Lenord v. State

• Citation: 15 Ariz. 137,137 P. 412
• Decision Date: 30 December 1913
• Docket Number: Criminal 347
• Parties: GEORGE L. LENORD, Appellant, v. STATE, Respondent
• Court: Supreme Court of Arizona

137 P. 412

15 Ariz. 137

GEORGE L. LENORD, Appellant, v. STATE, Respondent

Criminal No. 347

Supreme Court of Arizona

December 30, 1913

APPEAL from a judgment of the Superior Court of the County of Cochise. Fred Sutter, Judge. Affirmed.

The facts are stated in the opinion.

Messrs Doan & Doan and Mr. John Wilson Ross, for Appellant.

Mr. G P. Bullard, Attorney General, and Mr. Leslie C. Hardy Assistant Attorney General, for Appellee.

OPINION

CUNNINGHAM, J.

The appellant complains of errors committed on the trial in admitting evidence, in rejecting evidence, in instructions to the jury, in refusing a new trial because of the failure of the evidence to establish a material allegation of the information, and in refusing to issue a certificate of probable cause for appeal.

The appellant was charged in the information with having on or about the tenth day of November, 1911, committed the crime of rape upon one, Fannie L. Aronwald, a female under the age of 17 years, she not being the wife of him (the said George L. Lenord).

The prosecution offered a number of witnesses, who gave evidence tending to establish, among other things, the act of criminal intercourse and a state of pregnancy of the prosecutrix resulting therefrom, and the birth of the child on February 5, 1913. The prosecution then offered a written document in the form of a contract purporting to have been made between George L. Lenord, and the party of the first part, Brandla Aronwald, the mother, Wolf Aronwald, the father, and Aaron Aronwald, the brother of Fannie L. Aronwald, the parties of the second part, and Fannie L. Aronwald, the party of the third part. The document bears the date of November 22, 1912, and recites: "That whereas, the said Fannie L. Aronwald, now in Los Angeles, in the state of California, is in a state of pregnancy, and accuses the said party of the first part with being the father of her unborn child, and the said party of the first part admitting the fact that he is the father of such child, and all the parties hereto desiring to do what is best under the circumstances for the party of the third part, agree among themselves as follows: . . ." The document purports to be an agreement by which the appellant undertook to pay certain sums of money for the use and benefit of the prosecutrix, and for the care and education of the child. On its face is recited that the contract is to be kept secret, and that it is made as a compromise of any and all future civil actions that may arise between the parties thereto on account of the connections of the appellant with the prosecutrix. We deem it unnecessary to further set out the document. The paper at the foot bears the signatures of "G. L. Lenord" and "Fannie L. Aronwald."

The prosecution proved the signature upon the document and a copy thereof as that of the accused, and proved that he signed both the paper and the copy, and proved that they were duplicates, and offered them in evidence. Defendant objected for the reason that the offer was a confession, and was not shown to have been voluntarily made. The objection was sustained. Then the document was offered as an admission against interest, and admitted as such over the objection of defendant; to which ruling defendant reserved an exception. These are the grounds for the first assignment of error; but the allegation of error is in these words: "the court erred in admitting in evidence the agreement dated November 22, 1912, as it was proven to have been executed under duress, and was not a voluntary confession, and hence inadmissible." The record does not bear out this allegation that it was proven to have been executed under duress. At the time it was admitted in evidence, it was shown to have been executed by the defendant, and upon its face tended to corroborate the evidence of the ultimate fact sought to be established, that is, the act of sexual intercourse, as charged in the information. Woodruff v. State, 72 Neb. 815, 101 N.W. 1114.

That this evidence was introduced solely for the purpose of corroborating the prosecutrix as to the principal fact of her having had sexual intercourse with the defendant on November 10, 1911, was well understood, and it, as well as other acts of the same kind, which took place subsequently to the one specifically charged in the information, was admissible for that purpose. Leedem v. State, 81 Neb. 585, 590, 116 N.W. 496; People v. Mathews, 139 Cal. 527, 73 P. 416; Smith v. Commonwealth, 109 Ky. 685, 60 S.W. 531; State v. Robertson, 121 N.C. 551, 28 S.E. 59; Sykes v. State, 112 Tenn. 572, 105 Am. St. Rep. 972, 82 S.W. 185; State v. Borchert, 68 Kan. 360, 74 P. 1108.

