137 P. 412 | Ariz. | 1913
The appellant complains of errors committed on the trial in admitting evidence, in rejecting evidence, in instructions to the jury, in refusing a new trial because of the failure of the evidence to establish a material allegation of the information, and in refusing to issue a certificate of probable cause for appeal.
The appellant was charged in the information with having on or about the tenth day of November, 1911, committed the crime of rape upon one, Fannie L. Aronwald, a female under the age of 17 years, she not being the wife of him (the said George L. Lenord).
The prosecution offered a number of witnesses, who gave evidence tending to establish, among Other things, the act of criminal intercourse and a state of pregnancy of the prosecutrix resulting therefrom, and the birth of the child on February 5, 1913. The prosecution then offered a written document in the form of a contract purporting to have been made between George L. Lenord, and the party of the first
The prosecution proved the signature upon the document and a copy thereof as that of the accused, and proved that he signed both the paper and the copy, and proved that they were duplicates, and offered them in evidence. Defendant objected for the reason that the offer was a confession, and was not shown to have been voluntarily made. The objection was sustained. Then the document was offered as an admission against interest, and admitted as such over the objection of defendant; to which ruling defendant reserved an exception. These are the grounds for the first assignment of error; but the allegation of error is in these words: ‘£ The court erred in admitting in evidence the agreement dated November 22, 1912, as it was proven to have been executed under duress, and was not a voluntary confession, and hence inadmissible. ’ ’ The record does not hear out this allegation that it was proven to have been executed under duress. At the time it was admitted in evidence, it was shown to have been executed by the defendant, and upon its face tended to corroborate the evidence of the ultimate fact sought to be established, that
That this evidence was introduced solely for the purpose of corroborating the prosecutrix as to the principal fact of her having had sexual intercourse with the defendant on November 10, 1911, was well understood, and it, as well as other acts of the same kind, which took place subsequently to the one specifically charged in the information, was admissible for that purpose. Leedem v. State, 81 Neb. 585, 590, 116 N. W. 496; People v. Mathews, 139 Cal. 527, 73 Pac. 416; Smith v. Commonwealth, 109 Ky. 685, 60 S. W. 531; State v. Robertson, 121 N. C. 551, 28 S. E. 59; Sykes v. State, 112 Tenn. 572, 105 Am. St. Rep. 972; 82 S. W. 185; State v. Borchert, 68 Kan. 360, 74 Pac. 1108.
After the evidence had been admitted, the appellant offered the circumstances under which the contract was made and signed. Such evidence was not offered in support of a motion to exclude the evidence, and cannot be considered to have that effect, in the absence of such motion, the evidence having been previously admitted. If the circumstances surrounding the execution of the document were such as would satisfy the trial court that the so-called contract was executed under duress, or from any cause it appeared that it was not the voluntary act of the appellant, and such evidence was submitted to the court, or an opportunity was asked to submit such evidence to the court before the document was admitted, or having admitted the document, if such .evidence was offered to the court in support of a motion to exclude such evidence, the evidence of the circumstances would then bear upon the admissibility of the document as evidence, and would be addressed to the consideration of the court in admitting or in excluding the same as evidence. The record discloses that the circumstances were not so offered for the consideration of the court, but were offered as other evidence, for the consideration of the jury, and, as such, had a bearing not upon the admissibility of the document attacked thereby, but upon the weight the jury would give to such document as evidence. The evidence of the circumstances of the execution of the document was addressed to the weight and not to the admissibility of the evidence.
