State v. Haston

• Decision Date: 18 February 1946
• Docket Number: 959
• Parties: STATE v. HASTON
• Court: Arizona Supreme Court

166 P.2d 141

64 Ariz. 72

STATE v. HASTON

No. 959

Supreme Court of Arizona

February 18, 1946

Appeal from Superior Court, Pinal County; W. C. Truman, Judge.

Nathan L. Haston was convicted on eight counts charging incest assault with intent to commit incest, statutory rape, and assault with intent to commit rape, and he appeals.

Judgment affirmed.

George D. Locke and Terrence A. Carson, both of Phoenix, for appellant.

John L Sullivan, Atty. Gen., and Earl Anderson, John W. Rood, and Burr Sutter, Asst. Attys. Gen., for appellee.

Stanford Chief Justice. LaPrade and Morgan, JJ., concurring.

OPINION

Stanford, Chief Justice.

Defendant was charged by information with the commission of eight felonies designated by eight counts. Count No. 1 charges the crime of incest was committed on or about January 15, 1945, with Anna Bell Haston, fourteen years of age, daughter of defendant. Count No. 2 charges the crime of incest January 18, 1945, with the same person, Anna Bell Haston. Count No. 3 charges the crime of assault with intent to commit rape on or about December 18, 1944, with Maxine Haston, eight years of age, daughter of defendant. Count No. 4 charges the crime of assault with intent to commit incest on or about December 18, 1944, with said Maxine Haston. Count No. 5 charges the crime of assault with the intent to commit rape on or about July 1, 1942, upon Helen Garrett, fourteen years of age, daughter of defendant. Count No. 6 charges the crime of assault with the intent to commit incest on or about July 1, 1942, with said Helen Garrett. Count No. 7 charges the crime of statutory rape on or about January 15, 1945, with said Anna Bell Haston. Count No. 8 charges the crime of statutory rape on or about January 18, 1945, with said Anna Bell Haston.

The law of our state relating to certain offenses charged in the information is as follows:

Sec. 43-405, A.C.A.1939, relates to a person who may be guilty of the crime set forth in counts 1, 2, 4 and 6: "Incest. -- Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable * * *."

Sec. 63-107, A.C.A.1939, in reference to prohibited and void marriages is as follows: "The marriage of persons of Caucasian blood, or their descendants, with Negroes, Hindus, Mongolians, members of the Malay race, or Indians, and their descendants, shall be null and void. The marriage between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the one-half as well as of the whole blood, and between uncles and nieces, aunts and nephews, and between first cousins, are incestuous and void. Children born out of wedlock, or the relations thereof, are included within the prohibition."

Counts 3, 5, 7 and 8 are based on the following part of Sec. 43-4901, A.C.A.1939:

"Rape defined -- Age limitation * * *. -- Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under any of the following circumstances:

"Where the female is under the age of eighteen (18) years; * * *."

The statement of other circumstances under which rape may be committed are omitted as having no bearing on this case, the charge here being what is known as statutory rape, the act having been committed with a female person under the age of eighteen years and our law is that such a person does not have to resist, for our state resists for her.

The jury in this case returned a verdict against the defendant finding him guilty of all of the counts charged in the information. From the judgment of conviction and sentence rendered in the superior court, defendant has appealed to this court.

Defendant submits nine assignments of error covered by his following propositions of law:

"1. A conviction and sentence for statutory rape cannot be sustained upon the uncorroborated testimony of the prosecutrix where her story is so impossible and incredible that no reasonable man could believe it.

"2. Every person accused of an offense is entitled to a fair and impartial trial, conducted impartially and without bias and prejudice.

"3. Under the Constitution of the State of Arizona, and of the United States of America, the defendant has a right to know the nature of the accusation against him. This right requires that the offense be charged with clearness and all necessary certainty to apprise the accused of the crime of which he stands charged.

