State v. Guerrero, Criminal 909

• Decision Date: 12 January 1942
• Docket Number: Criminal 909
• Citation: 120 P.2d 798,58 Ariz. 421
• Parties: THE STATE OF ARIZONA, Appellee v. ARTURO GUERRERO, Appellant
• Court: Arizona Supreme Court

120 P.2d 798

58 Ariz. 421

THE STATE OF ARIZONA, Appellee v. ARTURO GUERRERO, Appellant

Criminal No. 909

Supreme Court of Arizona

January 12, 1942

APPEAL from a judgment of the Superior Court of the County of Maricopa. Jesse A. Udall, Judge. Judgment affirmed.

Mr. Joe Conway, Attorney General, Mr. Albert M. Garcia, Assistant Attorney General, Mr. Richard F. Harless, County Attorney and Mr. Darrell R. Parker, Deputy County Attorney, for Appellee.

Messrs Cox & Cox and Mr. Herbert Watson, for Appellant.

OPINION

ROSS, J.

From a conviction of forcible rape upon one Lorraine Malone on or about the 31st day of August, 1940, in Maricopa County, and a sentence to the penitentiary for from 30 to 35 years, the defendant, Arturo Guerrero, has appealed.

Much of his brief is devoted to an attack upon the sufficiency of the evidence to support the verdict. Under his plea of not guilty he undertook to prove an alibi, which implies he was not present when the alleged act took place and therefore did not commit it. The evidence on this issue was in sharp conflict. The jury believed the evidence of the state's witnesses and not that of the defense. We accept the verdict of the jury.

No purpose can be served by recording here the sordid details of the crime. Suffice it to say that said details do no credit to either the prosecuting witness or the defendant. The prosecuting witness, with a juvenile court history, on such day had been visiting different bars and imbibing intoxicants rather freely and when she, along towards eleven o'clock at night, could not longer take care of herself, the defendant, with a man by the name of Charles Williams and several Mexican boys, took her into defendant's automobile and drove to South Mountain Park, about six or seven miles from Phoenix, and while she was still in a half stupor the defendant committed the act or acts charged.

In considering the alleged errors of the trial we must assume the jury was composed of men of average experience and intelligence and that they acted upon what the court by its rulings regarded as competent evidence and not upon what counsel may have claimed to be the evidence. The transcript of the testimony is very long, consisting of 993 pages of typewritten matter. The defendant's opening brief is 183 pages long and to its length must be added quite an extensive brief for the state and defendant's reply thereto. Much of what is called to our attention consists of unpleasant remarks and disputes of counsel directed towards each other, and much of it is made up of matter that should never have gone into the record.

The county attorney in his opening statement to the jury said, in effect, that Charles Williams and his associates had lured the prosecuting witness' husband into a poker game and the wife to the South Mountains for the purpose of raping her. This statement is assigned as error. We think the interpretation of the evidence given by the county attorney, under the circumstances, is a reasonable and fair statement.

The county attorney in his argument to the jury called their attention to the fact that the evidence showed defendant, after his arrest, had escaped from the officers and remained at large about two months and when rearrested had a loaded pistol, ammunition, lamp black, a mask and two pairs of colored glasses on his person. Defendant insists that this evidence was "for the purpose of arousing prejudice against defendant on account of another crime alleged to have been committed." Proof of flight is always competent.

"The flight of concealment of accused raises no presumption of law that he is guilty; but it is admissible in evidence as a fact which may be considered by the jury, and from which they may draw an inference, in connection with other circumstances and in the absence of an explanation of the reasons or motives which prompted it, that he is guilty; and this is true whether the other evidence of guilt is direct or circumstantial. For the same purpose the events and circumstances connected with the flight of accused are equally admissible. The law makes no nice or refined distinction as to the manner or method of a flight; it may be open, or it may be a hurried or concealed departure, or it may be a concealment within the jurisdiction...."

