Guldin v. State of Arizona

161 P.2d 121, 63 Ariz. 223, 1945 Ariz. LEXIS 127

• Court: Arizona Supreme Court
• Decided: July 14, 1945
• Docket: Criminal No. 957.
• Status: Published

Opinions

STANFORD, C. J.

This is a case of statutory rape alleged to have been committed by the stepfather on his stepdaughter who was eight years of age, the offense claimed to have been committed at the home of the parents in Globe, Arizona, on the 28th day of August, 1944. The jury brought in a verdict of guilty at the trial in the superior court, and from the judgment rendered thereon, this appeal is taken.

"We will hereafter style the appellant as the defendant and the State of Arizona as the state.

The defendant submits four assignments of error committed by the trial court, the first one being that the verdict is not justified, and is contrary to the evidence produced by the state at the trial. The defendant contends that when a conviction is based on the uncorroborated testimony of the prosecutrix, her evidence must be such as to show reasonable physical possibility that the alleged crime could have been committed. Supporting that he cites Reidhead v. State, 31 Ariz. 70, 250 Pac. 366. That is a case of where the prosecutrix was of age and resisted the commission of the offense. Defendant quotes from said case:

“And when a verdict of guilty is returned on the evidence of the prosecutrix alone, her story must be reasonable, consistent, and not inherently impossible or improbable to a degree that it would make it incredible to the ordinary man.”

Defendant sets forth that it would be impossible for the offense to have been committed under the testimony given by the prosecutrix inasmuch as she stated that she was sitting on the lavatory, meaning the toilet seat, and that he was in a standing position when he committed the alleged offense, showing a physical impossibility that the offense could have been committed, since the lavatory seat was only eighteen inches from the bottom of the floor and the defendant was six feet tall.

Witness John Lundgren, for the defendant, testified on cross-examination:

“Q. What kind of a tank is that toilet furnished with, is it up on the wall — does the water come in from the top? A. From the top.

“Q. Is it a low down tank or one on the wall? A. On the wall.

“Q. Immediately behind the water bowl? A. Yes sir.

“Q. Did you measure the height of the top of that tank? A. No, I didn’t.

“Q. How high up is that off the floor, approximately? A. Oh, I judge around, I don’t know, probably three feet, I don’t know.

“Q. Coming just about to your belt line? A. Probably would, yes.”

The child in question in that respect testified as follows:

“Q. Now, your daddy had you in the lavatory? A. Yes.

“Q. What did he do? A. He put his person into me.

“Q. He did? A. Yes, man.

“Q. Where were you? A. He had me sit up on the top of the lavatory.

“Q. Was he standing up at that time? A. Yes, man, he was standing up.

“Q. Were you sitting down or standing up? A. Sitting down.

“Q. You know your daddy was standing up? A. Yes man.

“Q. You are not mistaken in that? A. No, man. “Q. He took his person out? A. Yes, man.

“Q. What did he do in regard to your clothing at that time?

“The Court: Did he take off your clothing at that time? A. Yes, man.

“Mr. Senner: Did he take them all off? A. No, man.

“Q. What did he take off? A. Just my underwear.

“Q. Just your underwear? A. Yes, man.

“Q. You mean your panties or all your underwear? A. Just my panties.

“Q. Then your mother was there? A. Yes, man. “Q. Did you holler, call your mother, I mean? A. Yes, man.

“Q. What did your mother say? A. She tried to get in hut she couldn’t, and she told my grandmother — I mean told my sister, to go and tell my grandmother.

“Q. Your sister went for her? A. Yes, man.

“Q. Did your grandmother come there? A. Yes, man.

£<Q. Then what happened? A. My mother was telling him, she hollered at him and said my grandmother was coming and he went in there and started beating her around, went in the other room and started beating her around.

“Q. Your mother or grandmother? A. My mother.

“Q. What did he do to your mother? A. He just beat her is all.

“Q. Did he hit her or just slap her? A. No, he beat her with his fists.

“Q. Was that the time he knocked her out? A. No, man.

