[79 Ariz. 357] Benjamin Lazarow, Lawrence Ollason, Tucson, for appellant.
Robert Morrison, Atty. Gen., L. Alton Riggs, Sp. Asst. Atty. Gen., for appellee.
Appellant, Alvin Clarence Thomas, was informed against in count one of the information, tried, and convicted of the crime of committing a lewd and lascivious act upon the person of the prosecutrix and in count three thereof he was charged and convicted of the crime of contributing to the delinquency of certain minors, and sentenced to be punished by imprisonment in the state prison for a period of 18 months for the offense charged in count one, and for a period of one year in the county jail for the offense charged in count three, the sentences to run concurrently. Count two of the information was dismissed. The minors' names for obvious reasons will be withheld and the complaining witness will hereinafter be referred to as the prosecutrix. Alvin Clarence Thomas will be referred to as the defendant and the state of Arizona as the state. A number of witnesses who are also minors will be designated otherwise than by the use of their names.
On the 27th day of June, 1954, defendant was motoring into Tucson, Arizona, and picked up four hitchhikers: prosecutrix, another girl (her companion), and two Davis-Monthan Air Force Base airmen. He took them to his home on Oracle Road in Tucson, where the visitors were given the run of the premises. With defendant's permission, and at his suggestion, the girls and the airmen helped themselves to the contents of defendant's refrigerator and all consumed some beer which they found therein.
Between the 27th day of June and the 15th day of July, the prosecutrix visited the defendant on a few other occasions at his home and testified that on at least three of these occasions the defendant performed an abnormal act of lewd and lascivious conduct with the prosecutrix known as cunnilingus.
The last occasion for this specified act by the defendant upon the person of prosecutrix is claimed to have been performed in the early morning hours of July 15, 1954. On this occasion, upon receiving a telephone call from the companion of the prosecutrix, she and the prosecutrix were taken to the defendant's home by one Sonny Etier, a guest of the defendant, who drove the defendant's automobile to pick up the prosecutrix at approximately 2:00 a. m. Preset on this occasion were defendant, [79 Ariz. 358] Etier, the prosecutrix and two other girls, both of whom were minors.
Defendant did not meet the visitors but prosecutrix went down the hall. She testified that she entered his bedroom and had abnormal sexual relations with him. While she was thus engaged, the others remained in the dining room and played cards. Prosecutrix came into the living room and defendant soon followed. Defendant gave prosecutrix and her companion a sizeable amount of food from his refrigerator and gave Mr. Etier a large bill, and instructed him to cash the same in order to give to prosecutrix and her compainon some money, which was subsequently done. Mr. Etier then took the two girls to their home.
The principal ground for this appeal is that defendant was convicted under count one upon the testimony of an accomplice without sufficient corroboration. Count one of the information under which defendant was convicted is based upon section 43-407, A.C.A.1939, which provides that:
'Any person who shall wilfully commit any lewd or lascivious act upon or with the body of (or) any part or member thereof, of any male or female person, with the intent of arousing, appealing to or gratifying the lust or passion or sexual desires of either of such persons, in any unnatural manner, shall be guilty of a felony and imprisoned not less than one (1) year nor more than five (5) years.'
The state has produced only one witness who testified to the defendant's having committed such an act. This was the prosecutrix, with whom the act is alleged to have been committed. If she participated in the act without fear or duress, her conduct would come within the contemplation of the
act. Under such circumstances she would be guilty of violating this section and a conviction could have been sustained against her under its provisions. Her testimony indicated that she consented to the act and therefore she was an accomplice. The test of whether or not one is an accomplice is whether he could be informed against for the same crime of which the defendant is accused. State v. Green, 60 Ariz. 63, 131 P.2d 411; State v. Miller, 71 Ariz. 140, 224 P.2d 205.
Section 44-1819 provides that:
'A conviction can not be had on the testimony of an accomplice, unless he is corroborated by other evidence which, in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.'
