Richey & Herring, Douglas and Tucson, for appellant.
Fred O. Wilson, Atty. Gen., Wesley E. Polley, Bisbee, County Atty. of Cochise County, for appellee.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[74 Ariz. 134] Bruce McLain, appellant herein and defendant below, was accused of the crime of statutory rape committed on Maria, a [74 Ariz. 135] girl of 12 years of age. The lower court instructed the jury that they could return one of four possible verdicts, viz., (1) Statutory Rape, (2) Assault with Intent to Commit Rape, (3) Contributing to the Delinquency of a Minor, (4) Not Guilty. The jury returned a verdict against the defendant and found him to be guilty of the crime of Assault with Intent to Commit Rape. The defendant appeals to this court from the judgment and from the sentence of the lower court.
Defendant assigns 14 errors, many containing subassignments and 35 propositions of law upon which he relies.
The facts are that the defendant McLain was employed as a teacher in the Rucker Canyon School near Bisbee, Arizona. A teacherage by the school was provided as living quarters for him and his wife and two year old son. At the time of the alleged incident, the defendant's wife and son were out of the state visiting with relatives and the defendant remained at the teacherage alone. The prosecutrix was one of his eight students; the other seven were boys. During a dance which followed a school play, the defendant is alleged to have raped Maria. His testimony was to the effect that he only manipulated Maria's private parts and that she manipulated his which caused him to have an emission. The testimony of Maria is that he raped her while she was in his Chevrolet truck.
Assignments 1 to 5 deal with evidentiary matters.
Defendant's first assignment of error deals with the testimony of Mayola Vail, one of the state's witnesses. She related the exact words of the prosecutrix which were spoken soon after the alleged event. The words were, "He screwed me". The defendant strenuously objected contending that the words were hearsay and not part of the res gestae. The lower court however overruled the ...