State v. Byrd
| Decision Date | 30 October 1944 |
| Docket Number | Criminal 955 |
| Citation | 152 P.2d 669,62 Ariz. 24 |
| Parties | THE STATE OF ARIZONA, Appellee, v. ART BYRD, Appellant |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Gila. Gordon Farley, Judge.
Judgment reversed and case remanded with instructions.
Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General, Mr. Frank E. Tippett, County Attorney, and Mr. D. E. Rienhardt, Deputy County Attorney, for Appellee.
Messrs Lewkowitz & Wein, for Appellant.
Art Byrd was convicted in the superior court of Gila County of the crime of rape, committed on or about July 31, 1943, upon one Noree Livingston, a female not his wife, under the age of eighteen years, to-wit, of the age of sixteen. From a sentence to the state prison of not less than five nor more than six years he has appealed.
By his assignment of error number one he questions the sufficiency of the evidence to sustain the conviction. On this point the prosecutrix testified that appellant took her for a drive at night into an out-of-the-way place, stopped his automobile and committed the act. Appellant admits that he and the prosecutrix took the drive to the country and stayed out until about 11 P. M. She says 2 A. M. the following morning, but he testified he had no sexual intercourse with the prosecutrix at that time or any other time.
Dr. T. C. Harper testified that he examined Noree Livingston a few days before the trial and he He said the condition described could have been caused by natural sexual relations or masturbation.
We think, under the circumstances as related, the question of the veracity and truthfulness of these two witnesses was one for the jury. The evidence is quite certain that the prosecutrix had been violated, and the opportunity for the appellant to have done what he is charged with doing, and the circumstances of their staying out so late at night, and their subsequent action, was a matter for the consideration of the jury. State v. Pollock, 57 Ariz. 415, 114 P.2d 249.
Appellant seems to rely for comfort upon what we said in Reidhead v. State, 31 Ariz. 70, 250 P. 366. The information in that case charged the rape was committed by force and violence, and there was no pretense that the will of the prosecutrix was overcome by force or violence of any kind. We held that the conviction upon evidence that failed to show resistance to the utmost of the prosecutrix's ability, she being over eighteen years old, would not sustain a conviction. In that connection, we used the following cautionary language:
The rule announced in that case has no application to a case of this kind where the consent of the prosecutrix, on account of her age, would not relieve the appellant from the criminal offense, she being unable to give consent.
The evidence is uncontradicted that she had been to appellant's cabin on different occasions, had gone with him to Casa Grande once, to Whiteriver once, and to Nogales once. Thus appellant's associations with the prosecutrix were such as to afford many opportunities, and we cannot, in view of the facts and circumstances, sustain the contention of the appellant that the prosecutrix's story is unreasonable, inconsistent and inherently impossible or improbable.
After the appellant had put on his case, the prosecuting attorney called as a witness on rebuttal one Floy Hill who testified that the reputation of the appellant as being a peaceful, law-abiding citizen was bad. Then she was asked the following question: "You have had some personal dealings with him?" which was objected to by appellant's counsel, and the court said: Upon the question being repeated by the prosecuting attorney, she answered "Yes." This was objected to by appellant's counsel who asked the jury be instructed to disregard it. The court's ruling was in these words: "The jury is instructed to disregard the question put by Mr. Rienhardt to the witness."
The appellant assigns the court's ruling as prejudicial error. The object of the question, of course, is apparent to anybody. It was to show that appellant had committed, or attempted to commit, a crime against the witness who was testifying, and the jury's verdict doubtless was influenced by this testimony. This evidence was unquestionably prejudicial to appellant. It and all of it should have been rejected by the court.
In the case of Byers v. State (Okl. Sup.), 147 P.2d 185, 188, the court said:
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