Prejudicial error having been committed herein, the case is reversed and remanded for a new trial.
Robert R. Weaver and Darrell R. Parker, of Phoenix, attorneys for appellant.
Fred O. Wilson, Attorney General, Chas. Rogers, Assistant Attorney General, Maurice Barth, Assistant Attorney General, attorneys for appellee.
Stanford, Justice. La Prade, C. J., and Udall, Phelps, and De Concini, JJ., concurring.
[69 Ariz. 189] Appellant was informed against by the county attorney of Maricopa county for statutory rape of his daughter. For the protection of the daughter's name we will term her as the prosecutrix. We will also term the appellant, the defendant, and the State of Arizona, the state.
The prosecutrix was at the time of the alleged offense fifteen years of age. The information stated the offense was committed on July 15, 1948.
The mother of the prosecutrix died when she was a small child and for many years she had resided with her father. The prosecutrix testified at the trial that the first act of sexual intercourse took place on February 16, 1948, and between that date and July 15, of that year, she and her father had sexual intercourse from one to three times a week. She made no complaint until July 23 when she complained to Joe James, a member of the Phoenix police department, and his wife Audrey James.
Prosecutrix testified that her failure to make an earlier complaint was because her father had threatened to do her injury in event she should tell anyone.
The state presented two witnesses, the prosecutrix and the county medical examiner, Dr. O. C. West testified that he examined the prosecutrix on the afternoon of July 23rd; that in making a vaginal examination he discovered that the vaginal canal was relaxed. He testified that there were no contusions or bruises and that the hymen of the prosecutrix had been ruptured a considerable time previously.
The prosecutrix testified she had never had sexual intercourse with any other person than her father. The defendant not only denied the accusation, but offered proof that motive for making the false charge was that the daughter had rebelled [69 Ariz. 190] at his discipline and especially in connection with playing hooky and going to places socially which were disapproved of by the father
A verdict of guilty was returned by the jury. From said verdict, and from the order of the court denying a motion for new trial, and the sentence and judgment, the ...