“Q. When was that? A. It was the first time, before we came there.

“Q. The Sunday before? A. Yes, man.”

Frank E. Tippett, county attorney of Gila County, testified as follows relative to the statements made by Mary Elizabeth Guldin, the mother of the defendant herein:

“Q. You know the witness, Mary E. Guldin, who testified on the witness stand here this morning, the lady who sits here? A. I do.

“Q. Did you see her that evening? A. I did.

“Q. Did you, together with Mr. Shute, have a conversation with her? A. I did.

“Q. Were you present at the time the Justice of the Peace had sent the officers to bring her down? A. I wasn’t.

“Q. You heard her here this morning on the stand? A. I did.

“Q. And her qualifications of the conversation that took place there? A. I did.

“Q. Did she make any such qualifications of the conversation? A. There were no qualifications made.

“Q. At no time did she say ‘if’? A. No.

“Q. ‘If he were guilty’ or ‘if he were in Virginia’? A. She did not.

“Q. Did you ever hear such statements made by her? A. No.

“Q. Will you please repeat the conversation? As near as you can, between you and Mr. Shute and Mrs. Guldin? A. When I arrived at the office Mr. Shute and Mrs. Guldin were there. He had told me over the phone about the type of case it was, so I ascertained the relationship of Mrs. Guldin and the accused, Guldin, and questioned her about what she knew about the case. She said he was her son, Joel Guldin, and she says, ‘He is the one, even though he is my son. I made an examination myself of the little girl. She is now in the doctor’s office being examined, but I already made an examination and from my examination and my conversation with her, there is no doubt in my mind but what my son committed the act.’ . . . .”

The case of State v. Pollock, 57 Ariz. 415, 114 Pac. (2d) 249, 250, states that in statutory rape prosecution may be had upon the uncorroborated testimony of the prosecutrix. We quote:

“The first question is as to the sufficiency of the evidence to sustain the verdict. The prosecutrix testified directly and positively to the completed crime. Defendant denied that he had either attempted or completed the offense charged. If this were all, the question would undoubtedly be one for the jury, for in Arizona in a case of this kind a conviction may be had upon the uncorroborated testimony of the prosecutrix unless her story is physically impossible, or so incredible that no reasonable man could believe it. Reidhead v. State, 31 Ariz. 70, 250 Pac. 366; Zavala v. State, 39 Ariz. 123, 4 Pac. (2d) 390.”

The case of People v. King, 56 Cal. App. 484, 205 Pac. 703, 704, is where the offense was committed against the stepdaughter of accused, and where the girl was fifteen years of age. The court in that case said:

“The further points urged, that the girl’s story is improbable and that it required corroboration, are without merit. . . .

“It was not necessary for the story of the prosecutrix to be corroborated. ...”

Again in reference to the uncorroborated testimony of the prosecutrix under the age of consent, we quote from annotations following the case of Noonan v. State, 117 Neb. 520, 221 N.W. 434, 60 A.L.E. 1118:

“The uncorroborated testimony of an infant prosecutrix is sufficient to justify a conviction for rape. J )

Defendant’s second assignment of error is:

“That the substantial rights of the defendant were prejudiced by the misconduct of the County Attorney in commenting on the failure of defendant’s wife to testify. ’ ’

This assignment is based on Section 44-2702, Arizona Code Annotated 1939, which reads, in part, as follows:

“1. A husband can not be examined for or against his wife, without her consent, nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply in a criminal action or proceeding for a crime committed by the husband against the wife, or by the wife against the husband nor in a criminal action or proceeding against the husband for the abandonment, failure to support or provide for, or failure or neglect to furnish the necessities of life to the wife or the minor children, and either may, at his or her own request, but not otherwise, be examined as a witness for or against the other in a prosecution for bigamy or adultery, committed by either husband or wife, or for rape, seduction, or the crime against nature, or any similar offense, committed by the husband.”

