WILLIAM THOMAS, Defendant and Appellant, v. THE TERRITORY OF ARIZONA, Respondent

[Criminal No. 233. Filed March 22, 1907.] [89 Pac. 1131.] WILLIAM THOMAS, Defendant and Appellant, v. THE TERRITORY OF ARIZONA, Respondent. APPEAL from the District Court of the Fourth Judicial District, in and for the County of Mohave. Richard E. Sloan, Judge. Reversed. Fred "W. Morrison, and Robert E. Morrison, for Appellant. E. S. Clark, Attorney General, for Respondent. Appellant contends that the verdict is contrary to the evidence. The record, however, shows clearly that there is evidence to sustain the verdict. But that new trials are not granted upon mere insufficiency of evidence, see Territory v. Miramontez, 4 Ariz. 179, 36 Pac. 35; Hackett v. Territory, 5 Ariz. 251, 52 Pac. 358; Anderson v. Territory, 6 Ariz. 185, 56 Pac. 718; Dickson v. Territory, 6 Ariz. 199, 56 Pac. 971; Goldman v. Sotelo, 7 Ariz. 23, 60 Pac. 696. The remarks of counsel for the'territory, which appellant contends are improper and calculated to arouse race prejudice against the defendant, a negro, and to defeat the ends of justice, i. e., “And this blue-gummed negro comes from the black belt of Mississippi, where rapists are bom,” while uncalled for, is not' sufficient to warrant a reversal. We find that in the great majority of eases there must be something more than mere denunciation, or a random appeal to passion and prejudice to amount to such misconduct as will warrant a reversal. For cases where a similar remark was held not error, see Gibson v. Territory, 8 Ariz. 42, 68 Pac. 540; People v. Glaze, 139 Cal. 154, 72 Pac. 965; People v. McRoberts, 1 Cal. App. 25, 81 Pac. 734. [MAJORITY — PER CURIAM.] PER CURIAM. — The Chief Justice and Mr. Justice Campbell are of the opinion that the evidence in this ease is insufficient to sustain a conviction of an assault with intent to commit rape, and that therefore the judgment of the lower court should be reversed. Mr. Justice Nave dissents from the views of the Chief Justice and Mr. Justice Campbell, but is of opinion that the judgment should be reversed on the ground of improper remarks made by special counsel for the territory during the progress of the trial prejudicial to the appellant. From the views of Mr. Justice Nave the Chief Justice and Mr. Justice Campbell dissent. Mr. Justice Doan dissents from the views of all the other justices sitting, and is of the opinion that the judgment should be affirmed. The majority of the court having reached the conclusion that the judgment should be reversed, it will be so ordered; but inasmuch as a majority of the members of the court are not in accord in their reasons for a reversal, an opinion setting forth the grounds and reasons for the conclusions reached would be but an expression of a minority of the court, and would serve no useful purpose, and none, therefore, will be given. The judgment of the district court is reversed, and the case remanded to that court for a new trial.