Levy v. Territory of Arizona

• Decision Date: 06 May 1911
• Docket Number: Criminal 296
• Citation: 115 P. 415,13 Ariz. 425
• Parties: MICHAEL LEVY, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Arizona Supreme Court

115 P. 415

13 Ariz. 425

MICHAEL LEVY, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 296

Supreme Court of Arizona

May 6, 1911

APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for Graham County. E. W. Lewis, Judge. Affirmed.

The facts are stated in the opinion.

W. C McFarland, for Appellant.

John B Wright, Attorney General, for Respondent.

OPINION

CAMPBELL, J.

Appellant was convicted of statutory rape. The intercourse was with the consent of the female who was about sixteen years of age. The trial court declined, upon appellant's objection, to receive direct evidence of acts of intercourse occurring subsequent to that relied upon by the territory, which is alleged to have been on August 30, 1908, but admitted, over his objection, testimony showing the general conduct of the parties toward each other during the six months after August 1908, and the rulings of the court in admitting this testimony are assigned as error.

While the witnesses were not permitted directly to testify that other acts of intercourse were accomplished, the only inference to be drawn from the testimony is that the relations of the parties begun in August continued during the succeeding six months, and the question really presented is whether acts of sexual intercourse, consented to by the female, occurring subsequent to that relied upon by the prosecution, may be given in evidence. Upon this question the courts are divided. Nearly all admit evidence of such acts committed prior to the one relied upon. Texas seems to be nearly, if not quite, alone in holding that neither prior nor subsequent acts may be shown. In view of the thorough discussion of the subject by other courts and by text-writers, we do not undertake its discussion here, but simply choose the rule which appears to us to be supported by the sounder reasoning, and which, we think, is that subsequent acts, if not too remote, may be shown. This rule is supported by numerous authorities, among others: Woodruff v. State, 72 Neb. 815, 101 N.W. 114; Smothers v. State, 81 Neb. 426, 116 N.W. 152; State v. Sebastian, 81 Conn. 1, 69 A. 1054; State v. Stone, 74 Kan. 189, 85 P. 808; State v. Simmons, 52 Wash. 132, 100 P. 269; State v. King, 117 Iowa 484, 91 N.W. 768; State v. Fetterly, 33 Wash. 599, 74 P. 810; State v. Henderson (Idaho), 114 P. 30; Lamphere v. State, 114 Wis. 193, 89 N.W. 128; People v. Koller, 142 Cal. 624, 76 P. 501; and People v. Soto, 11 Cal.App. 431, 105 P. 420. See, also, Wigmore on Evidence, pars. 398-402, and notes to People v. Molineux, 62 L.R.A. 193, and Cecil v. Territory, 8 Am. & Eng. Ann. Cas. 457. In this case the evidence shows the relations of the parties to have been continuous during the six months, and the testimony was properly admitted as within the rule.

Appellant requested the court to instruct the jury that the fact that the girl made no complaint is a circumstance to be taken into consideration in determining the weight to be given her testimony, which instruction the court refused. The fact that the victim of an outrage makes complaint is admitted in evidence to corroborate her testimony that she did not consent, and if no complaint is made that fact may be considered in determining her credibility upon that point. Of course, the reason for the rule wholly fails in a case like the one before us, where no question of consent is involved. The instruction was properly refused. State v. Oswalt, 72 Kan. 84, 82 P. 586; Loose v. State, 120 Wis. 115, 97 N.W. 526; 33 Cyc. 1469.

In support of his motion for a new trial, appellant filed affidavits to the effect that during their deliberations the jurors were supplied with intoxicating liquors, and an affidavit of a juror named English, to the effect that he was induced to find the defendant guilty through fear of the criticism of the court, should a verdict of acquittal be returned; that the court had shortly before criticized and discharged a jury in another case for returning a verdict of acquittal, and that the court's action was discussed by the jurors in this case and their action influenced thereby. The affidavits presented merely state that during the evening, after the jury had retired to deliberate, several bottles resembling beer bottles were seen on a table in the jury-room. It is not stated that the jurors were in any wise intoxicated. Members of the jury, in affidavits, state that during the evening a few bottles of beer were consumed by them; that only a small quantity was taken by anyone, and that no one of the jury was even slightly affected by the liquor; that the jurors, shortly after consuming the liquor, retired for the night,...