165 P. 331 | Ariz. | 1917
The appellant was charged with the commission of the crime of rape, on September 12, 1915, by a sworn complaint filed with a justice of the peace on the fourteenth day of September, 1915. On September 27, 1915, the defendant appeared for the preliminary examination of the charge. Having examined the witnesses produced by. the parties, the magistrate entered the following order, to wit:
“After listening to the evidence adduced, it appearing to the court that there is sufficient evidence to believe the defendant guilty as charged, I hereby order that he be held to answer the same and that his bond be fixed at $3,000.”
On October 7, 1915, the county attorney of Navajo county filed an information in the superior court charging the defendant with the commission of the crime of violent rape on EVa Dick, on or about the twelfth day of September, 1915. The defendant, having been formally arraigned on the charge, entered his plea of not guilty.
On February 29, 1916, the defendant presented his motion to withdraw his plea of not guilty for the purpose of presenting a motion to set aside the information upon the grounds “that before the filing of said information he had not been legally committed by a magistrate for the crime of rape, or for any other crime. ’ ’ The motion was denied. The appellant urges as error the order of the court refusing to permit him to withdraw his said plea for said purpose.
The defendant thereupon moved for a postponement of the trial until the next jury term of the court, upon the ground and for the reason of the absence of a witness, Len Taylor. The motion is accompanied by an affidavit of the defendant setting forth that this party is a resident of the town of Winslow, and has been for many years last past; that a subpoena was issued for him on February 24th and placed in
“That he [defendant] cannot prove said facts by any other witness. That he can procure the attendance of said witness, Len Taylor, at the next jury session of this court. That said testimony is material to defendant’s defense. That the said witness is not absent by the consent or procurement of the defendant. ”
The county attorney in behalf of the state opposed the granting of the postponement of the trial on account of the absence of the witness Len Taylor, and in support of his opposition to such postponement filed an affidavit setting forth the diligence used by the county attorney to locate the said absent witness. A number of subpoenas were caused to be issued and placed in the hands of the sheriff of Navajo county and in the hands of the sheriffs of other counties of the state, and all of which have been returned not served because the witness could not be found. The county attorney in his affidavit denies that the witness would testify as contended by the defendant, and. sets forth the substance of the facts the state alleges it can prove by the said witness in support of the charge, and alleges that the witness is not absent by the consent or procurement of the prosecution. Upon due consideration, the court denied the defendant’s motion for a postponement of the trial. Such order is urged on this appeal as error.
The appellant in his brief complains that the court failed to admonish the jury as required by law upon a number of occasions when the jury retired from the court in charge of the bailiffs. The minutes of the court are silent upon this matter, but the question is raised for the first time on this appeal. This court must presume, the record being silent, that the trial court performed its duty, and will not inquire for the first time on appeal whether that duty has been violated; the record being silent with regard to the matter. The defendant was present at the trial and may have objected, and should have objected to any failure of the trial court to follow the prescribed procedure. We presume if defendant deemed his rights jeopardized by the alleged omission he would have timely objected, and if he saw and did not object, or failed to see any irregularity in the matter, he
The appellant depends upon Fertig v. State, 14 Ariz. 540, 133 Pac. 99, as supporting his proposed motion to set aside the information. In that case we had before us for consideration the sufficiency of a commitment to justify the county attorney filing an information based thereon. The commitment in question ordered the defendant held to answer a charge of “felony,” and the information filed charged the commission by the defendant of rape. There we said:
“The order of commitment may be for an entirely different offense from that charged in the complaint. The magistrate may hold defendant for ‘any public offense’ of which he has no jurisdiction to try and determine.”
The commitment having recited that the defendant was held to answer the crime of felony, which was made to appear to the magistrate from the evidence adduced had been committed. The crime to answer which the accused is held must be determinable from the order committing the accused to answer. If, by an examination of the magistrate’s order committing the accused to answer, the prosecuting attorney is able to definitely determine and exactly know the particular crime the accused has been held to answer, then it is the plain, simple duty of the prosecutor to prepare the information charging the accused with the commission of the offense for which the accused has been held to answer. In this case the magistrate examined the accused on a charge of rape, and from the evidence he became satisfied that the defendant is guilty “as charged” and held him to answer the “same.” Gould the prosecuting officer be mistaken as to what crime the magistrate believed had been committed for the commission of which the accused was held to answer? I think not. The crime for the commission of which the accused was held to answer was that charged in the complaint, and no other. Had the order of commitment declared that the magistrate believed from the evidence produced that a felony had been committed and thereupon ordered the accused held to answer the same, we would have then a parallel case with the Fertig case. The prosecuting attorney must be credited with having some degree of understanding, and so credited when he took up the order of commitment and found that this accused was held to answer a charge proven to the satisfaction of the
The court correctly refused to permit the defendant to withdraw his plea of not guilty for the purpose of moving to set aside the information for the reasons and on the grounds urged.
