State v. Howard, 1332
| Decision Date | 25 March 1965 |
| Docket Number | No. 1332,1332 |
| Citation | 400 P.2d 332,97 Ariz. 339 |
| Parties | The STATE of Arizona, Appellee, v. Roy Eugene HOWARD, Appellant. |
| Court | Arizona Supreme Court |
Darrell F. Smith, Atty. Gen., Robert W. Pickrell, former Atty. Gen., Stirley Newell, former Asst. Atty. Gen., for appellee.
John J. Murphy, Phoenix, for appellant.
Appellant Roy Eugene Howard was tried and convicted on three counts of violation of A.R.S. § 13-652, lewd and lascivious acts. From the judgment and sentence thereon, he appeals.
The evidence for the State tended to show that on the dates specified in the information, appellant and a young girl, age 12, herein called the complaining witness, committed certain acts of fellatio and cunnilingus. It is appellant's position that the trial court erred in denying his motion for a directed verdict of not guilty in that the complaining witness was an accomplice and as such her testimony must be corroborated.
By statute:
Of this statute, we said, in State v. Thomas, that:
'The test of whether or not one is an accomplice is whether he could be informed against for the same crime of which the defendant is accused.' State v. Thomas, 79 Ariz. 355, 358, 290 P.2d 470, 472.
In the past this Court has held that both parties who voluntarily participate in unnatural sex acts are accomplices and can be charged as principals. State v. Sheldon, 91 Ariz. 73, 369 P.2d 917; State v. McDaniel, 80 Ariz. 381, 298 P.2d 798.
However, the State urges that the complaining witness is a child without knowledge of the wrongfulness of the acts and incapable of committing the offenses under the Arizona statute, which provides:
'All persons are capable of committing crimes except:
We of the majority believe the clear proof from the testimony of the complaining witness establishes that she knew of the wrongfulness of the acts. 'Q * * * after any of these times that you had these things happen to you why didn't you tell your mother what had happened?
'A Because I was frightened.
'Q Did Roy ever say anything to you--you know--about talking to anybody about what happened?
'A He said that if I told anybody that both of us would get in trouble.
'Q You say you were frightened if you talked, is that right?
'A Yes.
'Q What were you afraid of, * * *?
'A I was afraid I might get in trouble, too.
'Q What sort of trouble were you afraid of, * * *?
'A I don't know.
'Q Trouble from whom?
'A From the police.
* * *
* * *
'Q * * * when this first started you were six, is that right?
'A Yes.
'Q And you are now twelve?
'A I am twelve.
'Q That is six years that this was going on, and you didn't say anything to anyone?
'A No.
'Q Why not?
'A I was scared.
'Q Scared of what?
'A I might get in trouble.
'Q Well, can you tell us how you thought you might get in trouble?
'A By the police.
'Q Well, did you think somebody was going to tell the police on you?
'A No.
'Q Were you afraid you would be arrested?
'A No.
'Q Then what were you afraid of?
'A I was just afraid.
'Q All right. And when you finally two or three months ago told your mother about it, why did you tell her then?
'A Because Roy wasn't there, and then she said, she said that----
'Q Don't tell us what she said.
'A Well, I just broke down and told her.
'Q Because Roy wasn't there?
'A Yes.
'Q Where was Roy?
The complaining witness testified that she was afraid she would get in trouble if she told anyone about the occurrences and that this trouble would be from the police. Normally, intelligent twelve-year-old children are aware that the police exist for the purpose of suppression of crimes and to arrest and see that those who have committed wrongs are punished. We think it too plain for cavil that the complaining witness knew her participation in the acts charged was wrongful. That children of her tender age are not ordinarily prosecuted in the criminal courts in our society today does not detract from the fact that she could have been accused of the same offenses for which appellant was charged. She was, therefore, an accomplice under the Arizona statute.
Since no conviction may be had upon uncorroborated testimony of an accomplice, the court erred in failing to grant appellant's motions for directed verdicts on Counts I and III, those assertedly committed on the 15th day of May, 1962, and the 14th day of July, 1962. The information is ordered dismissed as to these two counts.
The situation, however, is different as to the second count of the information. There the testimony of Betty Belle Howard, former wife of appellant, concerning his statements of an injury to his private parts could have been found by the jury, under appropriate instructions, as tending to corroborate the testimony of the complaining witness. Where there is independent evidence which tends to link an accused with the commission of the offense, the requirements of the statute are fulfilled. State v. Sheldon, supra.
This brings us to appellant's assignment that the court erred in failing to instruct the jury as to the necessity for corroboration of the testimony of the complaining witness as an accomplice. It is the announced rule in Arizona that only where the evidence is clear and undisputed that a witness is not an accomplice is it proper for the court to fail to submit the question of whether the testimony of the accomplice has been corroborated. State v. Gutierrez, 81 Ariz. 377, 306 P.2d 634.
In the instant case, the court below failed to submit any instruction whatsoever concerning the necessity for corroboration of the testimony of the complaining witness. In State v. Betts, 71 Ariz. 362, 227 P.2d 749, we approved this statement taken from People v. Curran, 24 Cal.App.2d 673, 75 P.2d 1090:
* * *" State v. Betts, 71 Ariz. 362, 371, 227 P.2d 749, 755.
Failure to isntruct the jury on the applicable principles of law concerning the necessity for corroboration of the testimony of the accomplice even though not requested is reversible error, People v. Dobkin, 74 Cal.App.2d 269, 168 P.2d 729, and requires that the conviction on the second count of the information be set aside.
We do not consider the appellant's further assignments as of such a nature as will likely occur on a retrial and therefore do not feel that it is necessary to pass upon them. The judgment of the court below is reversed with directions to dismiss the first and third counts of the information and to grant appellant's motion for a new trial on the second count.
Reversed with directions.
I do not believe the child knew the wrongfulness of the acts; certainly there is no 'clear proof', as required by statute, that she knew the acts were wrongful.
The majority feels that clear proof of the knowledge of the wrongfulness of the acts is established by the child's testimony that she feared she would get in trouble with the police if she told anyone. Even this knowledge was limited, as shown by the evidence, since she did not know what sort of trouble she would have with the police, nor did she fear arrest.
The problem of determining whether a child knows an act is wrong is a broad problem. It is much too complex to be solved by answering the question of whether the child feared trouble from the police.
It is proper to consider several questions in determining whether a child knows the wrongfulness of an act constituting a crime. Does the child understand the nature and effect of the act? Does the child know that the act is forbidden? Does the child know that if he or she commits the act he or she will be punished, either legally or morally, or both? And from these questions, and other questions that are raised by any particular facts of the case, it must be determined whether the child knew the wrongfulness of the act, keeping in mind that the law requires clear proof. If the proof is such that reasonable persons would agree that it fails to clearly show knowledge of wrongfulness, then the trial judge has the duty of ruling on the question as a matter of law; if reasonable persons could differ as to the clarity of proof of knowledge of wrongfulness, then it becomes a matter for the jury to decide in their deliberations.
The quoted testimony does not show that the child understood either the nature or the effect of the act. It does not show in any manner that the child understood the moral quality of the act, or that the child knows the act is forbidden or that she would be punished if she commits the act. The only fact the testimony affirmatively shows is that she was scared of trouble from the police.
One of the important factors in the testimony, which bears on the question of whether the child knew of the wrongfulness of the act, is the fact that the appellant had induced the child to perform such acts since the child...
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