On Rehearing February 10, 1947.
Appeal from Superior Court, Yuma County; Henry C. Kelly, Judge.
Edward Pudman was convicted of child stealing, and he appeals.
Judgment reversed, and cause remanded for a new trial.
Terrence A. Carson, of Phoenix, for appellant.
John L. Sullivan, Atty. Gen., and John W. Rood, Chief Asst. to Atty Gen., of Phoenix, for appellee.
Morgan, Judge. Stanford, C. J., concurs. La Prade, Justice (dissenting).
[65 Ariz. 198] Defendant was charged with a violation of section 43-3202, A.C.A.1939, commonly referred to as the child stealing statute. He was tried before a jury. At the close of the State's case, a motion for directed verdict on behalf of defendant on the ground of insufficiency of the evidence was made and denied. Defendant offered no evidence. The case was thereupon, after argument and instructions, submitted to the jury which found a verdict of guilty. Motion for new trial was overruled, judgment of conviction entered and sentence imposed, fixing the penalty at confinement in the State Prison for not less than three nor more than five years.
Defendant, on this appeal, for grounds of reversal urges: (1) The insufficiency of the evidence to justify a conviction; (2) prejudicial remarks of the county attorney in argument to the jury; (3) admission of hearsay evidence; and (4) the giving of wrongful and prejudicial instructions.
The facts proved by the state and upon which the verdict and judgment were based, may be stated as follows: The child involved was a little girl of six years, attending the first grade of a Yuma school on Second Avenue, and living with her parents at the Padre Garcia apartments. On the afternoon of January 25, 1946, she returned home from school shortly after 2 o'clock. About 2:30 p. m. she accompanied her father down town, where he bought her an ice cream cone at the drugstore at the corner of Third and Main Streets. The father then instructed the child to go home, and to cross the street by the music store, which is about one and two-thirds of a block from the apartment. The father [65 Ariz. 199] left the child who proceeded to comply with his instructions. When she got as far as the music store, she saw a man (the defendant) in a checkered shirt, who told her to come with him and "he would give me a nickel."
She accompanied the defendant across the street to the "Chinaman's" and down to the restaurant called the Cab Hop. At or near that point the defendant asked the child if she wanted to go over to the oil tanks, to which she replied "No". Her testimony is not clear, but apparently they walked near an alley which led to her home, and she told the defendant where she lived. The defendant, however, did not let her go home then. He took the child down past the depot and up to or through some bushes. This appears to be on a path in a vacant lot back of Sanguinetti's. After crossing this lot, they reached the laundry, about a block from the child's home, where he gave her a nickel and told her to go on up town. She went home.
When the little girl reached home, she met a Mrs. Bagby who lived at the Padre Garcia apartments. Mrs. Bagby had seen the child that afternoon when she came home from school and said she was perfectly normal. She saw her again around 3:00. At that time neither her father nor her mother was at home, and Mrs. Bagby testified that the little girl was crying "and was very frightened; she was sobbing." Over objections that any statements made by the child to Mrs. Bagby would be hearsay, which were overruled by the court, Mrs. Bagby gave the following statement:
"She told me that coming home she had gone down with her father to town to get an ice cream cone and that coming home a man had offered her a nickel if she would go for a walk with him and that she -- I asked her why she didn't come on home instead of going with the man and she made the reply
that the man had held her hand so that she couldn't come home, and that is about all."
The father returned home about 3:15 o'clock. He saw his daughter in Mrs. Bagby's house, and testified that she was in a nervous condition, "shaking and the palms of her hands were wet with sweat. She was not crying, however." The court overruled objections that anything the child said to the father at that time would be hearsay, and the father further testified:
"I asked my daughter where the man had stopped her and she said 'Daddy, I was standing on the corner in front of the music store when this man asked me if I wanted an ice cream cone.' I asked her if she had finished her cone, and she said No, she still had part of it in her hand. I said to her 'Why did you go with this man? Your mother and I have told you not to do those things' and she said he took her by the hand and 'we crossed the street again' which would be 4th Street on the same corner where we lived, and from her reconstruction [65 Ariz. 200] of the route he had taken her, they went down on the corner of Maiden Lane to the Cab Hop and she said 'We crossed the street again.' That they had crossed 4th Street again and to the left side of it and continued on down to Gila Street. I said 'Ann, what did you do there?' and she said 'The man asked me if I wanted to go down there and see those gasoline tanks' and then he turned right and went approximately 50 yards down Gila Street, and from that point she could look between two brick apartment buildings and see where we lived --
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"I asked my daughter why she didn't go home at this point. She said 'Daddy, I was scared.' I said 'Were you crying?' She said 'I was not crying, but big tears was coming down my cheeks.' I said 'Then what did you do?' and she said 'We turned and went back in this direction' which was towards First Street on Gila Street."
There were no visible marks on the little girl indicating she might have been harmed, and both she and her father testified she was not harmed nor injured in any manner. All the streets traversed with the exception of the trail through the bushes across the vacant lot mentioned were public thoroughfares in the city of Yuma. The trail was commonly used. The daughter told her father she was not stopped nor molested in any way in the bushes. The defendant was a stranger to the child and her parents.
The chief of police, Harold B. Breech, testified to the following conversations with the defendant:
"A. I asked him if he had picked up a little girl on Main Street, and he thought a little while and said that he had.
"Q. What else was said? A. He said he thought it was all right to do that.
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"A. I asked him if he thought it was all right to take a little girl like that and take her off the path to her home, and he said that where he ...