State v. McLain

• Court: Arizona Supreme Court
• Writing for the Court: DE CONCINI; UDALL
• Citation: State v. McLain, 74 Ariz. 132, 245 P.2d 278 (Ariz. 1952)
• Decision Date: 02 June 1952
• Docket Number: No. 1021,1021
• Parties: STATE v. McLAIN.

Page 278

245 P.2d 278

74 Ariz. 132

STATE v. McLAIN.

No. 1021.

Supreme Court of Arizona.

June 2, 1952.

Richey & Herring, Douglas and Tucson, for appellant.

Fred O. Wilson, Atty. Gen., Wesley E. Polley, Bisbee, County Atty. of Cochise County, for appellee.

DE CONCINI, Justice.

Bruce McLain, appellant herein and defendant below, was accused of the crime of statutory rape committed on Maria, a girl of 12 years of age. The lower court instructed the jury that they could return one of four possible verdicts, viz., (1) Statutory Rape, (2) Assault with Intent to Commit Rape, (3) Contributing to the Delinquency of a Minor, (4) Not Guilty. The jury returned a verdict against the defendant and found him to be guilty of the crime of Assault with Intent to Commit Rape. The defendant appeals to this court from the judgment and from the sentence of the lower court.

Defendant assigns 14 errors, many containing subassignments and 35 propositions of law upon which he relies.

The facts are that the defendant McLain was employed as a teacher in the Rucker Canyon School near Bisbee, Arizona. A teacherage by the school was provided as living quarters for him and his wife and two year old son. At the time of the alleged incident, the defendant's wife and son were out of the state visiting with relatives and the defendant remained at the teacherage alone. The prosecutrix was one of his eight students; the other seven were boys. During a dance which followed a school play, the defendant is alleged to have raped Maria. His testimony was to the effect that he only manipulated Maria's private parts and that she manipulated his which caused him to have an emission. The testimony of Maria is that he raped her while she was in his Chevrolet truck.

Assignments 1 to 5 deal with evidentiary matters.

Defendant's first assignment of error deals with the testimony of Mayola Vail, one of the state's witnesses. She related the exact words of the prosecutrix which were spoken soon after the alleged event. The words were, 'He screwed me'. The defendant strenuously objected contending that the words were hearsay and not part of the res gestae. The lower court however overruled the objection and the exact words were then repeated by Mrs. Vail. In this assignment of error we have what is commonly called an excited utterance, or a spontanous exclamation to which the term of 'res gestae' is sometimes applied. An excited utterance to come within the exception of the hearsay rule must have three requisites:

1. There must be a startling event.

2. The words spoken must be spoken soon after the event so as not to give the person speaking the words a time to fabricate.

3. The words spoken must relate to the startling event.

Wigmore, Sec. 1750, Vol. 6, p. 142. In this case, all the elements are present and therefore its admissiblity is unquestioned. Defendant however contends that because the utterance was forced out, by the continual prodding of Mrs. Vail when she asked Maria, 'you must tell us what happened', and since some time elapsed after the alleged event occurred, the utterance should have been inadmissible. Considering the prosecutrix's age and the excitement under the circumstances, it is not unreasonable that Mrs. Vail would ask Maria what had happened. The time involved here was of no greater length than that in Soto v. Territory, 12 Ariz. 36, 94 P. 1104, where this court held that even after one and a half hours, statements of a four year old boy to his mother were admissible as coming within the realm of a spontaneous exclamation.

Defendant's second and third assignments of error challenge the ruling of the lower court in refusing the defendant the right to cross-examine Maria on her previous acts of sexual intercourse when on direct examination she testified that she had had previous sex relationships. The general rule in statutory rape cases is that evidence of previous sexual acts on the part of the prosecutrix are not admissible. Sage v. State, 22 Ariz. 151, 195 P. 533. The exception to the general rule is where the prosecutrix testifies that the defendant is the only person who has had sexual intercourse with her. The defendant then is permitted to show that other persons have had carnal knowledge with the prosecutrix to prove that her condition might have been occasioned by intercourse with others and to rebut the credibility of the prosecutrix. State v. Deen, 69 Ariz. 188, 211 P.2d 460. This case does not come within the stated exception because the prosecutrix at no time during the trial accused the defendant as being the only person who had engaged in sexual intercourse with her.

Defendant's fourth assignment of error is based on the refusal of the lower court to allow him to cross-examine Maria about 'stud horse', an alleged sex game played by the children in the school yards. Defendant, by his cross-examination, wanted to prove that she had had intercourse by having played the game. She denied playing the game but not of previously having had sexual intercourse. Therefore it was immaterial. A refusal of permission to cross-examine on an immaterial issue is not reversible error.

Defendant's fifth assignment of error deals with the admission of certain pornographic pictures which were introduced by the state. Defendant's position is that such pictures were highly prejudicial to him and that the proper foundation was not laid in introducing them. In People v. Scott, 24 Cal.App. 440, 141 P. 945, 949, the California court held that such pictures were admissible in evidence and said:

'* * * Any act or declaration of defendant tending to show a desire or purpose on his part to have illicit relations with the prosecutrix or any solicitation or representation made by him to excite a similar desire on the part of his victim, or to overcome her natural aversion to wantonness, would be relevantly and clearly connected with the crime and therefore admissible.'

See also People v. Bose, 28 Cal.App. 743, 153 P. 965.

As to the proper foundation being laid by the state, we think that there was sufficient evidence in this case to connect the pictures with the defendant. They were found by the sheriff at the teacherage and initialed by him, and when Maria was shown the pictures by the county attorney she testified that these were the same pictures that the defendant had shown her.

Assignments of error 6 and 7 go to the court's refusal to dismiss the charge against defendant at the close of the state's case. Defendant relies on the contradictory statements of the state's witnesses and concludes that the testimony of the prosecutrix was unworthy of belief. We think the trial court was correct in its order, considering the age of the prosecutrix and the nature of the act she testified the defendant committed. Defendant's counsel in his opening statement admitted that the defendant was guilty of some criminal act but not that of rape. Therefore the court was justified in not dismissing the charge at that point. Furthermore there is no room to complain because defendant was not found guilty of the crime of rape but was found guilty of a lesser crime, which was justified in view of his own testimony which will be mentioned later herein. Moore v. State, 55 Ariz. 43, 97 P.2d 925.

Defendant's assignments 8, 9, and part of 13, are to the effect that the state failed to prove the corpus delicti of the crime of assault with intent to commit rape. Defendant argues and cites cases on the theory that when one is charged with an offense it is not error for the trial court to refuse to instruct the jury that it could find defendant guilty of a lesser or included offense. McDaniels v. State, 62 Ariz. 339, 158 P.2d 151. However that is not authority for the converse, that it would be error to instruct the jury on an included or lesser offense and give the jury an opportunity to bring in a verdict on a lesser offense. Defendant contends, because the state did not prove rape against him it therefore failed to prove the crime of assault with intent to commit rape because the testimony of the prosecutrix was unworthy of belief. Having already decided the lower cou...