State v. Bradley, 1008
| Decision Date | 16 April 1951 |
| Docket Number | No. 1008,1008 |
| Citation | 230 P.2d 216,72 Ariz. 16 |
| Parties | STATE v. BRADLEY. |
| Court | Arizona Supreme Court |
V. L. Hash and Virginia Hash, of Phoenix, for appellant.
Fred O. Wilson, Atty. Gen., Maurice Barth, Charles Rogers, Asst. Atty. Gen., for appellee.
Appellant, Thomas D. Bradley, hereafter called defendant, was charged by information with the crime of rape, a felony, alleged to have been accomplished by force and violence upon the person of (name omitted), hereafter called prosecutrix. He was tried before a jury which found him guilty. After denial of his motion for a new trial, judgment was entered and a sentence of five to seven years in the state penitentiary was imposed. This appeal followed.
There are some ten assignments of error that can be readily grouped as follows, viz.: (a) sufficiency of evidence to support the verdict, (b) error in court's instructions to the jury, (c) evidentiary matter, and (d) form of verdict used. These assignments will be treated in that order.
At the trial defendant, a 28 year old married man, took the stand in his own behalf and admitted the act of sexual intercourse. He claimed however, that it occurred with the consent of the prosecutrix. Since under an assignment of this nature each case must be decided upon its own facts, we do not think it necessary to detail the evidence. It would have no value as a precedent and would merely encumber the reports with a quantity of salacious matter. The prosecutrix, a 20 year old unmarried girl, who had met defendant for the first time that same evening, testified that the sexual act was accomplished against her utmost resistance.
Construing the evidence in the light most favorable to sustaining the verdict, the evidence adduced by the State discloses that the act occurred on the desert away from human habitation, hence it would have been useless for the prosecutrix to call for help. The prosecutrix testified that defendant who was partially intoxicated, after refusing to take her home when repeatedly requested to do so, twisted her arm and threatened to break it if she did not submit to him. While the two were struggling, defendant stated, 'I am going to have you tonight if I have to knock you out and beat you up to do it.' According to her testimony she 'was scared of him, afraid he would kill me.' She testified also that he forced her back into the car several times when she tried to escape and walk the 15 miles back home, and that finally she became 'practically exhausted', although she resisted his advances to the limit of her strength until finally overcome by sheer physical force. Other facts, later referred to, such as her promptly reporting the assault to her sister and then to the officers, as well as the medical testimony and admissions by defendant to the county attorney, corroborated her testimony. While there is somewhat of a conflict in the evidence, the jury as triers of fact, evidently believed her testimony, and it is our opinion that the evidence amply sustains their verdict.
Defendant assigns as error the action of the trial court in modifying a certain instruction pertaining to whether or not the act was against the will of the complaining witness. The defendant requested the court to instruct the jury that they must find 'she did everything she could to prevent the said act' or find the defendant not guilty. The court modified this instruction by adding the qualifying words 'under all the surrounding circumstances'. Defendant complains that the modification of the instruction 'authorized the jury to consider all the circumstances from the very beginning of the association as bearing upon the alleged assault * * * and tends to incriminate him, however innocent and inoffensive his conduct was at any time previous to the claimed assault.' The answer to this illogical reasoning is that as a matter of law, the jury were entitled to consider all of the circumstances occurring that night prior to the alleged assault.
Defendant also complains of the rejection of his cautionary instruction which warned the jury of the danger which is afforded in cases of rape for the free play of malice and private vengeance. Defendant's authority for the requested instruction was People v. Benson, 6 Cal. 221, 65 Am.Dec. 506. Certain dictum in the case, which applied to a totally different set of circumstances than that related in the instant case, was paraphrased and warped to fit the ends of defendant, and as thus changed was offered to the trial court as an instruction upon the law governing the instant case. Not only was the lower court correct in rejecting the proffered instruction, but it would have been error for the court to have given it. Furthermore, in the instant case there was no evidence introduced during the course of the entire trial upon which the court could have properly predicated an instruction pertaining to malice and private vengeance.
It is true that the defendant was entitled to have the court give a cautionary instruction, but this was done. The following is the excellent instruction, requested by defendant, which was given by the court:
Less than 12 hours after the alleged assault the defendant was arrested and brought to the court house where he was interrogated at length by the county attorney. A court reporter was present and took down the questions and answers. These stenographic notes were transcribed and at the trial, as a part of its case in chief, the State offered the transcript in evidence. This general offer was refused but the court did permit such questions and answers to be read to the jury as it determined were unobjectionable. Counsel now claims the court erred in overruling his objections to many of these extrajudicial statements. Certain of this evidence it is claimed, was incompetent and prejudicial in that it tended to degrade the...
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State ex rel. Pope v. Superior Court, In and For Mohave County
...or scientific evidence, such as the victims alleged loss of virginity, the origin of semen, disease or pregnancy. See State v. Bradley, 72 Ariz. 16, 230 P.2d 216 (1951); Commonwealth v. McKay, supra; Goodson v. State, 354 P.2d 472 The presentation of reputation evidence to demonstrate the u......
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State v. Reinhold
...the testimony of the prosecuting witness should be examined with particular care. This instruction was in accord with State v. Bradley, 72 Ariz. 16, 230 P.2d 216 (1951). The trial judge refused the instruction, but gave instructions concerning juror prejudice and sympathy, the credibility o......
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Com. v. McKay
...was a virgin at the time of the incident has been admitted in other States where the question of consent was in issue. See State v. Bradley, 72 Ariz. 16, 230 P.2d 216 (where the defendant did not even challenge the victim's testimony but did challenge expert medical testimony to the same ef......
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State v. Aveen
...is directly in issue. See, Myers v. State, 105 Tex.Cr.R. 426, 289 S.W. 49; Edmondson v. State (Fla.App.) 146 So.2d 395; State v. Bradley, 72 Ariz. 16, 230 P.2d 216. At least four jurisdictions have held such evidence, although otherwise relevant, is inadmissible unless in rebuttal of a dire......