After the evidence had been admitted, the appellant offered the circumstances under which the contract was made and signed. Such evidence was not offered in support of a motion to exclude the evidence, and cannot be considered to have that effect, in the absence of such motion, the evidence having been previously admitted. If the circumstances surrounding the execution of the document were such as would satisfy the trial court that the so-called contract was executed under duress, or from any cause it appeared that it was not the voluntary act of the appellant, and such evidence was submitted to the court, or an opportunity was asked to submit such evidence to the court before the document was admitted, or having admitted the document, if such evidence was offered to the court in support of a motion to exclude such evidence, the evidence of the circumstances would then bear upon the admissibility of the document as evidence, and would be addressed to the consideration of the court in admitting or in excluding the same as evidence. The record discloses that the circumstances were not so offered for the consideration of the court, but were offered as other evidence, for the consideration of the jury, and, as such, had a bearing not upon the admissibility of the document attacked thereby, but upon the weight the jury would give to such document as evidence. The evidence of the circumstances of the execution of the document was addressed to the weight and not to the admissibility of the evidence.

The appellant contends that error was committed by the court in sustaining the objection to a question, propounded to the prosecutrix on cross-examination, as to whether she had threatened to prosecute the defendant herein if he did not pay her the sum of $2,500, and offered that, if he did pay her that sum, she would not have him prosecuted.

The record discloses that counsel had the prosecutrix under cross-examination, and had developed the fact that, while she was in California, she wrote the accused, asking him to send her some money. He said he would send her money, but failed to do so. She was asked why she came back, which was met by an objection, and then she was asked: "Did you or did you not state to Lenord that, if he would not pay you $2,500, that you would come back here and have him prosecuted, and that if he would pay you that you would drop it, and it would be all right?" An objection was sustained to the question. Counsel stated, before the court ruled upon the objection, that the evidence was material to show motive of the entire case, and that he expected to follow it up with a little more just like it, and intimated that the statements were put in for impeaching purposes. This is the state of the record upon which the error complained of is assigned. Clearly the circumstances under which the question was asked compel the candid mind to conclude that the question called for an answer giving the contents of letters written by the prosecutrix to the accused. If so, the accused would be presumed to have the possession of those letters, or to be able to account for their absence, and they would be the best evidence of their contents. The question called for secondary evidence, and not the best evidence. This was a sufficient objection to the offer as made. In the absence of any evidence that the prosecutrix instituted the prosecution, her motive in the case was immaterial. She had admitted that she requested money, and it was in evidence that she did not receive the money. Appellant contends that because it was in evidence over his objection that the accused had made an agreement providing for the payment of $2,500, that it was eminently proper to ask this witness the question as to whether or not she had not offered to withhold the prosecution if money was paid her. It would be eminently proper to offer such testimony in connection with testimony that the prosecutrix instituted the action, and commenced the prosecution after a refusal; but the judgment-roll in this cause discloses that this action was commenced by one presumably in no manner connected with the prosecutrix or any member of her family, either as a blood relation, business relation, or otherwise, in fact, by one who at subsequent stages of the proceeding, appears conclusively to be interested in the case in opposition to the success of the prosecution. Such being the state of the record, any propositions to withhold a prosecution would appear to have no reference whatever to prosecutrix's motives in that respect. The answer would be immaterial, and the court committed no error in rejecting the offer.

The complaint is made that the court erred in instructing the jury to find the defendant guilty, without proof or evidence that the prosecuting witness was not the wife of the defendant. The appellant has not pointed out wherein the court gave any instruction to the jury to find the defendant guilty, without proof or evidence that prosecuting witness was not the wife of the defendant. In order to justify a conviction under the information, it was necessary for the...