State v. Martinez, 985

• Decision Date: 04 October 1948
• Docket Number: 985
• Citation: 67 Ariz. 389,198 P.2d 115
• Parties: STATE v. MARTINEZ et al
• Court: Arizona Supreme Court

198 P.2d 115

67 Ariz. 389

STATE v. MARTINEZ et al

No. 985

Supreme Court of Arizona

October 4, 1948

Appeal from Superior Court, Maricopa County; Edwin Beauchamp, Judge.

Raymond Martinez and others were convicted of forcible rape and of simple assault, and they appeal.

Judgment affirmed.

Albert M. Garcia and James H. Garcia, both of Phoenix, for appellants

Evo De Concini, Atty. Gen., and Edward Jacobson, Asst. Atty. Gen for appellee.

Stanford Chief Justice. LaPrade and Udall, JJ., concur.

OPINION

Stanford Chief Justice.

In four counts set forth in an information filed by the county attorney of Maricopa County each of the defendants (appellants) were charged in count I with the crime of forcible rape of prosecutrix Mary Villalobos; count II with robbery of one Nicholas Trujillo; count III for forcible rape of prosecutrix Betty Martinez; count IV for aggravated assault upon aforesaid prosecutrix Mary Villalobos. After pleas of not guilty to each count were entered, trial was had and all four defendants were found guilty by the jury of rape on count I and simple assault (an included offense) under count IV. Sentence was imposed by the trial court on each of the defendants to serve a term of not less than seven nor more than ten years in the Arizona State Prison on count I, and to time served in county jail (85 days) on count IV.

From the aforesaid judgment and sentence appeal has been brought to this court.

The facts of the case are that about 9 p. m., on the evening of June 27, 1947, defendants (one of whom was under 18 years of age and two were under 21 years of age) approached one Frances Almeda while she was walking west on Lincoln Street in Phoenix, being a street south of the railroad tracks. She was asked where she was going and when she ignored the question the defendants grabbed her, took her money, beat her, and started dragging her in the direction of what is known as "Lincoln School grounds" in said city, but observing a couple walking near the scene the defendants fled. On the same evening prosecutrix Mary Villalobos was returning from work when one of the defendants approached her and told her that her husband was at the Lincoln School grounds with another woman. Upon her denial of the statement one of the defendants struck her with his fist, and the four defendants dragged her to the Lincoln School grounds. She was given a severe beating and lost consciousness. She was found in an unconscious condition and completely naked by two officers who came upon the scene shortly thereafter. All four defendants, as well as Betty Martinez and her escort Nicholas Trujillo, were present when the officers arrived. This couple had been brought previously to the school ground by the defendants, one of whom was in the act of sexual intercourse with prosecutrix Betty Martinez when the officers appeared. Her escort Nicholas Trujillo claimed that he had been robbed by defendants by putting him in fear of his life.

Further facts will be disclosed as our opinion continues.

Defendants offer as their four assignments of error, the following:

"1. The court erred in allowing the witness Frances Almeda to testify over appellants' objection relative to an attempt by appellants to rape and/or rob the said witness Almeda.

"2. The court erred in denying appellants' offer to introduce defendants' exhibits 2, 3, 4, 5, 6, & 7 marked for identification, in evidence, which were records of the Phoenix City Police Department consisting of booking slips, to show specific acts of unchastity inasmuch as they referred to the prosecutrix, Maria Villalobos.

"3. The court erred in examining and adjudging the witness, William Walker, guilty of contempt before he gave his testimony for the defendants.

"4. The court erred in overruling appellants' motion in arrest of judgment for the reason therein stated that the verdict of the jury was so uncertain that it does not appear therefrom that the jurors intended to convict the defendants of an offense of which they could be convicted under the information."

