APPEAL from a judgment of the Superior Court of the County of Maricopa. E. W. McFarland, Judge. Judgment affirmed.
Mr. Marshall W. Haislip. for Appellant.
Mr. Joe Conway, Attorney General, Mr. W. E. Polley, Assistant Attorney General, Mr. Richard F. Harless, County Attorney, and Mr. L. Alton Riggs, Assistant County Attorney, for Respondent.
[55 Ariz. 14] McALISTER, J.
The defendant, Oscar Taylor, was convicted of statutory rape, alleged to have been committed on or about November 13, 1937, upon the person of one Barbara Hill, and from the judgment and order denying his motion for a new trial he appeals.
Appellant assigns a number of errors but discusses them under four propositions of law, the first and principal one being that the court admitted, over his objections, evidence of acts of sexual intercourse appellant had with other girls than the prosecuting witness, not in her presence. In order that this contention may be intelligently passed upon, it is necessary that the facts bearing thereon be stated. On November 13, 1937, about 7:00 P. M., Barbara Hill, a girl fourteen years of age and living in the 1400 block on east Adams Street, Phoenix, was at the home of a friend, Grace Miller, two blocks east of hers on Adams Street, when appellant came there in a 1937 Dodge sedan. She testified that she, Grace and appellant
got into the front seat of the car and drove south on 16th Street to the river where the car was brought to stop; that thereupon Grace told Barbara, who sat in the middle, that Oscar would give her a dollar if she would have intercourse with him; that she consented and then she and appellant got into the back seat of the car and accomplished the act; that while this was being done Grace Miller remained in the front seat, and when they had completed the act Grace got into the back seat with appellant and permitted him to go through the same performance with her, during which time Barbara sat in the front seat; that the appellant gave them each a dollar and drove back to 16th and Washington Streets where they left the car and went to Grace's home; that she said nothing to her mother about this occurrence. She stated further that she had been to the river with the appellant on two occasions [55 Ariz. 15] prior to this, that Grace Miller was with her on the first of them and that they went through the same procedure as on November 13th, but that on the second trip she and the appellant went alone to the river, this time to 24th Street, where the second act of sexual intercourse between them took place. He gave her a dollar on each of these occasions.
The latter part of November Barbara ran away from home for a few days and on December 6th, following her return, Miss Lydia Riffle, deputy county probation officer, took her to the county clinic and had her examined by a physician who reported that she had had sexual intercourse with someone but she would not then disclose the person's name. A complaint charging her with being a delinquent was then filed by Miss Riffle and she was placed in the Phoenix Florence Crittenden Home where she remained until December, 1938, when she was transferred to the Convent of the Good Shepherd at which she was staying at the time of this trial. It appears that on April 13, 1938, Miss Riffle learned that appellant was the person with whom she had had sexual relations and immediately thereafter Albert K. King, a deputy probation officer, and Miss Riffle, went to the home of th appellant and brought him to the county attorney's office where he was identified by Barbara Hill, Dorothy Smith and one other girl. At that time he signed a statement prepared by Melbourne W. Hill, deputy county attorney, in which he admitted having had sexual intercourse with Barbara Hill and Grace Miller about the middle of November, 1937, and upon two prior occasions.
Grace Miller stated practically the same facts as did Barbara Hill relative to the latter's first and third trip to the river with appellant, but as she and Barbara left him at the street car track upon their return from the river on November 13th he made some remarks [55 Ariz. 16] on the general subject of sexual intercourse, and in reply to a question as to whether she had a conversation of this character with him at that time, she answered:
"Bill Taylor told me when he wanted to go, out, he said he didn't have to run around very much, he always knew where he could go."
She was permitted over appellant's objection to give the following testimony: (1) That she was introduced to appellant by Florence King in front of the latter's home between 14th and 15th Streets on east Monroe Street, and that she, Florence and appellant went that afternoon to the river on 16th Street and that appellant had sexual intercourse with Florence in the back seat of the car and then with her in the same place; that he gave each of them money to buy a dress; (2) that on another occasion appellant drove up to 16th and Washington Streets where she and Dorothy Smith were and that after introducing Dorothy to him they got into the car with him and went to 16th Street and the river where he had sexual relations with both of them in the back seat of the car, one girl sitting in the front seat while he and the other went through the act; (3) that early in 1938 at her home in Phoenix she introduced Lola Ames to appellant and that they got into the car with him and drove on 16th Street to the river where appellant had sexual intercourse with Lola in the car but not with her; (4) that in March, 1938, she had a conversation with appellant in front of her home in which he stated that he had Esther Jackson down at the river bed the night before and had sexual intercourse with her but did not have very good success and wanted to try it again; that he asked her if she would try to get Esther out for him and she told him "no"; that he nearly always carried wine with him and offered it to the girls.
[55 Ariz. 17] Over appellant's objection, Dorothy Smith testified to practically the same facts concerning her relations with him as did Grace Miller, except that she stated in addition that appellant and ...