JOSE M. ALVARADO, Appellant,
STATE OF ARIZONA, Appellee
APPEAL from a judgment of the Superior Court of the County of Navajo. W. E. Ferguson, Judge.
Judgment reversed and remanded for a new trial.
Mr. Guy Axline, for Appellant.
Mr. John L. Sullivan, Attorney General and Mr. Earl Anderson, Assistant Attorney General, for Appellee.
LaPrade, J. Stanford, C. J., and Morgan, J. concur.
[63 Ariz. 512] The appellant was convicted of the crime of statutory rape alleged to have been committed upon his wife's sister, a girl of fourteen years of age. The testimony of the prosecutrix showed rape by violence with resistance. At the time of the alleged offense, the girl was living in the home of the appellant, hereinafter referred to as the defendant. This home consisted of a small, four-room dwelling in Winslow, Arizona. The prosecutrix testified that early one morning the defendant came to her bed where she was sleeping with two young daughters of defendant, aged eight and four years; that defendant came from his own bed in the next room where he left his wife; and that upon getting into bed with her he accomplished the act of [63 Ariz. 513] sexual intercourse by force and violence, against her will and without her consent. In this behalf, the verbatim testimony of the prosecutrix is as follows:
"Q. You tried to prevent him from doing it, did you? A. Yes.
"Q. What did you do to prevent him from doing what you say he did to you? . . . A. I kicked him because he held me by my hands. . . .
"Q. Did you call out for your sister or make any outcry when you say this was all taking place? A. No, because he held my hands and my mouth. . . .
"Q. You say the defendant was holding your hands and your mouth during the
alleged commission of this act you have complained of, is that correct? A. Yes.
"Q. He wasn't holding your feet at the same time? A. No, because I was kicking him.
"Q. All the time? A. Yes. . . .
"Q. Now, while you were kicking in bed didn't you kick the other children who were in bed? A. No, because they were quite a distance in the same bed with me. . . .
"Q. How long would you say the defendant was there fighting with you on this bed. A. Just a little while."
Prosecutrix further testified that the children did not awaken; that she went back to sleep, got up the next morning about eight o'clock and went to school; that she did not tell her sister, defendant's wife, about the occurrence until some seventeen days later. The girl contradicted herself in that she stated that the occurrence referred to was the first and only time that she had had intercourse with the defendant, and later she testified that she had had intercourse with him on another occasion.
By way of corroboration the State showed: First, that the defendant wrote, in English, and sent a note wrapped in a one-dollar bill to the prosecutrix. This note was written prior to the alleged offense and read as follows:
[63 Ariz. 514] "Dear little Sweet pacis hullo pleaes Don't let me down I am fallen in Love for you and you know how my heart fell look like sombody put some nif in my heart and I want now what you go to ...