Hash v. State
| Decision Date | 29 June 1936 |
| Docket Number | Criminal 834 |
| Citation | 59 P.2d 305,48 Ariz. 43 |
| Parties | V. L. HASH, Appellant, v. STATE OF ARIZONA, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. W. Faulkner, Judge. Judgment reversed and cause remanded, with directions.
Messrs Cox & Moore, Mr. L. C. McNabb, Mr. C. H. Young, Mr. Frank W Beer and Mr. O. V. Willson, for Appellant.
Mr John L. Sullivan, Attorney General, and Mr. W. Francis Wilson, Assistant Attorney General, for the State.
The defendant, V. L. Hash, was convicted of raping Nora Edgar, a sixteen year old girl not his wife, which under the statute is a crime regardless of the girl's consent. In other words, under the law she was incapable of consenting. Section 4596, Rev. Code 1928. The information fixed the 5th day of May, 1935, as the time the act was committed.
The defendant's defenses were (1) a denial of the act and that he was not present at the time and place alleged or relied upon by the prosecution; and (2) that the charge against him was a "frame-up" by the prosecuting witness and others to extort money from him.
The prosecution's evidence showed the defendant was guilty of six acts, the exact date of none being given but the first occurring in September, 1934, and the other five at more or less irregular intervals, the last being the one relied upon and occurring, according to the evidence, on a Saturday near the middle of the month of May, 1935; that is, on Saturday the 11th or Saturday the 18th of May, 1935. The state elected to rely upon the last act and fixed its date as on or about May 15, 1935.
Defendant has appealed from the judgment of conviction, and as reasons for his appeal he names and urges sixteen errors in his trial.
His first reason is the court's denial of his motion for a continuance. It appears that there were pending in the superior court of Maricopa county the present case, No. 13022, and case No. 13021 against defendant, both being for statutory rape, the complaining witness in each case being different. Some time before September 19, 1935, case No. 13021 had resulted in a mistrial. In July, 1935, both cases were set down for trial on September 19th, it being understood by defendant and the county attorney that case No. 13021 would be tried first. On the 19th of September the county attorney announceed ready for trial in case No. 13022, whereupon defendant expressed surprise, insisting that he was ready to proceed in 13021, but was not ready and could not at once proceed with 13022, and requested that he be allowed three days to prepare his case and get his witnesses.
The statute, section 5030, Revised Code of 1928, provides:
"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."
In Sam v. State, 33 Ariz. 383, 265 P. 609, we declared that a person charged with crime was entitled to time in which to prepare for trial and that a denial of such right would be error. The defendant, however, had plenty of time to prepare his case -- some sixty days. His excuse for not having time to do so is hardly valid; it is that he expected to be busy for the next three days in the trial of 13021. If he had not theretofore prepared to try 13022, how was it possible for him to do so while engaged in the trial of 13021? It probably is true, as he states, that he was taken by surprise when the cases were switched, but not to his prejudice. The matter of granting his request for three days to prepare the case was addressed to the sound discretion of the trial judge, and, it not appearing that such discretion was abused, no error was committed. Quayle v. State, 19 Ariz. 91, 165 P. 331; Shaffer v. Territory, 14 Ariz. 329, 127 P. 746; Territory v. Barth, 2 Ariz. 319, 15 P. 673.
The second reason is that the court in an instruction directed the jury to eliminate threats of the prosecuting witness and others towards the defendant in arriving at its verdict. The instruction reads:
There was evidence on behalf of defendant showing, or tending to show, that the prosecuting witness and one Ethel Pruitt had demanded of defendant $200 with which to attend the Fair at San Diego, with the threat that if he refused them that sum they would disclose his conduct with the complaining witness and have him punished. The contention of the defendant, that the instruction took away from the jury the right to consider these threats and the motive back of them, is not correct. The instruction is awkwardly and poorly constructed, but it is essentially correct. If defendant committed the act charged, the complaining witness being under eighteen years of age, he was guilty. The fact that the girl subsequently threatened to tell on him if he did not give her money, or that she conspired with another to use his act with her to extort money from him, would make his act none the less criminal.
The third reason is the refusal of the court to give the following instruction, requested by defendant, or any other instruction covering the same point:
Defendant says the purpose of this instruction was to advise the jury of the reason other acts than the one relied upon were allowed in evidence. As we understand the rule, it is that other acts between the defendant and the prosecuting witness are admissible for the purpose of showing, or tending to show, the lustful or lascivious disposition of the defendant, and as having a tendency to render it more probable that the act relied upon at the trial was committed as claimed. Power v. State, 43 Ariz. 329, 30 P.2d 1059; Deffenbaugh v. State, 32 Ariz. 212, 257 P. 27; State v. Hadley, 65 Utah 109, 234 P. 940. The phrase "the tendency, if any, of the defendant" does not explain the reason for allowing proof of other acts. It is, to say the least, a very vague and indefinite phrase. We think the instruction was properly refused because not stating the rule correctly. The last part of the instruction was fully covered by the court's instruction, wherein is used this language:
"If there is in your mind a reasonable doubt that the defendant committed the act testified to by the prosecutrix on or about the middle of the month of May, 1935, you are instructed to find him not guilty, no matter whether you believe the testimony of the prosecuting witness as to the prior acts (to) which she has testified."
In Strickland v. State, 37 Ariz. 368, 294 P. 617, 620, we said:
If defendant wanted a correct instruction on this point, he should have submitted one to the court.
His fourth reason is the giving of the following instruction:
"You are instructed, gentlement of the jury, that it is not necessary for the state to prove that the crime charged and for which this defendant is now on trial, was committed upon the exact date specified in the information, that is May 5th, 1935, for the exact date alleged in the information is immaterial."
It is claimed this instruction, in effect, nullified defendant's defense of alibi.
As above stated, the prosecution had elected to rely upon the act occurring on or about May 15, 1935. Having elected that date, the court was correct in stating that the exact date alleged in the information was immaterial. The law is well settled that, where the evidence shows, or tends to show that several acts of intercourse have occurred between defendant and prosecuting witness, it is incumbent upon the prosecution to elect which one of such acts it relies upon for a conviction. The elected act may or may not coincide with that alleged in the information. While the evidence must identify and isolate the act relied upon, we do not understand that it is any more necessary to prove the exact date such act occurred than it is to allege the precise time in the information. Section 4980, Revised Code of 1928, provides that the precise time an offense was committed need not be stated in an information or indictment, if it is alleged that it was committed prior to the filing of finding thereof, ...
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