The refusal of the trial court to grant the defendant’s application to postpone the trial of the cause until the next jury term of the court, because of the absence of Len Taylor, a witness, was asserted as a ground for a new trial, and properly so, under subdivision 4 of section 1105 of the Penal Code of Arizona of 1913, to wit:
“When a verdict has been rendered against the defendant the court shall, upon his application, grant a new trial, in the following cases: ... (4) When the court has committed any material error, calculated or tending to injure the rights of the defendant.”
“When an action is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day.” Section 1012, Penal Code 1913.
The cause shown by the affidavit of the defendant for a postponement of the trial consisted of" the showing that the defendant expected to prove by Len Taylor, the absent witness, the following circumstances, briefly stated, to wit: He expected Len Taylor to testify that defendant was introduced to Eva Dick as Charles Quayle, his true name; that Eva Dick, and two other persons, rode with the defendant in defendant’s one-seated Ford automobile immediately following the first meeting and the introduction of the defendant to Eva Dick; that thereafter other rides with the like number of persons were had in the same automobile, and on each said occasion the time was at night after 8 o’clock, and on each of said occasions and rides the defendant drove the machine;
The court determined the issues raised by the motion and opposition thereto against the defendant’s contention. The granting of a postponement of the trial is a matter within the sound legal discretion of the trial court, and, when the action of the court is brought into question on appeal, the ruling made will not be disturbed by an appellate court unless it is made to appear that such discretion has been abused, to the defendant’s prejudice. The trial court reviewed its order refusing to postpone the trial of the cause, passing on the twelfth paragraph of defendant’s motion for a new trial, and reaffirmed the former ruling made, “both upon the showing made at the time of the motion for the continuance, and the showing made at this time” — the time of ruling on the motion for a new trial.
In support of the motion for a new trial upon the ground of error in refusing a postponement of the trial, the defendant reasserted the materiality of Len Taylor’s testimony, and excused his absence from the trial, as a further reason why the trial should have been postponed, that witness Len Taylor was absent because of threats made against him by Eva Dick at a conversation had on September 13, 1915, which fact was unknown to defendant until after the trial was finished. The affidavit of Len Taylor is presented in support of the motion, and bears date of April 1, 1916. The verdict was returned and recorded March 3, 1916. The motion for a new trial was
“ . . . And as a result of said conversation affiant left his home and the process of this court for the reason that affiant was threatened by the said Eva Dick during this last-mentioned conversation, and in order to protect himself from, and in order not to have himself implicated, as a defendant, in any wrongful criminal prosecution, he left the jurisdiction of this court in order that he could not be subpoenaed as a witness on behalf of the defendant in the above-entitled cause.”
From this fact alone the court would have permitted the court’s process abused by granting a postponement, and the fact is evident that the witness would have been absent at the next jury term of the court, and all future terms of the court until this cause was disposed of. He shows most clearly and unequivocally that his purpose was, and still is, to avoid the process, of the court to the end that he will not be required to give testimony on the trial of this charge. Neither the state nor the accused can have the benefit of his testimony in this case at any time, is the matter made definite by this portion of his affidavit. The matter of the correctness of the order refusing to postpone the trial is cleared of all doubt by Len Taylor’s purported affidavit in support of the motion for a new trial urged on that ground.
The appellant contends that the evidence fails to sustain the conviction in the particular that the evidence fails to show resistance on the part of the prosecutrix which was overcome by the accused. The appellant does not contend that all evidence of resistance is wanting in the record, but seems to contend that the evidence is insufficient in this class of criminal cases to justify a conviction. He refers to Sowers v. Territory, 6 Okl. 436, 50 Pac. 257, as a portion of his argument.
The authorities treating criminal law subjects have for a long period of time treated rape as exceptional in the particulars of an examination into the sufficiency of the evidence to support a conviction, and in matters of procedure differing
“Sir Matthew Hale, in 1 Pleas of the Crown (Ed. 1778), p. 363, distinguishes this character of case and the procedure from other criminal cases, and lays down certain rules and admonitory advice that have been approved by the courts of every jurisdiction since that day. He says: ‘It is true that rape is a most detestable crime, and therefore severely to be punished, with death; but it must be remembered that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent.’ ”
He mentions some instances, and comments on them, and continues:
“I only mention these instances that we may be more cautious upon trials of offenses of this nature, wherein the court and jury may with so much ease be imposed upon without great care and vigilance, the heinousness of the offense many times transporting the judge and the jury with so much indignation that they are hastily carried to the conviction of the person accused thereof, by the confident testimony, sometimes of malicious and false witnesses.”
