J. Carroll Power v. State

• Decision Date: 02 April 1934
• Docket Number: Criminal 792
• Citation: 43 Ariz. 329,30 P.2d 1059
• Parties: J. CARROLL POWER, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

30 P.2d 1059

43 Ariz. 329

J. CARROLL POWER, Appellant, v. STATE, Respondent

Criminal No. 792

Supreme Court of Arizona

April 2, 1934

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed with directions.

Mr. Ray C. Bennett, for Appellant.

Mr Arthur T. La Prade, Attorney General, Mr. P. H. Brooks Assistant Attorney General, and Mr. Glenn Copple, County Attorney, for the State.

OPINION

LOCKWOOD, J. J.

Carroll Power was convicted of the crime of incest, and has brought the case before us for review.

There are several assignments of error, but only three questions for our consideration, which we shall take up in their order. The first is that the court erred in failing to dismiss the prosecution on the ground that the defendant was not tried within 60 days of the date of the indictment, as provided by section 5204, Revised Code of 1928, which reads as follows:

"§ 5204.

Dismissal for Want of Prosecution.

The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed where a person has been held to answer for a public offense, if an indictment or information is not found within thirty days; or if a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment or the filing of the information."

The record shows that the indictment was returned on the 13th day of October, 1932. On the 28th day of November defendant was brought into court for arraignment, and various dilatory motions were heard between that date and the 7th day of December, upon which day a plea of not guilty was entered, and the case was set for trial on December 12th, being the last day within the statutory period. On that date defendant and his attorney filed a motion for change of venue, supported by the number of signatures required by law, and the case was immediately removed to Maricopa county. On December 14th it was assigned for trial to division No. 3 of the superior court of that county, and on the same day appellant was brought into court and the time for arraignment set for December 22d. On the date last named appellant moved to dismiss the prosecution because he had not been tried within 60 days from the filing of the indictment. The motion was denied, and the case went to trial on January 12th.

Did the court err in failing to dismiss the prosecution because the defendant had not been brought to trial within the 60 days, as set forth in section 5204, supra? It appears from the record that the case would have gone to trial within the statutory time had not defendant himself moved for a change of venue to another county. The granting of this motion rendered it impossible to commence the trial within 60 days after the indictment was filed, but it was actually tried within 30 days from the time the motion for change of venue was granted. Where the reason for failure to try a defendant within the time prescribed by statute is caused by the action of the defendant himself, the statute does not apply. People v. Maniatis, 297 Ill. 72, 130 N.E. 323. And, when the delay is caused by the defendant's own motion for a change of venue, he is responsible therefor. State v. Cox, 65 Mo. 29; State v. Farrar, 206 Mo.App. 339, 227 S.W. 1078. We think the record shows good cause for the delay in trial, and the court did not err in refusing to dismiss the indictment upon that ground.

The second question is whether certain evidence was admissible. This requires a brief recital of the evidence in the case. The indictment charges the defendant with having committed the crime of incest on the -- day of March, A.D. 1932. The uncontradicted evidence shows that a child was born to Ina Power, the daughter of defendant, on the 23d of December, 1932, and that on the 12th day of January, 1933, the date of trial, she was past 20 years of age. This proves conclusively that about the month of March, 1932, and when she was between the ages of 19 and 20, she had sexual intercourse with some man. The evidence also shows that for some 2 or 3 years prior to the birth of the child she had resided with her father and six brothers, the latter ranging in age from 8 to 22, in a three-room house in the Yuma Valley. One of the rooms was occupied by the six boys as a bedroom, another was used as kitchen, living-room and dining-room, and the third was occupied by defendant and his daughter as a bedroom, the former sleeping on a mattress on the floor, which was removed during the daytime, and the latter occupying a bed in the corner of the room. It is also undisputed that during all this period of time Ina Power was in the habit of keeping company with several different young men, going out with them alone at night, in the usual manner of young men and women. If this were all the evidence in the case, it would be utterly insufficient to sustain a conviction, for all it proves is that defendant, in common with an indefinite number of other men, had the opportunity to indulge in sexual relations with Ina Power. If proof of opportunity to commit a crime were alone sufficient to sustain a conviction, no man would be safe. Indeed, the state apparently assumed the attitude that this would not be sufficient, and therefore endeavored to prove a similar previous offense, occurring approximately 2 years before the date of the one charged. It therefore offered testimony that Ina Power had, in the spring of the year 1931, given birth to another child, and that at some time in May, 1930, a neighbor had seen her father in the same bed with her.

It is the general rule that, in prosecutions for illicit intercourse of any class, evidence is admissible of sexual acts between the same parties, prior to the date of the specific act charged, notwithstanding that such evidence may tend to prove the commission of a separate and independent crime. The rule, and the reason therefor, is discussed thoroughly in the case of People v. Jenness, 5 Mich. 305. Therein the court said:

"In the case ofan indictment against the man for such intercourse, . . . previous familiarities, and the general or habitual submission of the female to his sexual embraces must in the nature of things, tend to render it much more probable that the like intercourse took place on the occasion charged -- the opportunity being shown. And such is the force and ungovernable nature of this passion, and so likely is its indulgence to be continued between the same parties, when once yielded to, that the constitution of the human mind must be entirely changed before any man's judgment can resist...