Judgment reversed and case remanded for new trial.
Fred O. Wilson, Atty. Gen., and Alfred C. Marquez, Asst. Atty. Gen., for appellee.
Allen & David, of Tucson, for appellant.
Stanford, Justice. Udall, C. J., and Phelps, De Concini and La Prade, JJ., concur.
Harry Ronald Rothe, appellant, was found guilty by a jury of the charge of aggravated assault, a felony, and he appeals from the judgment of conviction and claims excessive sentence imposed thereon.
The facts show that while appellant was at his sister's house in Tucson, Arizona, he took his child, the daughter of the prosecutrix, Mrs. Lydia Rothe and together with his own mother started to drive away, asserting that he was tired of the prosecutrix' tantrums and was going to take the child and leave. Before driving away, the appellant twice attempted to remove the prosecutrix from the running board of the car on which she had placed herself in an effort to remove the child from the car. Finally the appellant drove away with the prosecutrix clinging to the right hand side of the car, and she remained there during the drive to the house of Prucnal's some three or four miles distant. Appellant testified that at the home of Prucnal's he removed the prosecutrix from the running board of the car and placed her over the fence and into the yard of said residence, while other witnesses, including the prosecutrix, testified that he slapped her several times on the face and then threw her over the fence with great force and violence.
[74 Ariz. 383] The treating of the "Legal Propositions Relied Upon", submitted by the appellant, will we think, sufficiently dispose of the numerous assignments of error.
We will first consider the appellant's contention that the trial court erred in excluding Defendant's Exhibit No. 1 for Identification, which is a letter written by the prosecutrix to a girl friend on the date of and prior to the alleged aggravated assault. In this letter the prosecutrix called her husband, the defendant, an animal, and admitted that she intended to return to Guatemala
and obtain a divorce as soon as her baby was stronger. She said her husband knew nothing of her plans to get a divorce. She told her friend that after the divorce she planned to take a trip to "North Africa 'Casablanca' where my dearest Phil is now!" In another part of the letter she referred to Phil, saying:
"I have my Phil and he is sending me the money to go with him. Is not that a big love? Oh Jean he ...