness had actually penetrated 18–year-old complaining witness, as witness affirmatively testified and as defendant’s confes- sion indicated, and whether thereby rape was actually perpetrated were questions for jury. A.R.S. § 13–611, subsec. A, par. 2. All inferences must be construed in light most favorable to sustaining verdict in criminal case. Where there is evidence to support criminal verdict, Supreme Court will not disturb finding of jury. MILESTONES IN THE LAW MIRANDA V. ARIZONA 163 SUPREME COURT OF ARIZONA, APRIL 1965 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION A chief duty of both sher iff ’s office and county attorney’s office is to make sure that people are not unjustly charged with crime; both have duty to protect innocent as well as to detect the guilty. Confession may be admissible when made without an attorney if it is voluntary and does not violate constitutional rights of defendant. U.S.C.A. Const. Amends. 6, 14. Confession of defendant, who from previ- ous arrests was familiar with legal proceedings and personal rights in court, made after police had informed him of his rights but had not specifically informed him of right to assistance of counsel and he himself had not requested and been denied assistance of counsel, was not inadmissible by reason of defendant’s lacking attorney at time it was made. 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 judgement 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 caseofStatev.Miranda,No.1397,98Ariz.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 complain- ing 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 afterwords 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 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 wit- ness 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,” where- upon 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: “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’tdo 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 164 MIRANDA V. ARIZONA MILESTONES IN THE LAW SUPREME COURT OF ARIZONA, APRIL 1965 attorney’s arguing the proposition of fear to the jury; the admission of the confession of defen- dant; 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 a s f ollows: “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 whatso- ever 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 subsec- tions A or B of this section shall be punished as follows: “1. If the person subjected 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. “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 mini- mum sentence has been served. As amended Laws 1956, Ch. 92, § 1.” Defendant contents that there were objec- tionable, prejudicial and redundant, and unnec- essary words in the following portion of the information: “[D]id then and there wilfully, unlawfully and feloniously, seize, confine, abduct, con- ceal, kidnap or carry away one [complaining witness] for the purpose of raping and did not 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. [1–4] 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 on 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. [5] As to the second part of the information charging the crime of rape, defendant contends that because originally the word “fear” was in the information it was prejudicial. However, defen- dant 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 notcontain the word “fear.” Sothe 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.” [6] 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW MIRANDA V. ARIZONA 165 SUPREME COURT OF ARIZONA, APRIL 1965 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, 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 defendant made application for a sanity hearing under Rules of Criminal Procedure, No. 250, 17 A.R.S. (1956), just one week prior to the time of the original trial setting. The trial setting was well within the 60–day period.Itwasdefendant’s applicationforthesanity hearing which caused the delay. At the hearing on this application, and without objection of defen- dant’s counsel, a new date for trial was set—June 10, 1963—which was also within the 60–day period. One of the medical reports was not filed until June 7, 1963. Defendant was thereafter promptly tried—just two days after the ruling was made on the motion for the sanity hearing. Thus, it is evident that the delay of the trial was due to defendant’s waiting until just one week before trial date tomakehis motion for the sanity hearing. This was good cause for continuance. Even with the delay occasioned by defendant’sown action, trial was held June 20, 1963, only five days beyond the 60–day period. Where good cause is shown, under Rules of Criminal Procedure, No. 236, an action may be continued. Westover v. State, 66 Ariz. 145, 185 P.2d 315; Power v. State,43Ariz. 329, 30 P.2d 1059. [7] Defendant contends that there was prejudicial error committed by the deputy county attorney when he argued before the jury that the victim acquiesced in the act due to fear. Defendant contends that this argument, notwith- standing the court’s instruction to disregard it, was so prejudicial and inflammatory as to deny defendant a fair and impartial trial. We cannot agree with defendant’s interpretation. Certainly the testimony justified the county attorney’s conclusion of fear. There was such testimony by the complaining witness as: “He had my hands behind my back, and one hand over my mouth, and started pulling me toward the car”; “He tied my hands and my ankles, after he got out, he put this sharp thing to my neck and said ‘Feel this’ * * * I kept screaming ‘Please let me go,’”;and when he was undressing her, she stated she was crying again and said “Please don’t.” This court has repeatedly held that attorneys are given a wide latitude in their arguments to the jury. State v. Dowthard,92Ariz.44,373P.2d357;State v. Thomas, 78 Ariz. 52, 275 P.2d 408; Statev.McLain, 74 Ariz. 132, 245 P.2d 278. In addition, any possible prejudice was corrected by the court’s prompt instruction to disregard, coupled with the instructions given at the close of a trial, viz., limiting the jury’s consideration to the offense charged—Rape, A.R.S. § 13 –611, Subsec. A, Par 2. [8–10] Defend ant contends that the verdict is unsupported by the evidence, viz., there is no showing that the victim resisted the perpetra- tion of the rape. This court cannot find merit in this contention. The victim testified that she pushed against defendant with her hands, and kept screaming; that she was trying to get away, and she testified that he was a lot stronger than she was, and she could not do anything. She also testified to penetration and defendant’s confes- sion showed penetration. These were questions for the jury, and the jury decided against defendant. We have repeatedly held that all inferences must be construed in the light most favorable to sustaining the verdict, and that where there is evidence to support a verdict we will not disturb a finding of a jury. State v. Hernandez, 96 Ariz. 28, 391 P.2d 586; State v. Maxwell, 95 Ariz. 396, 391 P.2d 560. Defendant contends that admission into evidence of his written confession was error for the reason that he did not have an attorney at the time the statement was made and signed. The police officers Young and Cooley testified to oral statements made to them before the signing of the written confession. Their testi- mony was substantially the same. They first saw defendant at his home at 2525 West Maricopa on March 13, 1963, when they went there for the purpose of investigating a rape. They took defendant to the police station and placed him in a “line-up” with “four other Mexican males, all approximately the same age and height, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 166 MIRANDA V. ARIZONA MILESTONES IN THE LAW SUPREME COURT OF ARIZONA, APRIL 1965 . disturb finding of jury. MILESTONES IN THE LAW MIRANDA V. ARIZONA 163 SUPREME COURT OF ARIZONA, APRIL 1965 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION A chief duty of both sher iff ’s office and county. must be discharged. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 160 MARBURY V. MADISON MILESTONES IN THE LAW U.S. SUPREME COURT, FEBRUARY 1803 Opinion of the Supreme Court of Arizona, April. departments. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 158 MARBURY V. MADISON MILESTONES IN THE LAW U.S. SUPREME COURT, FEBRUARY 1803 The government of the United States is of the latter