State v. Sheldon

Decision Date14 March 1962
Docket NumberNo. 1208,1208
Citation369 P.2d 917,91 Ariz. 73
PartiesSTATE of Arizona, Appellee, v. Philip SHELDON, Appellant.
CourtArizona Supreme Court

Thomas J. Croaff, Jr., and Louis L. Zussman, Phoenix, for appellant.

Robert W. Pickrell, Atty. Gen., Stirley Newell, Asst. Atty. Gen., Charles N. Ronan, County Atty. of Maricopa County, Phoenix, for appellee.

UDALL, Vice Chief Justice.

Defendant appeals from his conviction under A.R.S. § 13-652 (1956) 1 for committing a lewd and lascivious act (fellatio) upon the person of a complaining witness, a youth fifteen years of age at the time of the offense.

The boy, whose first name (Harold) only will be mentioned herein, testified that on a night early in June of 1960 he first met the defendant in a Phoenix bus station. The defendant introduced himself as Dale Murphy, age 18, and proposed that they buy some beer. After purchasing the beer at a local tavern defendant drove Harold to a deserted spot on Bell Road north of Phoenix. Harold, who had never tasted beer before, drank four of the six cans of beer purchased. Thereafter defendant committed on act of fellatio upon the boy. The act of oral copulation lasted from ten to fifteen minutes and made the boy feel 'sort of sick to * * * [his] stomach.' Defendant then drove Harold to a drive-in restaurant before taking him home at 1:00 a. m. the following morning.

Harold next saw the defendant about a month later when, early in the evening of July 6, 1960, defendant asked Harold if he wanted a ride home from work. Harold first refused but then accepted the invitation and was allowed to do the driving 'around Phoenix' for 'an hour and a half or two hours.' Thereafter defendant purchased six cans of beer 'in a container' at the same tavern and again drove Harold out to Bell Road. This time defendant drank most or all of the beer after which he again performed an act of oral copulation upon Harold.

Defendant and Harold then picked up one J. R., a friend of Harold's, and drove to Wickenburg, Arizona arriving there at '1:30 or 2:00 o'clock' on the morning of july 7, 1960. The three had 'supper' at a Wickenburg restaurant before returning to Phoenix for 'a hamburger and a coke' at a drive-in. J. R. was then taken home and Harold was again allowed to drive the car, which he thereafter parked on a street in downtown Phoenix.

Seeing Harold and defendant in the parked car at 4:00 a. m. Phoenix police officers Kavanaugh and Chapel questioned the pair, searched the car and found the smashed beer carton. Defendant represented to the police that he was an eighteen-year-old named Dale Murphy. It was only when the officers then requested and examined defendnat's license that Harold first learned defendant was 27 and named Philip Sheldon. The officers then indicated to defendant that he was free to go but that they were going to take the boy to his home. When Harold was in the hands of the police and defendant started to drive away Harold told the officers, 'That fellow is a queer.' Defendant was then brought back to the scene of the questioning, whereupon Harold told the officers of both instances of fellatio described above.

Thereafter Harold and the defendant were taken to the Police station for further questioning. Later in the morning (9:00 a. m.) police sergeant Nelson questioned defendant regarding the incidents of the night before. Defendant then told Nelson that he had gone driving with Harold north of Phoenix, the J. R. had been picked up and taken to Wickenburg and back, and that Harold had been driving the car. And in answer to Nelson's questions as to homosexual acts defendant 'said that he had no sexual desire for women, that men were attractive to him * * * that possibly Harold had reason to believe he was queer.' Officer Chapel also interrogated defendant at 9:00 a. m. on July 7, 1960. Defendant responded to Chapel's questions as to 'tendencies toward other men' by saying that 'I probably have some tendencies, but you probably do too. Everyone has at one time.' There was no objection made to such testimony at the trial.

The only witnesses at the trial were Harold and the three policemen, J. R. having gone to California. Defendant neither testified nor presented any evidence in his own behalf.

The sole 'ground of appeal' 2 is that: 'The court erred in refusing to direct a verdict for the defendant.' And in support thereof defendant argues (1) that the complaining witness was an accomplice and (2) that his testimony was not sufficiently corroborated to support the conviction.

Whether a witness is an accomplice of the accused is generally determined by asking if the witness could be informed against for the same offense with which the accused is charged. State v. Martin, 74 Ariz. 145, 150-151, 245 P.2d 411, 414 (1952) (Arizona authorities collected.) And in sexual offenses it is particularly important to consider the distinction between consent and assent or mere submission respecting the conduct of the pathic. In this regard see People v. Dong Pok Yip, 164 Cal .143, 147, 127 P. 1031, 1032 (1912) in which the California Supreme Court stated:

'It may be admitted that the evidence shows that the boy was ignorantly indifferent and passive in the hands of the defendant, event to the point of submission; but there is a decided difference in law between mere submission and actual consent. Consent, in law, means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice, to do something proposed by another. 'Consent' differs very materially from 'assent.' The former implies some positive action and always involves submission. The latter means mere passivity or submission which does not include consent.

* * *

* * *

'In cases of the character under discussion, the age and mentality of the subject of an indecent assault is important, and should always be considered in determining the presence or absence of consent.'

