A. W. KEEFE, Appellant,
STATE OF ARIZONA, Respondent
APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment reversed and cause remanded with instructions.
Mr. John J. McCullough, for Appellant.
Mr. Joe Conway, Attorney General, Mr. W. E. Polley and Mr. J. M. Johnson, his Assistants, and Mr. Frank E. Thomas, County Attorney of Cochise County, for Respondent.
[50 Ariz. 294] LOCKWOOD, J.
A. W. Keefe, hereinafter called defendant, was convicted of a violation of section 4650, Rev. Code 1928. The offense was alleged to have been committed upon a four-year old girl, and the only evidence submitted to the jury bearing directly on the charge was that of the father and mother of the child, who testified as to statements made to them by their daughter and her six-year old brother several days [50 Ariz. 295] after it is claimed the offense had been committed. When this testimony was offered, counsel for the defendant objected thereto on the ground that it was hearsay, and, after the State had rested, moved for an instructed verdict of not guilty on the ground that there was no relevant testimony of the commission of the crime charged.
The sole question for our consideration is whether or not the testimony of the father and mother was properly admitted. If it was, there is ample evidence to sustain the conviction. If it was not, there is no evidence in the record on which a verdict of guilty could legally be based. The mother of the child testified, in substance, that on a certain Saturday she discovered the little girl and her brother, a boy of about six years, engaged in immoral conduct, and that, when she reproved them, the little girl told her that defendant did such things to her all the time. She interrogated the child further as to defendant's conduct and drew from her a fairly comprehensive and detailed account thereof. The little boy confirmed his sister's statements, saying that he had witnessed such acts. On the father's return from his work that evening, the mother told him what the children had said, and he questioned them, securing substantially the same information as that given to the mother. After the father and mother had testified to these conversations with the children, over the objection of counsel for defendant, the little boy was offered as a witness by the State. Counsel for defendant objected on the ground that he was not competent as a witness under the provisions of section 4412, subdivision 2, and section 5176, Revised Code 1928, which read as follows:
"§ 4412. The following persons cannot be witnesses in a civil action: ...
"2. Children under the years of age, who appear incapable of receiving just impressions of the facts [50 Ariz. 296] respecting which they are examined, or of relating them truly."
"§ 5176. Civil rules applicable to determine competency. The laws for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings, except as otherwise provided in this code."
The trial court permitted the child to be examined on his voir dire, and then stated he did not think the child was sufficiently qualified to testify under oath, but permitted him to detail to the jury, without being sworn, what he claimed he had witnessed between his sister and defendant, and, after that statement had been made, came to the conclusion that it was error to admit it and directed the jury to disregard it.
The crime charged is of such a nature that every right-minded man or woman views it with horror and aversion, and especially when committed by an adult upon the person of a child. But for this very reason justice requires particular care that one charged with such a crime should not be convicted thereof on insufficient or improper evidence. A great judge once said in regard to rape, that such a charge was one "easy to make, difficult to prove and more difficult to disprove, though the accused be never so innocent." (1778) 1 Hale P.C. 633. Much more is this true of such a crime as the one charged herein. For this reason we must scrutinize most carefully the evidence on which the conviction in this case was based to see whether it was legally admissible to prove the ultimate fact in issue.
The objection made by defendant's counsel to its introduction is that it was hearsay. Hearsay evidence may be illustrated thus: When the ultimate fact in issue is whether A has done a certain act, C offers to testify that he heard B say that he, B, saw the act committed by A. The general ...