16 C.J. 551, sec. 1063; 22 C.J.S., Criminal Law, § 625.

and certainly counsel for the state can comment on it, pointing out its significance.

It is said the above-alleged errors, perhaps standing alone, would not justify a reversal but that the camel's back was broken when the county attorney, in his final argument, "pictured the prosecuting witness as a quiet, simple, dutiful wife, living in a happy home, true to a husband, and ruthlessly dragged from these surroundings to the brush and brambles of South Mountains by a fiend who took advantage of her innocence and confidence." This picture may have been a bit overdrawn, but the jury, being of average intelligence, would not be misled thereby.

Exception is taken to "slighty remarks" addressed to the defense by the county attorney. There are a good many of such remarks in the record by both counsel. On that point we will have to rule it is "tit for tat."

State's Exhibit O for identification was a vial containing some pubic hairs. It was not introduced in evidence for the reason that the source of its contents was not shown. All reference to it was stricken on motion of defendant. The complaint is that Exhibit O was "kept before the jury during the trial, and at no time was any effort made to properly identify same or to introduce any testimony rendering same admissible." We cannot see how that fact prejudiced defendant.

One of the witnesses for the defense was a Mrs. Mercedes Navarro, a widow, at whose house defendant was living when the alleged crime was committed. For the purpose of showing the interest of the witness, she was asked by the county attorney if she were living with the defendant as his commonlaw wife. Objection to the question was sustained. However, subsequently the defendant expressed a wish that the witness be permitted to answer it. Here counsel got into a squabble over it and it was never answered. In his argument the county attorney said, in substance, to the jury: "You know what kind of relations existed between defendant and Navarro; you can draw any kind of inference you want to." Under the circumstances, we think the court should have permitted the question to be answered when it was first asked. Interest of a witness may always be shown. 28 R.C.L. 615, section 204. If Navarro and defendant were living together, it is very probable that her testimony would be influenced in defendant's favor by that fact. That she did not answer said question in the negative is certainly not the fault of the county attorney.

The prosecuting attorney on the cross-examination of defendant asked him this question:

"Q. Directing your attention to September 4th, up in the -- up in Mr. Harless's office, in the presence of Mr. Bushong, and Mr. Maldonado, I will ask you whether or not you pulled up your pants leg, and showed certain skinned places on your knees, that your knees were skinned or abrased?" but thereafter made no effort to prove defendant's knees were "skinned or abrased." The rule seems to be well established that a prosecutor ought not to ask such a question of a defendant without following it up with proof. Britt v. State, 25 Ariz. 419, 218 P. 981; Walker v. State, 23 Ariz. 59, 201 P. 398. The only objection to such question was, "We object to that." Such an objection is equivalent to no objection. The defendant then answered the question as follows:

"A. You asked me, didn't you, and I showed you my sores that I had on my knees, and my sores, and then you didn't want to see my groin..."

This answer of defendant as to the condition of his knees must have been accepted and no effort by the county attorney was thereafter made to verify or refute such explanation. We think the record shows quite plainly that the question was asked in good faith and not through any improper motive and that it was not followed up by the witnesses Maldonado and Bushong either because it was overlooked by the county attorney or because he accepted defendant's explanation. If error was committed, it was harmless under the circumstances.

Defendant complains of the court's denial of his motion to dismiss the jury and declare a mistrial because the prosecuting witness, while being interrogated by defendant on cross-examination concerning her past life, fainted and fell from the witness chair to the floor and was assisted to her feet by members of the jury. It appears that after the prosecuting attorney had closed the state's case, the defendant asked permission to recall the prosecuting witness "for impeaching questions." As a matter of fact the inquiry of the witness was whether she had a juvenile court record, for the purpose of showing "prior unchastity." While this inquiry was being pressed, over the state's objection that it was improper and collateral, the witness fell from the stand in a dead faint. It is not questioned that she lost consciousness. She was not feigning. At that time she was 19 years old. The defendant was seeking to prove by her that when she was...