And once it is determined that the complaining witness 'of his own volition participated in the act of fellatio he would in law be an accomplice * * *.' State v. McDaniel, 80 Ariz. 381, 384, 298 P.2d 798, 800 (1956). In this case, however, we cannot say that on the record presented the complaining witness was an accomplice as a matter of law. Accordingly, the trial court was correct in submitting that question to the jury under proper instructions. Cruz v. State, 40 Ariz. 436, 440, 14 P.2d 247, 248 (1932). Cf., State v. Gutierrez, 81 Ariz. 377, 381, 306 P.2d 634, 636, appeal dismissed, 355 U.S. 17, 78 S.Ct. 79, 2 L.Ed.2d 23 (1957).

Originally at common law an unindicted accomplice was permitted to testify against the accused '* * * partly on the ground that turpitude, though self-confessed, was no hindrance unless there had been a conviction of crime * * *.' 2 Wigmore, Evidence § 526 at 619 (1940). And when it was finally settled that even a convicted accomplice was competent to testify, his oath was regarded as sufficient as that of any other witness. 7 Wigmore, Evidence § 2056 at 312 (1940). Later, however, it became the practice of trial judges, in the exercise of their common law function of advising the jury as to the weight properly given to different types of evidence, to caution the trier of fact to consider such testimony 'with grave suspicion * * *.' Further, the jury members were admonished 'that they ought not to convict unless the evidence of the accomplice is corroborated * * *.' Rex v. Feigenbaum, 1 K.B. 431, 433 (1919). (Emphasis added.)

But what had begun as a 'counsel of caution' to be given at the discretion 3 of the trial judge has become by statute a rule of law in many American jurisdictions 4 including Arizona. Thus, A.R.S. § 13-136 (1956) provides that:

'A conviction shall not be had on the testimony of an accomplice unless the accomplice is corroborated by other evidence which, in itself and without aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that commission of the offense or the circumstances thereof.'

The above provision was taken from what is now Section 1111 of the California Penal Code, a provision which has been in force in that state since 1851. This California progenitor of A.R.S. § 13-136 was construed in People v. Ames, 39 Cal. 403, 404 (1870) to mean that:

'* * * the corroborating evidence must, of itself, and without the aid of the testimony of the accomplice, tend, in some degree, to connect the defendant with the commission of the offense. It need not, of course, be sufficient to establish his guilt; for, in that event, the testimony of the accomplice would not be needed. But it must tend, in some slight degree at least, to implicate the defendant. The purpose of the statutes was to prohibit a conviction unless there was some evidence, entirely exclusive of that of the accomplice, which, of itself, and without the aid of the accomplice, tended to raise at least a suspicion of the guilt of the accused.' (Emphasis added.)

This passage from the Ames case was first quoted with approval by this court in Reynolds v. State, 14 Ariz. 302, 303, 127 P. 731, 732 (1912). Before Reynolds, however, the California Supreme Court in People v. Thompson, 50 Cal. 480 (1875) had seemingly limited the Ames rule by saying that:

'* * * we did not mean to lay down [in Ames] the rule, that if the corroborating evidence sufficed to raise merely a suspicion of the defendant's guilt, and nothing more, that it would be a sufficient corroboration within the meaning of section 1111.' 50 Cal. at 481-482.

Nevertheless, and without reference to the Thompson case, the Ames passage has repeatedly been quoted with approval by this court as the proper interpretation of A.R.S. § 13-136. 5 What then does not phrase 'at least a suspicion of the guilt of the accused' mean in...

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  • State v. Edwards, 3957-2
    • United States
    • Arizona Supreme Court
    • May 4, 1983
    ..."some evidence in the case which is legally sufficient to lend credibility to the statements of the accomplice." State v. Sheldon, 91 Ariz. 73, 79, 369 P.2d 917, 921 (1962). The evidence need not directly connect the defendant with the offense. State v. Canada, 107 Ariz. 66, 67, 481 P.2d 85......
  • State v. Clayton
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    • Arizona Supreme Court
    • September 27, 1973
    ...350, 395 P.2d 708; that the evidence need not directly connect the defendant with the offense but need only tend to do so, State v. Sheldon, 91 Ariz. 73, 369 P.2d 917; that the necessary corroboration may be established by circumstantial evidence, State v. Bagby, 83 Ariz. 83, 316 P.2d 941; ......
  • Urbanec v. Lewis
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 11, 1989
    ...is not sufficient if it merely shows the commission of the offense or the circumstances thereof. See State v. Sheldon, 91 Ariz. 73, 369 P.2d 917, 920 (1962) (en banc) (quoting Urbanec argues that because there was no evidence besides the testimony of his accomplices that proved he committed......
  • State v. Martin
    • United States
    • Arizona Court of Appeals
    • January 25, 1966
    ...corroboration of an accomplice's testimony in order to sustain a conviction. 1 This statute was thoroughly reviewed in State v. Sheldon, 91 Ariz. 73, 369 P.2d 917 (1962), in which Vice Chief Justice Udall discusses the history of the law leading to the enactment of this statute. The words o......
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