Trimble v. Territory of Arizona

• Decision Date: 20 March 1903
• Docket Number: Criminal 166
• Citation: 8 Ariz. 273,71 P. 932
• Parties: WALTER TRIMBLE, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

71 P. 932

8 Ariz. 273

WALTER TRIMBLE, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 166

Supreme Court of Arizona

March 20, 1903

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Graham. F. M. Doan, Judge. Affirmed.

The facts are stated in the opinion.

W. C McFarland, for Appellant.

The court erred in that part of its charge in which he told the jury that complaints by prosecutrix after she got away from and out of control of defendant were to be taken into consideration as corroboration of prosecutrix. State v Anderson, 6 Idaho, 706, 59 P. 180; People v. Lambert 120 Cal. 170, 52 P. 309.

There was no evidence introduced in the cause that the prosecutrix made complaint at or immediately after the date of the alleged offense. According to her own testimony, it was about a year afterward. According to the testimony of another witness, it was not until about seven months after that complaint was made, though the evidence in the cause shows that the prosecutrix knew that one Benevedas was at the time of the alleged offense occupying an adjoining room; that she saw Benevedas a few minutes after the time she testifies the offense was committed; that she saw the constable in the room a very short time after she testifies the assault was made that she attended the public schools at Clifton for about two weeks after the date of the alleged offense, and rode in a wagon from Clifton to Coronado, spent the evening at Coronado with a gang of bridge carpenters, stopped in Duncan for an hour or more, where appellant bought supplies, and a month with her father at El Paso, and some two weeks at Duncan after their return, appellant being absent during this time looking for work. With all these opportunities to make complaint, a large part of the time out of the control and influence of appellant and his wife, it never occurred to her to complain of this outrage until the evening of July 19th, nearly seven months after the date the offense is alleged to have been committed. These facts and circumstances conclusively show that prosecutrix was frequently out of the influence and control of appellant and his wife, and had abundant opportunity to complain to people who would have offered her complete protection, during the seven months that intervened between the date of the alleged offense and the time she made complaint to Mrs. Phillips in Duncan. That she failed to avail herself of any of these opportunities conclusively shows that it was not fear of the defendant and his wife or want of opportunity that caused her to delay for this great length of time in making complaint of the offense charged. People v. Benson, 6 Cal. 221, 65 Am. Dec. 506; People v. Hamilton, 46 Cal. 540; People v. Brown, 47 Cal. 447; People v. Ardaga, 51 Cal. 371; People v. Hulse, 3 Hill, 309; Matthews v. State, 19 Neb. 330, 27 N.W. 234; Curby v. Territory, 4 Ariz. 371, 42 P. 953; Tway v. State, 7 Wyo. 74, 50 P. 188; State v. Baker, 6 Idaho 496, 56 P. 81.

E. W. Wells, Attorney-General, for Respondent.

The jury may convict of the crime of rape on the uncorroborated testimony of prosecutrix. Curby v. Territory, 4 Ariz. 371, 42 P. 953; People v. Wessel, 98 Cal. 352, 33 P. 216; Tway v. State, 7 Wyo. 74, 50 P. 188; State v. Anderson, 6 Idaho 706, 59 P. 180.

In considering the charge of the court to the jury, the whole charge taken together should be considered, rather than isolated sentences. United States v. Tenney, 2 Ariz. 29, 127, 8 P. 295, 11 P. 472; People v. Clark, 84 Cal. 573, 24 P. 313.

Complaint made by the prosecutrix after commission of the crime and particular marks of violence and other indications, and the facts of the offense, are competent evidence confirmatory of her testimony. 2 Bishop on Criminal Procedure, par. 963.

And the substance of what she said, or the declarations made by her after the commission of the offense, may be given in evidence to corroborate her testimony. The remoteness of such statement and cause therefor are circumstances for the jury to consider in weighing the testimony of prosecutrix. McComb v. State, 8 Ohio St. 643; Johnson v. State, 17 Ohio 593; Loughlin v. State, 18 Ohio 99, 51 Am. Dec. 444; State v. DeWolf, 8 Conn. 93, 20 Am. Dec. 90; Pleasant v. State, 15 Ark. 624.

