Rehearing Denied April 30, 1951.
V. L. Hash and Virginia Hash, of Phoenix, for appellant.
Fred O. Wilson, Atty. Gen., Maurice Barth, Charles Rogers, Asst. Attys. Gen., for appellee.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.
Udall, Chief Justice.
[72 Ariz. 18] Appellant, Thomas D. Bradley, hereafter called defendant, was charged by information with the crime of rape, a felony, alleged to have been accomplished by force and violence upon the person of (name omitted), hereafter called prosecutrix. He was tried before a jury which found him guilty. After denial of his motion for a new trial, judgment was entered and a sentence of five to seven years in the state penitentiary was imposed. This appeal followed.
There are some ten assignments of error that can be readily grouped as follows, viz.: (a) sufficiency of evidence to support the verdict, (b) error in court's instructions to the jury, (c) evidentiary matters, and (d) form of verdict used. These assignments will be treated in that order.
Sufficiency of Evidence to Support Verdict
At the trial defendant, a 28 year old married man, took the stand in his own behalf and admitted the act of sexual intercourse. He claimed however, that it occurred with the consent of the prosecutrix. Since under an assignment of this nature each case must be decided upon its own facts, we do not think it necessary to detail the evidence. It would have no value as a precedent and would merely encumber the reports with a quantity of salacious matter. The prosecutrix, a 20 year old unmarried girl, who had met defendant for the first time that same evening, testified that the sexual act was accomplished against her utmost resistance.
Construing the evidence in the light most favorable to sustaining the verdict, the evidence adduced by the State discloses that the act occurred on the desert away from human habitation, hence it would have been useless for the prosecutrix to call for help. The prosecutrix testified that defendant who was partially intoxicated, after refusing to take her home when repeatedly requested to do so, twisted her arm and threatened to break it if she did not submit [72 Ariz. 19] to him. While the two were struggling, defendant stated, "I am going to have you tonight if I have to knock you out and beat you up to do it." According to her testimony she "was scared of him, afraid he would kill me." She testified also that he forced her back into the car several times when she tried to escape and walk the 15 miles back home, and that finally she became "practically exhausted", although she resisted his advances to the limit of her strength until finally overcome by sheer physical force. Other facts, later referred to, such as her promptly reporting the assault to her sister and then to the officers, as well as the medical testimony and ...