APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge.
Mr. Geo. F. Senner, and Mr. Sam Lazovich, for Appellant.
Mr. John L. Sullivan, Attorney General, Mr. Earl Anderson, Assistant Attorney General, Mr. Frank E. Tippett, County Attorney, Mr. D. E. Rienhardt, Deputy County Attorney, for Appellee.
Stanford, C. J. Morgan, J., concurs. LaPrade, J. (dissenting).
Stanford, C. J.
This is a case of statutory rape alleged to have been committed by the stepfather on his stepdaughter who was eight years of age, the offense claimed to have been committed at the home of the parents in Globe, Arizona, on the 28th day of August, 1944. The jury brought in a [63 Ariz. 224] verdict of guilty at the trial in the superior court, and from the judgment rendered thereon, this appeal is taken.
We will hereafter style the appellant as the defendant and the State of Arizona as the state.
The defendant submits four assignments of error committed by the trial court, the first one being that the verdict is not justified, and is contrary to the evidence produced by the state at the trial. The defendant contends that when a conviction is based on the uncorroborated testimony of the prosecutrix, her evidence must be such as to show reasonable physical possibility that the alleged crime could have been committed. Supporting that he cites Reidhead v. State, 31 Ariz. 70, 250 P. 366. That is a case of where the prosecutrix was of age and resisted the commission of the offense. Defendant quotes from said case:
"And when a verdict of guilty is returned on the evidence of the prosecutrix alone, her story must be reasonable, consistent, and not inherently impossible or improbable to a degree that it would make it incredible to the ordinary man."
Defendant sets forth that it would be impossible for the offense to have been committed under the testimony given by the prosecutrix inasmuch as she stated that she was sitting on the lavatory, meaning the toilet seat, and that he was in a standing position when he committed the alleged offense, showing a physical impossibility that the offense could have been committed, since the lavatory seat was only eighteen inches from the bottom of the floor and the defendant was six feet tall.
Witness John Lundgren, for the defendant, testified on cross-examination:
"Q. What kind of a tank is that toilet furnished with, is it up on the wall -- does the water come in from the top? A. From the top.
[63 Ariz. 225] "Q. Is it a low down tank or one on the wall? A. On the wall.
"Q. Immediately behind the water bowl? A. Yes sir.
"Q. Did you measure the height of the top of that tank? A. No, I didn't.
"Q. How high up is that off the floor, approximately? A. Oh, I judge around, I don't know, probably three feet, I don't know.
"Q. Coming just about to your belt line? A. Probably would, yes."
The child in question in that respect testified as follows:
"Q. Now, your daddy had you in the lavatory? A. Yes.
"Q. What did he do? A. He put his person into me.
"Q. He did? A. Yes, man.
"Q. Where were you? A. He had me sit up on the top of the lavatory.
"Q. Was he standing up at that time? A. Yes, man, he was standing up.
"Q. Were you sitting down or standing up? A. Sitting down.
"Q. You know your daddy was standing up? A. Yes man.
"Q. You are not mistaken in that? A. No, man.
"Q. He took his person out? A. Yes, man.
"Q. What did he do in regard to your clothing at that time?
"The Court: Did he take off your clothing at that time? A. Yes, man.
"Mr. Senner: Did he take them all off? A. No, man.
"Q. What did he take off? A. Just my underwear.
"Q. Just your underwear? A. Yes, man.
"Q. You mean your panties or all your underwear? A. Just my panties.
"Q. Then your mother was there? A. Yes, man.
"Q. Did you holler, call your mother, I mean? A. Yes, man.
[63 Ariz. 226] "Q. What did your mother say? A. She tried to get in but she couldn't, and she told my grandmother -- I mean told my sister, to go and tell my grandmother.
Q. Your sister went for her? A. Yes, man.
"Q. Did your grandmother come there? A. ...