Fuller v. State

• Decision Date: 24 March 1922
• Docket Number: Criminal 531
• Parties: ROBERT FULLER, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

205 P. 324

23 Ariz. 489

ROBERT FULLER, Appellant, v. STATE, Respondent

Criminal No. 531

Supreme Court of Arizona

March 24, 1922

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment reversed, with instructions to grant new trial.

Messrs O'Sullivan & Morgan, for Appellant.

Mr John L. Sullivan, County Attorney, Mr. W. J. Galbraith Attorney General, and Mr. George R. Hill and Mr. F. W Perkins, Assistant Attorneys General, for the State.

OPINION

FLANIGAN, J.

This is an appeal from a judgment convicting appellant of the crime of rape upon the person of Nedze Chatman, a Negro girl aged thirteen years. According to the testimony of the appellant, who is a Negro, he was a soldier in the United States Army during the World War and served overseas. Upon his return to this country he was sent to the government hospital at Fort Whipple, near Prescott, Arizona, for medical attention and treatment. He stayed there from July 3, 1919, until December 31, 1919, when he was discharged. In February, 1920, he was readmitted to the hospital, continuing to stay there as a patient until April 30, 1920, at which time he says he moved to the house of Mary Anderson, the mother of said Nedze Chatman, in Prescott. According to the testimony of the girl, it would appear that appellant came to room at her mother's home as early as February, 1920, and the evidence on that point, if not conflicting, is at least equivocal. The prosecutrix further testified that beginning in February, and at various times up to and including June 29, 1920, the appellant caused her to submit to acts of sexual intercourse with him, the last occasion being on the night of June 29, 1920, during her mother's absence from the house. She made no complaint at that time of this mistreatment, stating that defendant had told her not to say anything about it to her mother. The prosecutrix was sent by her mother, Mrs. Anderson, to her aunt, Mrs. Thomas, in California, on October 2, 1920, and a child was born to her there on April 7, 1921 -- nine months and nine days after June 29, 1920, the date of the last intercourse. She testified further that during her stay in California she wrote to her mother about Fuller's conduct, and also told her aunt about it, after the latter had had her examined. The exact times these disclosures were made are not shown.

The prosecutrix returned to Prescott on June 25, 1921, with a child. According to the testimony of the mother, who testified as a witness for the appellant, on the day of the girl's return the girl stated to the mother that one Lennox or Leonard was the father of the child. She did not mention Fuller's name in any way in connection with his having mistreated her, and never mentioned his name in that conversation at all.

The strongest corroboration by a witness of the likelihood of acts of sexual intercourse between the appellant and the prosecutrix is contained in the testimony of Lucille Denson, who lived in a building adjoining the house occupied by Mrs. Anderson and the prosecutrix, who stated that "some time during the summer" of 1920 she overheard the prosecutrix talking, as she supposed, with Fuller, asking him to let her alone, saying, "Mr. Fuller, you go away from here and let me alone," and asking him to behave himself and get out of there and let her alone, repeating such expressions a number of times. She did not hear Fuller's voice, nor could she swear that he was present in the room; she did not see him go in or come out of the room. Eight or ten minutes afterwards she went to her front door and looked out, and Fuller was sitting on the front porch of the Anderson home.

At the trial, and while giving her testimony, the prosecutrix had the child with her, and several times referred to it as the result of her intercourse with Fuller.

In the cross-examination of the prosecutrix, the following questions were asked, to each of which objection was made by the county attorney and the objection sustained by the court:

Did your aunt in California urge you to come here and make complaint?

How did you come to go to the prosecuting attorney?

Was there any influence brought to bear upon you to have Fuller arrested?

Did your aunt over in California tell you to go to the county attorney? The purpose of these questions was undoubtedly to elicit testimony to disprove the natural inference that the prosecution was initiated by Nedze Chatman solely because of the wrongful acts of the accused, to which she had testified. If the appellant could show that the charge against him was the result of influence exerted upon the prosecutrix by her aunt, or other persons, or that she had been prevailed upon to any extent by others to make the complaint against him, it can readily be seen that such disclosures might prove of aid to him in establishing his defense. He might thus have cast doubt upon the truth of the matters the prosecutrix had alleged, or have disproved them altogether by referring the prosecution to other motives consistent with his innocence and inconsistent with his guilt. The questions asked, and if favorable answers thereto had been obtained, others to follow, developing further facts, must therefore be considered as an effort to shake or destroy the credit to be given the story of the prosecutrix. The party against whom a witness is produced has a right to show everything which may in the slightest degree affect his credibility (State v. Collins, 33 Kan. 77, 5 P. 368; State v. Stukes, 73 S.C. 386, 53 S.E. 643), and in a criminal prosecution to inquire upon cross-examination what influence was used upon the witnesses for the state (United States v. Dowden, Fed. Cas. No. 14,990a), and where the charge made is of rape, and the state's case depends almost entirely on the testimony of the prosecutrix, ample latitude and cross-examination should be allowed.

As is said in People v. Baldwin, 117 Cal. 244, 49 P. 186:

"In this class of prosecutions [for rape] the defendant, owing to natural instincts and laudable sentiments on the part of the jury, and the usual circumstances of isolation of the parties involved at the commission of the offense, is, as a rule, so disproportionately at the mercy of the prosecutrix' evidence that he should be given the full measure of every legal right . . . to maintain his innocence."

And see generally the following cases: Rogers v People, 34 Mich. 345; State v. Hazlett, 14 N.D. 490, 105 N.W. 617; Hardtke v. State, 67 Wis. 552, 30 N.W. 723; Fussell v. State, 93 Ga. 450, 21 S.E. 97; Taggart v. Bosch, 5 Cal. Unrep. 690, 48 P. 1092; People v. Blackwell, 27 Cal. 65; Harper v. Lamping, 33 Cal. 641; Curby v. Territory, 4 Ariz. 371, 42 P. 953. We think it was error to disallow these questions. The more debatable question is, Do the rulings constitute such substantial error to the prejudice of appellant as to require a reversal of the judgment? The record does not show what answers would have been made had the questions been allowed. It is quite probable that appellant himself did not know what such testimony would be. This we take to be true because no other effort was made by the...