In our case of Zumwalt v. State, 16 Ariz. 82, 141 Pac. 710, 712, a case of this nature where the prosecuting witness was under the age of consent, this court did not say what a county attorney could or could not say about the wife not taking the witness stand, the language of the county attorney not being in the record. On that subject we merely said:

“ . . . He not having the right to call her as a witness, that being entirely at her option, it would seem that the county attorney ought not to make adverse comment on her refusal to testify, for it is within her power to refuse, however anxious he might be to use her as a witness. The defendant has failed to preserve in the record what was said by the county attorney, and we have no means of determining whether his comment was prejudicial to defendant’s rights or not.”

In this case, not from the transcript of evidence, but from the motion for new trial, we find that the words of the county attorney complained of were:

“ ‘If the defense wanted to bring out a motive of the defendant’s wife in bringing this charge against the defendant, why did the defense not produce her here to prove the motive of the charge?’ ”

The above quotation would indicate, and counsel in their arguments admitted the fact, that counsel for defense had, prior to that time in argument before the jury, made a statement to the effect that the wife signed the complaint against defendant because she was jealous.

We hold that the comment of the county attorney in the instant case was not reversible error.

Defendant’s third assignment of error is that the county attorney made the following prejudicial remark in his argument before the jury: ‘ ‘ This defend-is a sex-mad maniac.”

In the case of Hash v. State, 48 Ariz. 43, 59 Pac. (2d) 305, 309, the county attorney, in his argument, made the following statement:

“ . . . He is worse than a thief in the night and should be treated accordingly. ...”

Our court said in respect to that language:

“The evidence supported this statement so far as it attempted to recite the facts. It is seen that the phrase criticized is the deduction of the speaker from the facts as related, wherein he likens one who steals or takes a young girl’s virtue unto one who steals property at night. He was using a mere figure of speech to stress and emphasize the enormity of the offense as he viewed it. He was only calling to the attention of the jury in a rather rugged manner what every right-thinking person believes. The characterization of defendant’s acts, as that ‘he is worse than a thief in the night and should he treated accordingly,’ we think was justified and permissible and the court did not err in refusing to strike the remarks on defendant’s motion. ...”

As set forth in the case of Taylor v. State of Arizona, 55 Ariz. 29, 97 Pac. (2d) 927, 932, this court has said that words similar to the ones above quoted were not improper under the evidence:

“It is contended further that the county attorney was guilty of gross misconduct in his closing argument in this: he approached appellant sitting at the table and threatened as if to administer to him corporal punishment and applied to him at different stages of the address language wholly uncalled for by the evidence and extremely prejudicial. He referred to him as a ‘sex crazed man’ and to his act as that ‘of a warped mind, a sex crazed mind.’ A reading of the entire argument discloses that the county attorney did make a rather impassioned appeal for the conviction of appellant, hut neither in the language quoted nor the remainder of the address did he go further in this respect than the State’s evidence warranted. If true, and the jury believed it, the language applied to appellant was a perfectly normal inference to he drawn from it.”

We believe that the evidence in the instant case supports the statement of the county attorney that the defendant was a “sex maniac” because the testimony shows that on various occasions he did commit the same offense with this child. We see no reversible error in that argument to the jury.

The last matter complained of is that during argument the county attorney interrupted one of the attorneys for the defense, complaining that he was not keeping within the facts in the record. The court thereupon admonished the defense attorney to stay within the record. Whether he was, or was not, within the record, we feel that no harm could be done before the jury by such an admonition unless it be shown that the court gave the instruction in a manner unbecoming to the dignity of a judge of the trial court.

This case was tried to a jury of citizens of Gila County. A verdict of guilty was returned against the defendant. Thereafter the trial court, the Honorable C. C. Paires, one of the leading and most experienced trial judges in our state, passed on the motion for new trial, which contained the same matters set forth in the assignments of error herein determined.

We find that the defendant had a fair and impartial trial and that his rights were well preserved by his counsel and that no prejudicial error was committed in the trial of the action.

The judgment is accordingly affirmed.

MORGAN, J., concurs.