Appellant Randolph, hereinafter called defendant, appeals from a judgment of conviction of first degree rape in the Supеrior Court of Pima County. A.R.S. § 13-611 subsec. A, par. 3.
Both the defendant and Miss A., the complaining witness, worked and lived at the Rancho Diablo in Tucson. Construing the facts mоst favorably to support the conviction, the following appears: At approximately one o’clock a. m. on May 10, 1964, .Miss A. heard a nоise outside her apartment. She looked and saw the defendant moving swiftly out of the shadows. He unlocked the door with a key later found in his possession, entered and pushed Miss A. to the bed. When she screamed he held a pocket knife to her throat and told her to be quiet. She submitted to an аct of sexual intercourse because he said he would use the knife on her if she resisted. After defendant finished and while he was looking for matches to light a cigarette, Miss A. hid the knife in her clothing. They talked for a while, then the defendant expressed a desire to have intercourse again. When Miss A. objected, he started searching for the knife whereupon she complained of a head
At the beginning of the triаl and while the jurors were sitting in the court anteroom, the Sheriff brought defendant to the courtroom with his hands handcuffed behind his back. The handcuffs were removed just before defendant entered the courtroom. A motion for mistrial was made and denied which is the first assignment of error. The record indicates the jurors might have seen defendant in handcuffs. State v. Chavez,
Defendant contends the trial court erred in admitting the testimony of state witness Horne who repeated the details of the complaint made to him by Miss A. Over objection, the court allowed the hearsay statement as an excited utterance and part of the res gestae. Defendant contends the ruling was erroneous because approximately fifty-five minutes еlapsed between the alleged rape and Miss A.’s statement to Mr. Horne. The admissibility of the details of a rape victim’s complaint as within the res gestae exception to the hearsay rule is a matter within the sound discretion of the trial court and each case must depend upоn its own facts. The test for the admissibility of such statements was clearly set forth in State v. Owen,
“ * * * If they were spontaneous exclamations and a pаrt of the 'circumstances which are the automatic and undesigned incidents of the particular*256 act in issue,’ * * * then the court was correct in sо ruling (admitting into evidence). There are various factors affecting the spontaneity of statements made to others by the victim of an offense. ‘Time is not the sole test for either the admission or rejection of such proof; instinctiveness is the requisite.’ * * * There must he no break or letdown in the сontinuity of the transaction, but it must be before there has been time to contrive and misrepresent, and while the nervous excitement maybe supposed still to dominate and the reflective powers to be yet in abeyance, precluding afterthought or deliberate design.” 94 Ariz. at pp. 406-407,385 P. 2d at p. 701 .
Miss A.’s complaint to Mister Horne was properly admitted.
Defendant next assigns as error the trial court’s refusal to give the following charge:
“In arriving at a decision you should take into consideration the mоral character of the Prosecutrix and whether she has been guilty of prior unchaste acts.”
Defendant further advised the court that the word “mаy” could he substituted for the word “should”. The state did not object when Miss A. was cross examined and admitted her prior unchastity. Hence, the jury had that evidenсe before it when determining whether she was forcibly raped or consented to the defendant’s advances as he contended. The court erred by refusing to give the requested instruction. The defendant’s requested instructions which go to the gist of the theory of his defense and are supportеd by the competent evidence must be given. Walker v. State of Arizona,
Defendant contends the trial court erred in failing tо give the jury a cautionary instruction that an accusation of rape is easy to make, hard to prove and harder still to defend against. The instruction was not requested but defendant claims it must be given, citing State v. Brady,
Defendant claims he was deрrived of a fair and impartial trial because the prosecuting attorney made the following remark to the jury during summation:
*257 “Now, if you are going to turn this mаn loose on the evidence you have heard here, I think you might as well raze the courthouse and have a parking lot here. On the facts that you have heard here, this is not a decision that you could come to.”
The court subsequently instructed the jury as follows:
“Of course, remarks of counsel upon argument, either during the trial or аt the close of the case, are not evidence.”
In determining whether the prosecutor’s remarks are so objectionable as tо require a reversal, we have stated the test 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. State v. Gоodyear,
In Goodyear the prosecuting attorney told the jury that people in the community would not be safe if the defendants were acquitted. We held no error. In State v. Dowthard,
Finally, defendant contends the verdict is contrary to the weight of the evidence. Viewing the record most favorably to support the verdict, we find substantial evidence to support the conviction. State v. Bearden,
Affirmed.