Guldin v. State
Decision Date | 14 July 1945 |
Docket Number | Criminal 957 |
Parties | JOEL GULDIN, Appellant, v. THE STATE OF ARIZONA, Appellee |
Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge.
Judgment affirmed.
Mr Geo. F. Senner, and Mr. Sam Lazovich, for Appellant.
Mr John L. Sullivan, Attorney General, Mr. Earl Anderson Assistant Attorney General, Mr. Frank E. Tippett, County Attorney, Mr. D. E. Rienhardt, Deputy County Attorney, for Appellee.
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 P. 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:
The child in question in that respect testified as follows:
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:
The case of State v. Pollock, 57 Ariz. 415, 114 P.2d 249, 250, states that in statutory rape prosecution may be had upon the uncorroborated testimony of the prosecutrix. We quote:
The case of People v. King, 56 Cal.App. 484, 205 P. 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:
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. R. 1118:
"The uncorroborated testimony of an infant prosecutrix is sufficient to justify a conviction for rape. . . ."
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:
In our case of Zumwalt v. State, 16 Ariz. 82, 141 P. 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:
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