OPINION

DAVIS, J.

-- The appellant, Walter Trimble, was tried at the October term, 1902, of the district court of Graham County, upon an indictment charging him with the crime of rape. He was convicted and sentenced to imprisonment for life in the territorial prison. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

Three of the trial court's instructions are objected to by the appellant as containing reversible error, the first complained of being as follows: "If you find from the evidence that the prosecuting witness was intimidated by threats of the defendant and his wife from making complaint while she was under their control, and made complaint of the alleged outrage at her first opportunity after getting away from or out of the control of the defendant and his wife, you may consider that fact as a circumstance tending to corroborate the testimony of the witness." It is claimed that by this instruction the court misstated the effect of evidence of the character referred to, and virtually said to the jury that the prosecutrix might be corroborated by her own statements, while the only legal purpose which such evidence could really serve would be to explain her failure to make an immediate complaint, and rebut any unfavorable inference which might otherwise be drawn from her silence. Even were counsel for appellant correct in his criticism, it is difficult to see the importance of the distinction drawn, since rape is not one of the offenses which requires corroborative evidence, and a conviction thereof may be had upon the testimony of the victim alone. Curby v. Territory, 4 Ariz. 371, 42 P. 953. But complaint of the outrage by the prosecutrix at the earliest opportunity has frequently been denominated by the courts as a circumstance corroborative of her testimony. Pefferling v. State, 40 Tex. 486; State v. Niles, 47 Vt. 82; Baccio v. People, 41 N.Y. 265; Thompson v. State, 38 Ind. 39; Laughlin v. State, 18 Ohio 99, 51 Am. Dec. 444; State v. Mulkern, 85 Me. 106, 26 A. 1017; State v. Sargent, 32 Or. 110, 49 P. 889; State v. Imlay, 22 Utah 156, 61 P. 557. The natural instinct of a female thus outraged and injured prompts her to disclose the occurrence at the earliest opportunity to some relative or friend who has interest in her welfare; and the absence of such a disclosure tends to discredit her as a witness, and may raise an inference against the truth of the charge. To avoid such discredit and inference, it is always competent for the prosecution to show, as a part of its case, that complaint was made recently after the commission of the outrage, and this fact is treated as a circumstance corroborative of the complainant's testimony. State v. Neel, 21 Utah 151, 60 P. 510. But mere lapse of time between the perpetration of the act and the complaint is not the test of its admissibility. As said by Church, C.J., in a New York case, "Any considerable delay on the part of the prosecutrix to make complaint of the outrage is a circumstance of more or less weight, depending on surrounding circumstances. There may be many reasons why a failure to make immediate or instant outcry should not discredit the witness. A want of suitable opportunity, or fear, may sometimes excuse or justify a delay. There can be no universal law on the subject." Higgins v. People, 58 N.Y. 377. In connection with the instruction above quoted, the court below also said to the jury: "The failure to make a complaint of an offense of this character within a reasonable time after the commission or alleged commission of such offense can be considered by the jury as a circumstance tending to discredit the testimony of the prosecuting witness, unless the jury believe from the evidence that such witness was intimidated by threats from making such disclosure, or was so situated during such time that she had not an opportunity to do so." Considering the whole instruction given upon this point, and its applicability to the evidence, we do not think the jury could have been materially misled by the court's statement of the law.

The following instruction was given by the court: "In this case the prosecution relies for a conviction upon the testimony of Lydia Sparks, the prosecuting witness, and no other witness was called by the territory to testify directly to the time and place or circumstances of the alleged offense; and you are instructed, in cases where the territory relies upon the uncorroborated testimony of the prosecutrix unsustained by other evidence, or by facts and circumstances corroborating it, that you should view such testimony with great caution, and it is the duty of the court to warn the jury of the danger of conviction on such testimony. You are further instructed that in considering her testimony you may take into consideration the facts and circumstances surrounding the place...