With respect to assignment number one, objection is made to the ruling of the trial court admitting the testimony of witness Frances Almeda because it showed the commission by the accused of a crime entirely distinct and independent from that charged in the case at bar. The well-established principle of law to the effect that evidence of the commission by accused of other offenses entirely distinct and independent of that for which he is on trial is neither relevant nor admissible is the accepted rule in this jurisdiction. Dorsey v. State, 25 Ariz. 139, 213 P. 1011; Taylor v. State, 55 Ariz. 13, 97 P.2d 543. Equally recognized in this state is the best known exception to this rule, to wit, that where the evidence of similar offenses tends to show a system, plan or scheme embracing the commission of two or more crimes so related to each other that the proof of one tends to establish the other, such evidence then becomes both relevant and admissible. Cummings v. State, 20 Ariz. 176, 178 P. 776; Vigil v. State, 33 Ariz. 51, 262 P. 14; Taylor v. State, supra; State v. Pierce, 59 Ariz. 411, 129 P.2d 916; State v. Byrd, 62 Ariz. 24, 152 P.2d 669. See also II Wigmore on Evidence (Third Edition) Sec. 304. This court, in the case of Taylor v. State, supra [55 Ariz. 13, 97 P.2d 545], applied this exception to cases of this character in these words:

"* * *, for in the case of rape, either statutory or forcible, evidence of similar offenses which shows that in the commission of the offense the accused used a system or plan, tends just as much to establish the act charged, as does the evidence of similar acts in the case of any other crime."

We think, that in the case at bar the facts eminently justify the use of the well-reasoned exception to the general rule of inadmissibility. The assault and attempt to rape the witness Frances Almeda had more than mere similarity to the offenses charged to justify its admission in evidence. Occurring as it did on the same night, involving the same attackers, in the same immediate locale, in much the same manner and but a few hours prior to the offenses with which these appellants are charged, it more than suggests a plan on the part of the appellants to engage in a drunken evening of robbery and rape.

The appellants next assign as error the refusal of the trial court to admit in evidence six "booking slips" taken from the files of the Police Department of the City of Phoenix. Most of the slips had reference to prosecutrix Betty Martinez whom the appellants were acquitted of raping, but one covered the arrest of prosecutrix Mary Villalobos and it is the contention of the appellants that these "booking slips" were admissible as showing specific acts of unchastity on the part of these two women.

The law with reference to the admissibility of evidence of prior specific acts of unchastity of the prosecutrix in non-statutory rape cases is clearly stated in the case of State v. Wood, 59 Ariz. 48, 122 P.2d 416, 417, 140 A.L.R. 361:

"* * * But equally well established is the principle that where the defendant is charged with the crime of rape alleged to have been committed on the person of a woman over the age of eighteen years, accomplished by means of force or violence, it is error to exclude evidence which tends to show prior unchaste acts of the prosecutrix either with the defendant or with other men. * * *"

The trial court properly gave the defendants full opportunity to examine the police officers and others both as to specific acts of unchastity of the two prosecutrixes as well as to their general reputation for unchastity. Some very damaging testimony along these lines was given which probably accounted for the acquittal of the charge of raping Betty Martinez contained under count III. However we think that the court very properly refused to admit in evidence the "booking slips" from the police department. A mere reading of the comments on defendants' exhibit No. 2 for identification, which is typical of the exhibits offered, "This woman was drunk on the street. She told Officer Norris that she had stayed with five men this afternoon. She was in company with a known prostitute Josephine Bustomonte," shows its inadmissibility. It is the rankest kind of hearsay, a mere informal memoranda of possible acts and not proof of acts. See 22 C. J. Evidence, §§ 168, 174, pages 207, 214, 31 C. J. S. Evidence, §§ 194, 200.

At the beginning of the trial the rule was invoked calling for the exclusion of witnesses from the courtroom. When defense witness William Walker was called to testify as to a minor point it developed that he had not abided by the court's instruction in that respect, as he had subsequently been in the courtroom and had heard a small part of the evidence. Whereupon, in the presence of the jury, the court calmly and without any comment or reprimand adjudged him guilty of a direct contempt of court and sentenced him to serve two days in the county jail. The witness then was allowed to continue with his testimony. This disciplinary action on the part of the court is assigned as error, which appellants contend deprived them of a fair trial. Undoubtedly the witness was in contempt and the Court had the right to punish him in the manner that it did, though we submit that it would have been much the safer...