APPEAL from a judgment of the Superior Court of the County of Navajo. John P. Clark, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Appellee.
Mr. Guy Axline, for Appellant.
[57 Ariz. 416] LOCKWOOD, C.J.
Marion Pollock, defendant, was informed against for the crime of statutory rape upon one X, whom we shall hereafter call the prosecutrix. The case was tried to a jury, which returned [57 Ariz. 417] a verdict reading: "We the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, do find: the defendant, Marion Pollock, guilty."
At the close of the state's case, and again at the close of the whole case, defendant moved for an instructed verdict of not guilty, and timely motions were
made for a new trial and in arrest of judgment. All these motions were denied and sentence pronounced, whereupon this appeal was taken. There are eight assignments of error, which we will consider in accordance with the legal questions raised thereby.
The first question is as to the sufficiency of the evidence to sustain the verdict. The prosecutrix testified directly and positively to the completed crime. Defendant denied that he had either attempted or completed the offense charged. If this were all, the question would undoubtedly be one for the jury, for in Arizona in a case of this kind a conviction may be had upon the uncorroborated testimony of the prosecutrix unless her story is physically impossible, or so incredible that no reasonable man could believe it. Reidehead v. State, 31 Ariz. 70, 250 P. 366; Zavala v. State, 39 Ariz. 123, 4 P.2d 390.
It is the claim of defendant that the evidence brings this case within these exceptions to the general rule. He bases this contention primarily upon the testimony of the physician who examined the prosecutrix some two hours after the offense was alleged to have been committed, urging that this testimony, which was uncontradicted, shows that the story of the prosecutrix was physically impossible. We think the testimony of the doctor does not sustain the claim. Its substance was that the condition of the prosecutrix at the time of the examination was such that he did not think the crime of rape could have been completed upon her two hours before. He defined rape, however, [57 Ariz. 418] as meaning a complete penetration of, and emission in, the vagina, and his conclusion was based upon this definition. This, of course, is not the legal definition of rape. It has been repeatedly held that the slightest penetration of the vulva is sufficient to complete the offense and that emission is not necessary. Sec. 43-4901, Ariz. Code 1939; State v. Wisdom, 122 Or. 148, 257 P. 826; Swearingen v. State, 31 Okl.Cr. 66, 237 P. 135; People v. Crowley, 102 N.Y. 234, 6 N.E. 384.
The testimony of the prosecutrix sets up a state of facts which, if true, makes it entirely possible that the crime was completed and that her condition as described by the doctor was not necessarily incompatible therewith. There was also certain evidence corroborating the prosecutrix.
On the whole case, we are of the opinion that the question of the guilt or innocence of defendant presented a jury question and that the objection that the evidence does not sustain the verdict must be overruled.
The next contention is that the court erred in not giving the following instruction asked by defendant:
"Gentlemen of the Jury, when a crime is divided into degrees, or where lesser offenses are included in the offense charged in the Information, it is your duty to resolve any reasonable doubt that may exist in your minds upon the evidence in favor of the defendant, and in favor of the lesser degree of the crime, and the lesser offense; and upon the whole case, to resolve any reasonable doubt ...