Appeal from Superior Court, Maricopa County; James A. Walsh, Judge.
Andrew N. Romo, Joe N. Romo, Reynaldo J. Abril, and Albert Barbo Cruz, Jr., were convicted of forcible rape, and they appeal.
Robert R. Weaver, of Phoenix, for appellants Joe N. and Andrew N. Romo.
Greg Garcia, of Phoenix, for appellant Reynaldo J. Abril.
John L. Sullivan, Atty. Gen., John W. Rood, Asst. Atty. Gen., and Francis J. Donofrio, Co. Atty., and Warren L. McCarthy, Deputy Co. Atty., both of Phoenix, for appellee.
La Prade, Justice. Stanford, C. J., and Udall, J., concur.
La Prade, Justice.
[66 Ariz. 177] Appellants Andrew N. Romo, Joe N. Romo (brothers) and Albert Barbo Cruz, Jr., by information, were jointly charged with the crime of forcible rape, a felony, upon one --- (name omitted). By a separate information, appellant Reynaldo J. Abril was charged with the same offense growing out of the identical occurrence from which the charge originated against the other appellants. By stipulation in the lower court the two cases were consolidated for trial and the several defendants were tried jointly. From judgments of conviction they have appealed. We will hereafter refer to appellants as defendants.
The evidence shows that at about midnight on June 15, 1946, the complaining witness ---, with an escort and a party of men and women, went to the Nachos Cafe on South Central Avenue in the City of Phoenix, for the purpose of dining. After entering the cafe the complaining witness felt ill and went outside with one of the girls in the party. Shortly thereafter two of the men in the party came out to the automobile where the complaining witness was seated. At this time for a reason not apparent the two men, one by the name of Davenport, became involved in a vicious fight with some or all of the defendants. Davenport was knocked to the ground. When the complaining witness went to assist him she was struck on the jaw with a pair of brass knuckles by defendant Cruz and knocked unconscious. Other members belonging to the party of the complaining witness also became involved in the fight. For some reason not satisfactorily explained all members of this party retreated into the cafe. During the excitement the complaining witness was left lying on the sidewalk. Some of the defendants picked her up and loaded her into an automobile which they had present in front of the premises. She was driven away by defendant Abril accompanied by the two Romo boys. They drove to a secluded spot somewhere off of South 15th Avenue. Defendant Cruz and a Mexican boy by the name of Eulalio Villaverde followed the other defendants in the car of Villaverde, who was called as a witness. He testified that he did not know that the complaining witness was in the car with the other boys; that he was present when the fight started; that he avoided the fight and walked away one block and watched from a distance; that at the request of Cruz he followed the other car; that as they approached the other car it [66 Ariz. 178] stopped; that when he pulled up someone in the car yelled "Stop! Look what we got here"; and that Cruz got out of the car, joined the others, and that he drove away. With reference to this occurrence in overtaking the first car, defendant Cruz, in a statement which he later gave to the county attorney and which was admitted in evidence, stated that he addressed the occupants of the first car as follows:
"A. I told him, 'Why didn't you stop at the hospital?' He said, 'Are you crazy?' And so they say, 'Look what we got here in the back.' I looked down and I saw the white woman, and Nito was in back with her and Nito's brother was with Reynaldo in the front seat.
"Q. All right. Then what happened? A. Oh, we started --- her.
"Q. Who --- her first? A. Nito."
The complaining witness was found next morning lying on a bed in the home of a Mexican family, whom she did not know, nor did she know how she got there. She stated that she was unconscious at all times after she was hit except for a brief moment when she saw a streetlight at a time when she was walking in the street. At the time she was awakened she was in a state of nervous prostration; her shoes and stockings were gone and her dress was torn and very dirty. One side of her face, eye, and neck was badly bruised and discolored and she was bleeding from the mouth. She was taken to a hospital for examination and treatment. The doctor examined her vagina and took smears of the vaginal mucosa and urethra.
One of the glass slides upon which the smears were taken was initialed "U" and the other was initialed "V." The two
slides were handed to an assisting nurse who wrapped them in sterile gauze and took them to the hospital laboratory. To the slides there was attached a requisition for a microscopic examination to determine whether or not spermatozoa were present. The nurse who delivered the slides to the laboratory testified that she spoke to the medical technician in the laboratory, calling her attention to the slides, and that the technician saw her lay them down. The technician testified that she did not recall the conversation testified to by the nurse; that the first time she saw the slides they were in the laboratory; that the requisition concerned one ---; that she was requested to make an examination promptly and to submit her report; that the report of the examination was submitted within a few hours after the delivery of the slides to the laboratory; and that she personally stained the slides, using both a Wright and a Gram stain. This technician was called as an expert witness. Her qualifications disclosed that she was graduated from the University of Kansas with an A. B. degree, having majored in bacteriology. Upon graduating she took an additional year's training as a technician at the University of Kansas Hospital in Kansas [66 Ariz. 179] City, Kansas. She had been continuously employed as a medical technician for nine years prior to making the examination in this case. She is registered with the technicians' society that is associated with the American Clinical Pathologists. She testified that she performed routine laboratory tests, chemical, bacteriological, and serological, and that it was a common occurrence for her to examine smears to determine the presence of spermatozoa. She further testified with reference to the slides as follows:
"A. The first group of slides marked 'urethral' we found many degenerative forms, that is forms of sperm cells that were degenerated but we found a few intact, complete with their tails on the smear. On the other one we also found intact sperm cells."
The prosecuting witness did not know whether or not anyone had had sexual intercourse with her after she was struck. She testified that she had been divorced from her husband for more than one year prior to the occurrence, and that since her divorce she had not voluntarily had sexual intercourse with any person.
A police officer testified that the two Romo boys and Cruz admitted that they had sexual intercourse with the prosecutrix at the time and place referred to by the witness Villaverde. All three of these defendants in their statements to the police officer denied that they had used any force or violence to coerce the prosecutrix to submit to the acts of sexual intercourse. They said that she was entirely conscious and readily submitted. Later, complete statements were taken from defendants Cruz, Abril, and Andrew Romo. The statements were secured by the county attorney in the presence of several officers and two official court reporters, who took shorthand notes and later transcribed them. These statements were offered and read to the jury. In all of these statements defendants readily admitted having had sexual intercourse with the prosecutrix in the rear seat of the car at a time when all four of them were present and in the presence of each other. Each one endeavored to exculpate himself by testifying that the prosecutrix was at all times conscious, readily submitted, and even asked them to perform the act.
Defendants objected to the competency of the testimony of the medical technician upon the ground that she should not be permitted to give opinion evidence as to her interpretation of the slides when the slides were not produced in court and made available to the defendants. Their objection was overruled. They also objected to testimony of the medical technician and contended that she should not be permitted to testify upon the ground that the slides that she examined had not been sufficiently identified as being the identical smears taken from the body of the prosecutrix. Their objection and the adverse ruling of the ...