The record discloses that counsel had the prosecutrix under cross-examination, and had developed the fact that, while she was in California, she wrote the accused, asking him to send her some money. He said he would send her money, but failed to do so. She was asked why she came back, which was met by an objection, and then she was asked: “Did you or did you not state to Lenord that, if he would not pay you $2,500, that you would come back here and have him prosecuted, and that if he would pay you that you would drop it, and it would be all right?” An objection was sustained to the question. Counsel stated, before the court ruled upon the objection, that the evidence was material to show motive of the entire case, and that he expected to follow it up with a little more just like it, and intimated that the statements were put in for impeaching purposes. This is the state of the record upon which the error complained of is assigned. Clearly the circumstances under which the question was asked compel the candid mind to conclude that the question called for an answer giving the contents of letters written by the prosecutrix to the accused. If so, the accused would be presumed to have the possession of those letters, or to be able to •account for their absence, and they would be the best evidence of their contents. The question called for secondary evidence, and not the best evidence. This was a sufficient objection to the offer as made. In the absence of any evidence that the prosecutrix instituted the prosecution, her motive in the ease was immaterial. She had admitted that she requested money, and it was in evidence that she did not receive the money. Appellant contends that because it was in evidence over his objection that the accused had made an agreement providing for the payment of $2,500, that it was eminently proper to ask this witness the question as to whether or not she had not offered to withhold the prosecution if money was paid her. It would be eminently proper to offer such testimony in connection with testimony that the prose
The complaint is made that the court erred in instructing the jury to find the defendant guilty, without proof or evidence that the prosecuting witness was mot the wife of the defendant. The appellant has not pointed out wherein the court gave any instruction to the jury to find the defendant guilty, without proof or evidence that prosecuting witness was not the wife of the defendant. In order to justify a conviction under the information, it was necessary for the state to establish from competent evidence, to the satisfaction of the jury, beyond a reasonable doubt, every material allegation contained in the information, and every fact essential to the crime charged. That the prosecutrix was not the wife of the accused at the date of the act was an allegation in the information, and such allegation was material, and the establishment of the fact from the evidence beyond a reasonable doubt was essential to a conviction.
A complete search of the instructions given fails to disclose such instruction complained of. In his argument, appellant particularly designates the following paragraph of the instructions as containing the charge alleged in the assignment: “You are instructed, however, that if you find from the evidence, beyond a reasonable doubt, that the defendant, on or about the 10th day of November, 1911, did have sexual intercourse with the said Fannie L. Aronwald, and you further find from the evidence, beyond a reasonable doubt, that at the time of the commission of said alleged offense, the prosecuting witness, Fannie L. Aronwald, was under the age of 17 years, you should find the defendant guilty as charged. ’ ’
The state Constitution requires that the “judges shall not charge juries with respect to matters of fact nor comment thereon, but shall declare the law.” See. 12, art. 6. The statute (subd. 6, sec. 921, Ariz. Pen. Code 1901) in no way conflicts with this constitutional provision, wherein it provides that the “judge may then (when the evidence on both sides is closed) charge the jury, and must do so on any points pertinent to the issue if requested by either party; and he must not state the. testimony, but shall declare the law.” The expression in the Constitution and the statute means that the judge shall instruct the jury as to the general principles of the law which of necessity must be applied by them in reaching a correct conclusion upon the questions submitted for their consideration. That duty was performed by the
Appellant complains of the following paragraph of the instructions: “If you find from .the evidence in this case beyond a reasonable doubt that on or about the tenth, day ■of November, 1911, defendant had sexual intercourse with the complaining witness, . . . and you are further convinced beyond a reasonable doubt that the said Fannie L. Aronwald, at the time said alleged crime was committed, was 17 years ■old or older, you are then instructed that, notwithstanding the fact that you find that the defendant did have such sexual -intercourse with the prosecuting witness, your verdict should be not guilty.” Appellant contends that this instruction places upon defendant the burden of establishing beyond a reasonable doubt the age of the prosecutrix before he is entitled to an acquittal; whereas the law only requires a reasonable doubt as to her age to exist to entitle him to an acquittal. ’The instruction as given is open to a great extent to the criticism advanced. However, all the evidence in the record bearing upon the question of the age of the prosecutrix at the date of the act of intercourse fixes her age as under 17 years. An effort was made to discredit the testimony of the prosecutrix and her father by proving that they had each .made statements of her age that conflict with their testimony •given on the trial touching that question. The record discloses no evidence tending in any manner to fix the age of prosecutrix at 17 years or older at the date of the alleged criminal act. The jury was, during the course of the instruc
The appellant contends that there is no evidence in the case proving or tending to prove that the prosecutrix was not the wife of the defendant. This question was raised upon a motion for a new trial and otherwise, and it is sufficiently assigned as error on this appeal. This is the principal error relied upon by appellant for a reversal of the judgment of conviction. A careful examination of the evidence in the case discloses that no direct proof was offered by the prosecution, or by the defendant, upon the question whether the prosecutrix was or was not his wife at the time the act was accomplished. The cause was tried by all the parties and by the court upon the theory that the accused and the prosecutrix were not husband and wife.
