Opinion
No. 1 CA-CR 386.
August 24, 1972.
The Superior Court of Mohave County, Cause No. CR-2543, Frank X. Gordon, Jr., J., found defendant guilty on two felony counts of drawing checks on insufficient funds or credit, and he appealed. The Court of Appeals, Jacobson, J., held that since it was undisputed that defendant wrote the checks involved and that they had been dishonored by the bank on grounds of insufficient funds, and since there was testimony that defendant's own accountant had informed him prior to the time he wrote the checks in question that a check upon which he relied to cover those insufficient checks had also been dishonored, it could not be said, under the circumstances, that the complained of comments of the prosecutor constituted an "obvious miscarriage of justice" justifying a reversal in the absence of objection thereto.
Judgment affirmed.
Jay H. Bundy, Kingman, for appellant.
Gary K. Nelson, Atty. Gen., by Mary Z. Chandler, Asst. Atty. Gen., Phoenix, for appellee.
The only error raised by defendant in support of his argument that his conviction by a jury on two felony counts of drawing checks on insufficient funds or credit should be reversed is that the prosecutor in his closing argument to the jury made allegedly prejudicial remarks. However, the defendant made no objection in the trial court as to the comments of which he now complains.
It is the well-settled rule that it is the duty of counsel and not of the trial court to voice objections to arguments of counsel that are objectionable, and that failure to do so constitutes a waiver of any right to review. State v. Maloney, 105 Ariz. 348, 464 P.2d 793 cert. den. 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970); State v. White, 102 Ariz. 162, 426 P.2d 796 (1967); State v. Stout, 5 Ariz. App. 271, 425 P.2d 582 (1967).
The only exception to this rule is where the comments made are of such magnitude as to result in an obvious miscarriage of justice. State v. Smith, 101 Ariz. 407, 420 P.2d 278 (1966); State v. Marsin, 82 Ariz. 1, 307 P.2d 607 (1957); Rutledge v. State, 41 Ariz. 48, 15 P.2d 255 (1932).
In this case it was undisputed that the defendant had written the checks involved and that they had been dishonored by the bank upon presentment on the grounds of insufficient funds. Further, there was testimony that defendant's own accountant had informed him prior to the time he wrote the checks in question that a check upon which he relied to cover these insufficient checks had also been dishonored. Under these circumstances the comments of the prosecutor complained of did not constitute an "obvious miscarriage of justice."
Judgment affirmed.
HAIRE, Chief Judge, Division 1, and EUBANK, J., concur.