State v. Deen

• Court: Arizona Supreme Court
• Writing for the Court: Stanford, Justice.
• Citation: State v. Deen, 69 Ariz. 188, 211 P.2d 460 (Ariz. 1949)
• Decision Date: 21 November 1949
• Docket Number: 996
• Parties: STATE v. DEEN

211 P.2d 460

69 Ariz. 188

STATE v. DEEN

No. 996

Supreme Court of Arizona

November 21, 1949

Prejudicial error having been committed herein, the case is reversed and remanded for a new trial.

Robert R. Weaver and Darrell R. Parker, of Phoenix, attorneys for appellant.

Fred O Wilson, Attorney General, Chas. Rogers, Assistant Attorney General, Maurice Barth, Assistant Attorney General, attorneys for appellee.

Stanford Justice. La Prade, C. J., and Udall, Phelps, and De Concini JJ., concurring.

OPINION

Stanford, Justice.

Appellant was informed against by the county attorney of Maricopa county for statutory rape of his daughter. For the protection of the daughter's name we will term her as the prosecutrix. We will also term the appellant, the defendant, and the State of Arizona, the state.

The prosecutrix was at the time of the alleged offense fifteen years of age. The information stated the offense was committed on July 15, 1948.

The mother of the prosecutrix died when she was a small child and for many years she had resided with her father. The prosecutrix testified at the trial that the first act of sexual intercourse took place on February 16, 1948, and between that date and July 15, of that year, she and her father had sexual intercourse from one to three times a week. She made no complaint until July 23 when she complained to Joe James, a member of the Phoenix police department, and his wife Audrey James.

Prosecutrix testified that her failure to make an earlier complaint was because her father had threatened to do her injury in event she should tell anyone.

The state presented two witnesses, the prosecutrix and the county medical examiner, Dr. O. C. West testified that he examined the prosecutrix on the afternoon of July 23rd; that in making a vaginal examination he discovered that the vaginal canal was relaxed. He testified that there were no contusions or bruises and that the hymen of the prosecutrix had been ruptured a considerable time previously.

The prosecutrix testified she had never had sexual intercourse with any other person than her father. The defendant not only denied the accusation, but offered proof that motive for making the false charge was that the daughter had rebelled at his discipline and especially in connection with playing hooky and going to places socially which were disapproved of by the father

A verdict of guilty was returned by the jury. From said verdict, and from the order of the court denying a motion for new trial, and the sentence and judgment, the defendant has brought his appeal to this court.

Defendant cites as assignments of error committed by the trial court the following:

"I. The trial court erred in sustaining the State's objection to the following offer of proof for the reason that the appellant was thereby precluded from explaining the physical condition testified to by the witness Dr. O. C. West, and precluded from refuting the testimony of the prosecutrix that she had never had sexual intercourse with anyone except appellant, consistently with the innocence of the appellant, viz:

"'Mr. Weaver: I make an offer of proof. I offer to prove by the witness on the stand now, that is, Mrs. Josephine Walker that she has seen young men and one particular young man many times go into the home of Hassen Deen during his absence. And that she has upon a number of occasions seen him leave there hurriedly when someone would be coming, and once when Hassen Deen was returning home, sticking the top of his shirt into his trousers, with his shoes unlaced. I offer to make the same proof by her husband William Walker. I offer to prove by Bonnie Price that Rema told Bonnie Price that Rema's Policeman friend, Joe James, was sure a hot kisser. I offer to prove by Tony Silvio that they had the girl in their home and she made advances to the young men in his home. He had to send her back to the Convent. He would not be responsible for her.

"'Mr. Renaud: In that respect might I add in the record it is true, Mr. Weaver, that the accusations of Silvio were subsequent to the filing of this charge.

"'Mr. Weaver: Yes, I made that -- in regard to Mr. Silvio and the Price girl which occurred subsequent to this charge -- as a separate offer of proof. And then I offer to prove by a Mrs. Schack, Alice Schack and Alma Allen and Charley Allen that they have seen the young men immediately next door to them make signals to the girl and she would come over there, and in a room right next to their home and would sit on the couch with her arms around each other, hugging and kissing. And that on those occasions usually they would get in a car and drive out somewhere. I believe that is all.

"'Mr. Renaud: I object to the matters which have been indicated as matters which would be brought by the counsel for the defendant as all being incompetent, irrelevant and immaterial, having no probative value either as to the chastity, the character or as to the credulity of the story of the prosecutrix, to wit, Rema Deen.

"'The Court: The objection will be sustained.

"II. That the trial court erred to the prejudice of the appellant in sustaining the State's objection to the offer of proof set forth in Assignment of Error No. I for the reason that the appellant was thereby precluded from showing a possible motive on the part of the prosecutrix for bringing a false charge against him.

"III. The trial court erred to the prejudice of the appellant in denying the following offer of proof for the reason that the evidence offered had a tendency to show motive on the part of prosecutrix for bringing a false charge against her father in order to be rid of parental discipline:

"'I offer to prove by Tony Silvio that they had the girl in their home and she made advances to the young men in their home. He had to...