State v. Romero

336 P.2d 366, 85 Ariz. 263, 1959 Ariz. LEXIS 206

• Court: Arizona Supreme Court
• Decided: March 4, 1959
• Docket: 1122
• Status: Published

Opinions

PHELPS, Chief Justice.

Jesse Cruz Romero, the appellant, was convicted of the crime of statutory rape alleged to have been committed upon his wife’s sister, a girl sixteen years of age.

During the trial the witnesses were placed under the rule excluding them from the courtroom. George W. Martin, Justice of the Peace, was called as a witness for the State. At that time the following colloquy took place between defense counsel and the court,

Defense counsel: “At this time, your honor, I wish to move the court to not allow Judge Martin to testify for the reason that he was in the courtroom all this morning, I understand, or part of the morning, in violation of the rule. The witness should be excluded. I know he wasn’t present yesterday. Counsel for the State should have cautioned or advised that the witness for the State should not be present in the courtroom.

The Court: “Well, that is a matter of discretion of the court. I don’t believe a man of Judge Martin’s standing would be influenced.

Defense counsel: “I don’t think he did it intentionally, your honor. I think the rule should be upheld.

The Court: “The objection is overuled. He may testify.”

Appellant contends that the court abused its discretion and thereby deprived the appellant of a fair trial by overruling the objection to George W. Martin, Justice of the Peace, testifying as a witness for the State after all witnesses had been placed under the rule excluding them from the courtroom.

The law is well-settled that the rule excluding witnesses from the courtroom is solely a matter within the sound discretion of the trial court and unless there is a showing of an abuse of discretion and a resulting prejudice this court will not disturb the rulings of the trial court. Macias v. State, 36 Ariz. 140, 283 P. 711; Riley v. State, 50 Ariz. 442, 73 P.2d 96; State v. Thomas, 78 Ariz. 52, 275 P.2d 408. In the present case there was no showing that there was a prejudicial result from the witness remaining in the courtroom and we hold that the trial court did not abuse its discretion in allowing the witness to testify.

Appellant further contends that he was deprived of a fair trial due to the trial judge commenting, “Well, that is a matter of discretion of the court. I don’t believe a man of Judge Martin’s standing would be influenced.” and that the remark of the trial judge indicated his opinion as to the credibility of Judge Martin in violation of Article 6, section 12 of the Constitution of the State of Arizona, A.R.S.

We concede that the above-mentioned statement was error on the part of the trial judge and that it should not have been made. Appellant made no objection to the statement during the trial. Neither did he list it as error in his motion for new trial. In State v. Hoffman, 78 Ariz. 319, 325, 279 P.2d 898, 901, we said, “ * * * The purpose of an objection is to permit the trial court to rectify possible error, [Citing case], and to enable the opposition to obviate the objection if possible. * * *” Here the appellant by not objecting at the appropriate time during trial waived his right to assign error to the statement made by the trial judge. If the question is not raised below it cannot be raised on appeal. Pioneer Constructors v. Symes, 77 Ariz. 107, 267 P.2d 740, 41 A.L.R.2d 668.

Appellant, in his third assignment of error, states that the court erred in refusing to give his requested instruction No. 4 to the jury. This proposed instruction would have told the jury that the crime of “contributing to the delinquency of a minor” was an included offense in the rape charge.

This presents a question of first impression in this court and we believe its incorporation as an included offense has been comparatively rare in this jurisdiction. The writer of this opinion was never presented with such a request in 26 years service on the trial bench. The question specifically presented here is, was it error for the trial court to refuse to instruct the jury, under the evidence in this case, that it could find the defendant guilty of contributing to the delinquency of the minor, if the evidence disclosed that the acts of the defendant tended to debase or injure the morals, health or welfare of said minor? Counsel for appellant cites State v. McLain, 74 Ariz. 132, 245 P.2d 278, in support of his contention. We find nothing in that case, nor in McDaniels v. State, 62 Ariz. 339, 158 P.2d 151 cited therein, that tends to support appellant’s position.

The information charges that defendant (appellant) did then and there wilfully, unlawfully and feloniously rape Mary Sano, a female, under the age of eighteen et cetera. The prosecutrix testified that defendant had sexual intercourse with her in Cochise County. Appellant denied the act of sexual intercourse with her but testified that he rented a motel room for her near Douglas for one night and that she then went to his home and remained there until the officers came two or three days later, that his wife was not at home at the time; that he slept in the same bed with her in a Mesa motel and also in a Tucson motel two or three days earlier.

Our attention has been called to the case of People v. Greer, 30 Cal.2d 589, 184 P.2d 512, which, from a cursory reading would appear to support appellant’s claim, but a careful study of the case clearly distinguishes it from the instant case. It involves the question of double jeopardy under the facts in that case and is not authority at all that the trial judge was required to submit to the jury an instruction and verdict on contributing to the delinquency of a minor in the instant case, because contributing to the delinquency of a minor is simply not necessarily an included offense in the crime charged in the information. That is to say, contributing to the delinquency of a minor is not necessarily an included offense in a charge of rape. Gouchenour v. State, 202 Ind. 231, 173 N.E. 191.

We agree that the acts charged in the commission of rape may and in lewd and lascivious conduct would contribute to the delinquency of a minor, hut that does not necessarily mean that the trial court must always include an instruction on contributing to the delinquency of a minor in a rape case.

In the instant case the prosecutrix testified that the appellant had sexual intercourse with her. Appellant positively denied it. Therefore he either did or he did not rape her. If he did, to submit an instruction and verdict on contributing to the delinquency of a minor would he utterly ridiculous. If he did not rape her the things he testified he did do are not an element in the crime of rape as charged. They constitute a different substantive offense as stated in Gouchenour v. State, supra. Therefore the trial court properly refused appellant’s instruction No. 4.

We are not unmindful of the California rule as stated in People v. Cheater, 138 Cal.App.2d 829, 292 P.2d 573, to the effect that contributing to the delinquency of a minor is necessarily included in a rape charge. We reject this rule. As above stated a male in committing rape may commit acts which also constitute the offense of contributing to the delinquency of a minor but they do not always and necessarily do so. Where they do the charge should be separately made.

Other assignments of error'we deem to be without merit and will therefore not be discussed.

Judgment affirmed.

STRUCKMEYER and UDALL, JJ„ concur.