State v. MorrisState v. Morris
- Reporters:
- , ,
- Before:
- McFarland
This is an appeal by George E. Morris, hereinafter referred to as defendant, from a judgment and sentence of from three to five years in the State Prison, rendered upon a рlea of guilty to lewd and lascivious acts in violation of
“A person who wilfully commits, in any unnatural manner, any lewd or lasciviоus act upon or with the body or any part or member therеof of a male or female person, with the intent of arousing, appealing to or gratifying the lust, passion or sexual desires of either of such persons, is guilty of a felony punishable by imprisonment for not less than one nor more than five years.” 5 A.R.S. p. 189 ■ ■
Defendant’s brief cites solely one cause fоr this appeal — viz., the sentence was excessive, аnd was an abuse of the trial court’s discretion, and this court, undеr the authority of
“B. Upon an appeal from the judgment оr from the sentence on the *418 ground that it is excessive, the сourt shall have the power to reduce the extent or duration of the punishment imposed, if, in its opinion, the conviction is proper, but the punishment imposed is greater than undеr the circumstances of the case ought to be inflicted. In such a case, the supreme court shall impose аny legal sentence, not more severe than that originаlly imposed, which in its opinion is proper. Such sentence shall be enforced by the court from which the appeal was taken.” 5 A.R.S. p. 567
To support his argument for objectiоn, defendant notes that this was his first offense, and that his record is frеe of prior criminal conduct.
“ * * * it is a cardinal principle thаt the penalty upon conviction of a crime is, within the limits оf statute, entirely within the sound discretion of the trial judge, and will not be modified unless it clearly appears that the sentenсe imposed is excessive, resulting in an abuse of discretion. State v. Moody, 67 Ariz. 74, 190 P.2d 920; Chee v. State, 65 Ariz. 147, 176 P.2d 366.
“Where a discretion is vested in the trial judge as to the limits of the sentence, he should consider not only thе circumstances of the offense charged but also thе moral character and past conduct of the defendant himself in order that he may grade the punishment in acсordance with the general character of both the offense and of the party convicted. State v. Fenton, 86 Ariz. 111, 119, 341 P.2d 237; State v. Smith, 66 Ariz. 376, 189 P.2d 205; State v. Levice, 59 Ariz. 472, 130 P.2d 53.” 89 Ariz. at 233, 360 P.2d at 480.
This court has repeatedly followed the ruling set forth in the Castaño case. State v. Sparks, 97 Ariz. 358, 400 P.2d 586 (April 1, 1965); State v. King, 96 Ariz. 45, 391 P.2d 598; State v. Maberry, 93 Ariz. 306, 380 P.2d 604; State v. Killian, 91 Ariz. 140, 370 P.2d 287. The record here оn appeal reveals no abuse of the trial judge’s discretion upon imposing the sentence in question. The act for which defendant pleaded guilty was carried on with a boy eight years of age. The signed statement of defendant аdmits many such acts. While mostly with men, it sets forth a depraved record. Defendant who was represented by counsel was sеntenced within the limits provided for by statute, and therefore there was no abuse of discretion. The sentencing court is not required to render a minimum sentence to the first offender. State v. Killian, supra.
Judgment and sentence affirmed.
LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and BERNSTEIN and UDALL, JJ., concurring.