"4. Evidence of other crimes, not connected with the crime charged, may not be offered by the prosecution in a criminal case. Such action on the part of the state contravenes and constitutional provisions requiring that every person accused of a crime be given a fair and impartial trial."

Counts 1, 2, 7 and 8 of the information have to do with the commission of the crimes of incest and rape with Anna Bell Haston. The time of the commission of the offenses of incest is also the time alleged when the offense of rape was also committed.

The evidence shows that Anna Bell Haston had left the home of her parents near Eloy, Pinal County, Arizona, and gone to Phoenix and from there to Prescott. She left the home about the 20th day of January, 1945, and the testimony shows that she left because of the treatment of her by her father. In testifying in the trial court as to the offenses alleged to have been committed, both incest and rape, on or about the 18th day of January just before she left home, the witness stated that her father sent her little sister to a store and she was in the house with him; that he went to an automobile and got a small rope and tied her across the bed, "and then he had the advantage of me. And then he told me if I ever told, it would be my life." She further testified:

"Q. Now, do you know the meaning of the word 'sexual intercourse,' Anna Bell? A. I do.

"Q. Did he commit an act of sexual intercourse with you? A. He certainly did."

As to the offenses of both incest and rape alleged to have occurred on or about the 15th day of January, 1945, the said witness, Anna Bell Haston, who had testified that she was fifteen years of age, further testified as follows:

"That time my little brother was playing out in the yard, and he came in to the house, and Daddy made him go back out and play, and he, I told him first, I said, 'I am going out and play with him.' He said, 'No, you are not giong out and play with him.' He would not let me go out and play. And he grabbed my arm and threw me down, and he said, first pulled my dress up, and I told him I wasn't going to pull it up, and he pulled it up anyway, and I slapped him and he knocked me down. Then he tied me to the bed and had advantage of me.

"Q. Now, did he at that time and place have sexual intercourse with you? A. He certainly did."

The witness also testified acts of sexual intercourse were had with her by her father in the State of Oklahoma before they moved to Arizona, and other times in Arizona.

Dr. Glen H. Walker, a physician and surgeon, testified that he examined Anna Bell Haston about the 15th day of February, 1945, and testified that her condition was that of a female who had indulged in acts of sexual intercourse.

In our case of Power v. State, 43 Ariz. 329, 30 P.2d 1059, 1060, we said: "It is the general rule that, in prosecutions for illicit intercourse of any class, evidence is admissible of sexual acts between the same parties, prior to the date of the specific act charged, notwithstanding that such evidence may tend to prove the commission of a separate and independent crime. * * *"

The trial court took the precaution by an instruction in respect to other crimes, stating: "You are instructed that evidence of crimes other than those charged in the information, if you find and believe that such crimes were committed by the defendant, are admissible for the sole purpose of showing a system, plan and scheme of the defendant and to prove the lustful and lascivious disposition of the defendant and as having a tendency to render it more probable that the acts and attempted acts of sexual intercourse charged in the information were committed on or about the dates alleged, and for no other purpose."

This is a case where the crime of rape alleged could not be committed without the commission of the offenses of incest. The point made by defendant that the prosecuting witness, Anna Bell Haston, did not make known soon after the offense occurred that the crimes were committed is well treated in our opinion of Levy v. Territory, 13 Ariz. 425, 115 P. 415, 416. This was a case of statutory rape. In that opinion we said: "* * * 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 commission of the crime of rape in the instant case necessarily carries with it the commission of the crime of incest and in support of that statement we quote from State v. Warner, Utah, 291 P. 307, 309: "* * * The undoubted weight of modern authority is that to show a completed sexual offense it is not essential to show an emission, whether the offense be rape, adultery, incest, or other carnal knowledge. * * *"

The complaint of defendant that the conviction in this case cannot be sustained on the uncorroborated testimony of the prosecutrix is determined by our case of State v Pollock, 57 Ariz. 415, 114 P.2d 249, 250, in which we said: "The first...