We find abundant circumstantial evidence in the record bearing upon the question of the relation of the parties. The evidence presents these circumstances: That the prosecutrix in 1896 was a nursing child, in the family of Wolf Aronwald at Warsaw, Russia; that she came to Douglas in 1907 as a part of the family, and entered the public schools there; that she worked in Kline’s store in Douglas, and, after she quit working there in 1911, she worked for her father; that about the 10th of November, 1911, she applied to George L. Lenord for a position, but was not employed by him; subsequent to that date she made frequent applications to him for a position; that she came to his store with her little sisters and other relatives many evenings and waited for the picture shows to open; that she left with the defendant for
The appellant denied ever having had sexual intercourse with the prosecutrix. In reference to a contract he had signed, in which he admitted the fact that he was the father of her unborn child, under date of November 22, 1912, when asked by his counsel why he signed the document, answered: ‘ ‘ Why, I had another Jew girl to make an allegation against me that I was under bond for, and I had just recently married, just a short time before that, and Mr. French called me up. ...” He did not sign the contract then, but several days after he was called and told that the Jews were getting impatient (by the Jews meaning the family of the prosecutrix), and that he had better do something, in answer to which information, appellant said: “Well, I will send my wife home and you bring them down to my store. ... I signed it and dug up $42.50 to pay their transportation to Los Angeles. They wanted to visit the girl.” Witness Miss Rogers testified that .Lenord was married to her sister at the time of the trial.
These facts are certainly inconsistent with the fact that the prosecutrix was the wife of the accused on the tenth day of November, 1911. In April, 1913, he was the husband of Miss Rogers’ sister. On November 22, 1912, he had recently married, according to his own testimony. On November 10, 1911, the prosecutrix first applied to him for a position, when he accomplished the act. If the law permits the proof of the allegation that the prosecutrix was not the wife of the accused to be made by circumstantial evidence, there is such evidence in abundance in this record. If the law requires direct proof of such fact, the prosecution has failed, and the verdict is contrary to the law and evidence.
Beyond question, under our statute it is necessary to allege and prove that the prosecutrix was not the wife of the accused at the date of the alleged criminal act, as that fact is an essential ingredient of the crime; still it is not absolutely necessary to prove that fact by direct and positive testimony, but, like every other essential fact, it may be proven by facts and circumstances from which the conclusion may be drawn. State v. May, 59 Wash. 414, Ann. Cas. 1912B, 113, 109 Pac. 1026; State v. Pipkin, 221 Mo. 453, 120 S. W. 17; State v. Reed, 153 Mo. 451, 55 S. W. 74; Brenton v. Territory, 15 Okl. 6, 6 Ann. Cas. 769, 78 Pac. 83; Munger v. State, 57 Tex. Cr. 384, 387, 122 S. W. 874. The fact may be established by circumstantial evidence, and we think it was sufficiently so established in this ease. The facts and circumstances bearing upon the question could not be true and yet the fact exists that the prosecutrix was the wife of the accused. Even the Gonzalez case makes that the rule for decision.
No reversible error appearing, the judgment is affirmed.
FRANKLIN, C. J„ and ROSS, <J., concur.
Application for rehearing denied.