The information charges rape as defined by section 231, subdivision 3, of the Penal Code of 1913, as follows:
“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: ... (3) Where she resists, but her resistance is overcome by force or violence.”
Section 233 of the Penal Code of 1913, provides that:
“The essential guilt of rape consists in the outrage to the person and feelings of the female. Any sexual penetration however slight, is sufficient to complete the .crime. ’ ’
The accused testified on the trial in his own .behalf, and from his testimony and from all of the testimony in the case, the only circumstance urged as tending to contradict the claim made by the prosecutrix that she resisted the accused’s assault, and that her resistance was maintained until overcome by force, is the circumstance that the prosecutrix persisted in her wish that the accused would marry her after the crime was committed and until she was informed that the accused was already married. The accused insisted on the trial, and yet insists on this appeal, that this prosecution is
The record contains no evidence of physical facts corroborating the story of the accused bearing on the matters of the alleged consent and nonresistance, but the story told by the prosecutrix of the force used by the accused to overcome, and which did overcome her resistance, is corroborated by the physical facts in evidence, and if such facts are true, and the jury’s verdict brands them true, they are silent witnesses, which testify in such terms as may carry belief to a moral certainty and to the exclusion of any hypothesis other than the guilt of the accused. The very fact appearing that this girl was found trying to hide her shame, trying to get away from the publicity brought about by the prosecution of the accused on this charge, would not be proof or evidence tending to disprove her story of the outrage. While the evidence discloses that the prosecutrix said and did inconsistent things after the occurrence was past, she at no time told any person a different story of the manner and means used by the accused in accomplishing the outrage — from the story she told in the beginning of the prosecution and on the stand while testifying as a witness. The jury saw all of the witnesses, heard them testify, and had the opportunity to observe their manner while testifying and to observe many things which were or may have been convincing to a juror, but impossible of recording for the consideration of an appellate court. In the absence from the record of many of the things which a juror would have the opportunity to observe during the course of the trial, the testimony is yet convincing that the jury had ample evidence upon which to base a verdict of guilty.
The character of the evidence is such that a due regard for decency justifies us in omitting a review in detail from this opinion. Suffice it to say that the evidence amply sustains the verdict rendered.
The appellant moved for a new trial, alleging as grounds therefor, among others, not heretofore discussed, that new evidence was discovered material to the defense, and because the witness “Len Taylor was caused to leave the jurisdiction
The affidavit of Annie Durham was presented. She details a statement which she swears was made to her by the prosecutrix at a restaurant, relative to the prosecution of the case, as follows:
“Anna, I was warned I had to do it, because Mr. Jordan told me that it would be perjury if I did not tell the same story I told before the justice of the peace, and he said he would prosecute me even if he did hate to do it. So I had to do what he told me. I know it put Quayle in bad, but I can’t help it, because I don’t want to get into any more trouble myself.”
This witness testified in the case, referred in a general way to the same matter, stated that she had told the accused and his. counsel about the conversation had with the prosecutrix, and certainly, in the circumstances, the statement detailed in the affidavit was made known, and is not evidence newly discovered within the rule authorizing a new trial, nor does it tend to show the former statements made of the matter were untrue.
The showing made by the affidavits produced is not sufficient to justify a court in vacating a verdict and granting a new trial, for the reason Annie Durham testified fully at the trial; Len Taylor evaded the process of the court to avoid testifying in behalf of the accused, and does not state in his affidavit that he will not do the same thing again; and Mullins is presumed to be in California and does not offer to testify. If they should all appear and testify to the matters they state are within their knowledge, the evidence given would b.e cumulative, contradictory, or impeaching in character, and it is not at all certain or probable that a different result would follow.
The appellant contends that the venue was not proven. This contention is without merit. The appellant in his statement and testimony is very careful to show that the place where the only transaction between the accused and prose
The instructions complained of wrought no prejudice to the appellant’s rights.
Upon the whole case, no reversible error in the pleadings or proceedings has been committed, and the accused has been awarded a fair and impartial trial. Consequently, I am of the opinion the judgment must be affirmed.
Affirmed.
FRANKLIN, C. J., and ROSS, J., concur.
For authorities discussing the question of cumulative evidence as grounds for new trial in criminal cases, see note in 46 L. R. A. (N. S.) 903.