Taylor v. State, Criminal 880

• Decision Date: 08 January 1940
• Docket Number: Criminal 880
• Citation: 55 Ariz. 29,97 P.2d 927
• Parties: OSCAR TAYLOR, Appellant, v. THE STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

97 P.2d 927

55 Ariz. 29

OSCAR TAYLOR, Appellant, v. THE STATE OF ARIZONA, Respondent

Criminal No. 880

Supreme Court of Arizona

January 8, 1940

APPEAL from a judgment of the Superior Court of the County of Maricopa. H. K. Mangum, Judge. Judgment reversed.

Mr Marshall W. Haislip, for Appellant.

Mr. Joe Conway, Attorney General, Mr. Albert M. Garcia, Assistant Attorney General, Mr. Richard F. Harless, County Attorney and Mr. Darrell R. Parker, Assistant County Attorney, for Respondent.

OPINION

McALISTER, J.

The defendant, Oscar Taylor, was convicted of statutory rape and from the judgment and the order denying his motion for a new trial he appeals.

A number of errors have been assigned but they are discussed under four propositions of law. To understand the assignments properly it is necessary that one have the facts in mind. From the record it appears that appellant was charged with rape alleged to have been committed on March 25, 1938, upon the person of Esther Jackson, a child eleven years of age then living with her family on 16th Place, which is south of the Southern Pacific tracks and between 16th and 17th Streets in Phoenix. Appellant was then and had been for a number of years an employee of the Southwestern Sash & Door Company in Phoenix and was living at 216 West Osborn Road. He was forty-nine years of age and had a daughter and a granddaughter. For seven or eight months before the alleged offense he had been acquainted with the family of Esther Jackson, had visited there frequently and often took with him gifts of groceries and small change which he gave to the Jackson children, of whom there were six. Her mother was ill and some time prior to March 25th had entered a rest home on south 15th Place where she was then resting and later, May 30th, died.

The prosecuting witness testified in substance that early in the afternoon of Sunday, March 20th, appellant visited the Jackson home, gave her $1.12 and suggested that she buy a pair of slacks for her birthday which was the next day. Her older sister took the money and bought the slacks for her. The following Friday she was released from the Wilson School, which she attended, about 4:00 P.M., when she caught the school bus and rode to 16th and Sherman Streets at which point she left the bus and went home. Upon arriving there her father gave her some money and sent her to a Chinese store at the corner of 16th and Jefferson Streets to buy some food for the evening meal. She walked to the store, purchased her groceries and started home on 16th Street, going south. After walking a short distance appellant who was coming from the south on 16th in his car passed her but before going much further north he turned around, drove south, overtook her, stopped, picked her up and asked her if she wanted to go to the hospital to see her mother, stating that he would bring her right back home so she could cook supper. She replied that she was willing to go if he would hurry and bring her back home, and this he promised to do. After she got into the car appellant drove down 16th Street, passed the hospital or rest home without stopping and went on to the river bottom where he turned off on a side road for some distance and brought his car to a stop. He then asked her if she would have sexual intercourse with him for fifty cents. She refused and "he started to crabbing," told her it would not hurt and asked her to get in the back seat. She did and after getting there himself he pulled her "pants off and then stuck his thing" into her. She told him it hurt but he did not stop, so she began crying and stated to him that if he did not stop she would tell her daddy, and he stopped. She put on her pants and appellant then drove her back to a point on 16th Street near her home, gave her fifty cents, asked her to say nothing about the incident and let her out of the car.

That evening she cooked supper for the family and some time after dark washed her underclothing, which had become bloody from the treatment of appellant, so that none of the family would see it. She did not report the occurrence until the 13th day of April at which time she was taken into custody and questioned by one of the deputy juvenile probation officers.

Dr. Charles W. Sult testified that he examined the genital organs of the prosecutrix in April, 1938, found the vagina to be enlarged and bearing evidence of irritation and some discharge, and in his opinion she had engaged in sexual intercourse.

Grace Miller testified to a conversation she had with the appellant in front of her home on the evening following the day of the crime. During this conversation appellant told her that he had been out with Esther Jackson the night before and had intercourse with her but that he did not have very good success and wanted to try it again.

The appellant denied categorically that he committed the crime charged and introduced the testimony of a large number of witnesses as to his custom or habit of going home around 4:00 P.M., at the end of each day's work, though none of them testified positively as to what occurred on the 25th day of March, 1938.

In rebuttal of this testimony, the state placed on the stand four witnesses who testified that they saw the appellant between 2 and 6 o'clock in the afternoon in the southeastern section of Phoenix about the month of March, 1938.

One of the four propositions of law is based upon the refusal of a new trial sought upon the ground that the verdict is not supported by the evidence but is contrary to both it and the law. Appellant contends that statutory rape is not sustained by the statement of a young girl whose testimony is inherently improbable and very unreasonable, has been directly contradicted and proved false by convincing evidence and shown to have been given under coercion. If these accusations against the testimony of Esther Jackson were true, clearly it would not support a charge of rape, but if they are not ture, and this was wholly for the jury to decide, the verdict is amply supported by the evidence and a new trial was properly denied. The fact that the evidence discloses such horrible acts on the part of appellant does not mean that it is untrue, for it is well known that there are people so abnormal and perverted sexually as to commit such crimes. Appellant denied the testimony of Esther Jackson and introduced evidence to show that it was his custom to return home from work shortly after 4:00 P.M. each day and, hence, that he could not have been in the section of the city where Esther lived on March 25th between 4:00 and 5:00 P.M., but none of his witnesses state positively that he was at home at that hour on that particular day. The only persons present when the act was committed were Esther Jackson and appellant, and the jury believed what the former said, as was its right. The statement that the evidence was given under coercion is based upon the fact that the deputy probation officer to whom the prosecuting witness first admitted the act was in the court room when the latter gave her testimony but did not herself testify. Just why the presence of this officer at the trial and her failure to take the witness stand could or should be construed as coercion does not appear. This assignment is without merit.

The second proposition is that the judge should not comment on the weight of the evidence nor should he assume as proved facts on which there is conflicting evidence or advise the jury that certain material evidence or a legal theory of the defense is irrelevant and immaterial. These statements are correct as abstract propositions of law but no substantial departure from them is found in the instructions. After informing the jury that the rape charged in this case is known as statutory or constructive rape, and that it is so designated because the element of force which can be proved in the case of ordinary rape has no application where the girl is under the age of consent, the court advised it further that it is the policy of law

"that any female under the age of 18 years is in law incapable of consenting to an act of sexual intercourse, and anyone having sexual intercourse with her, she not being then and there his wife, is guilty of the crime of rape, notwithstanding the fact that he may have obtained her actual consent, because it is immaterial in this case whether the girl in fact consented or not."

By this instruction the appellant claims that the court directed the jury to disregard his theory of defense in that it told that body that the element of force has no application and that it is immaterial whether she does or does not consent when the girl is under the age of consent. This instruction correctly states the law, for the crime of statutory rape, as distinguished from ordinary rape, is committed when a girl under the age of eighteen years not the wife of the perpetrator has sexual intercourse with a man and it is wholly immaterial whether she consents or does not consent or whether the act is accomplished with or without force. Appellant does not deny this but contends that the testimony of the prosecuting witness indicates that the act was accomplished without her consent and, this being true, that the jury had a right to consider the fact that she told no one for three weeks as bearing upon the credibility of her testimony as to the manner in which appellant committed the act and consequently weakens her statement that he committed it at...