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.
[55 Ariz. 31] 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. [55 Ariz. 32] 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. [55 Ariz. 33] 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 ...