The court properly instructed the jury in accordance with this section and added:
'* * * The corroborating evidence need not be sufficient in itself to establish the defendant's guilt, and need not be by direct evidence. The [79 Ariz. 359] entire conduct of the defendant may be looked to for corroborating circumstances, and, if from those circumstances his connection with the crime may be fairly inferred, the corroboration is sufficient.'
We stated in Kingsbury v. State, 27 Ariz. 289, 232 P. 887, 891, quoting from Reynolds v. State, 14 Ariz. 302, 127 P. 731, that:
"The corroborating evidence must, of itself, and without the aid of the testimony of the accomplice, tend, in some degree, to connect the defendant with the commission of the offense. It need not, of course, be sufficient to establish his guilt; for, in that event, the testimony of the accomplice would not be needed. But it must tend, in some * * * degree at least, to implicate the defendant. The purpose of the statutes was to prohibit a conviction, unless there was some evidence, entirely exclusive of that of the accomplice, which, of itself, and without the aid of the accomplice, tended to raise at least a suspicion of the guilt of the accused."
The Kingsbury case was later reversed on rehearing upon other grounds.
In this case the only evidence we have that a lewd and lascivious act was committed by the defendant is the testimony of the prosecutrix, who as above stated, is an accomplice. The only other evidence upon this fact is that the prosecutrix, on the night in question, went down the hall toward the bedroom which the defendant was occupying. There were three other bedrooms and two bathrooms, a dining room and kitchen down the hall. No one saw her enter the bedroom; no one saw her come out of it. Another girl who was left in the living room testified that prosecutrix was gone from the living room for a few minutes, 'not very long.' She also testified that she, Sonny Etier, the prosecutrix and her companion were not in the defendant's residence more than twenty or thirty minutes, although she could not state the time exactly. This is considerably at variance with the testimony of the prosecutrix, who estimated the time to be between two or three hours. This testimony, in the absence of some showing that she was actually in the bedroom with the defendant is insufficient to show an opportunity to commit even an ordinary act of sexual intercourse. The trial court erred in failing to grant defendant's motion to dismiss count one of the complaint on the ground that there was a lack of corroboration of the testimony of the accomplice. This error was prejudicial and the judgment as to count one of the information must be reversed upon this ground.
Having found reversible error as to defendant's conviction under count one of the information, we shall discuss defendant's other assignments of error in the light of their applicability to the conviction under count three of the information.
[79 Ariz. 360] Defendant assigns as error the refusal of the court to permit him to cross-examine one of the witnesses, also a minor, whom we shall designate as witness A, on
all phases of the case. When counsel asked permission to cross-examine the witness the court instructed him that the defendant may cross-examine the witness on all matters gone into on direct examination or any matter within the knowledge of the witness that might have a bearing on the issues of the trial. This was a correct statement of the Arizona rule as set forth in Podol v. Jacobs, 65 Ariz. 50, 173 P.2d 758. The defendant then sought to bring before the jury on cross-examination a statement from the witness to the effect that the police department of Tucson, specifically Chief Hays, had coerced her into making false statements incriminating the defendant. The court sustained an objection to this evidence. Counsel claims this was a denial of a substantial right of the defendant and was very prejudicial to him. The alleged false statement of the witness never reached the ears of the jury. It knew nothing of its existence. The witness testified to nothing in the presence of the jury that tended to implicate defendant in the offense charged. Defendant was therefore not entitled to parade before the jury something it knew nothing about in order to permit the witness to state it was false and that she was coerced into making it. The court correctly sustained an objection to its admission.
The defendant further claims prejudicial error was committed by the court in permitting the state to show that in March, 1953, defendant had married a 16-year-old girl which marriage her parents had annulled one day later. The question concerned a matter in no way related to the guilt or innocence of the defendant on either counts one or three and should not have been permitted, but applying the test laid down in the case of State v. Polan, 78 Ariz. 253, 278 P.2d 432, to the effect that if the verdict would probably have been the same had the error not been committed, such error will not require a reversal of the judgment. It is our opinion that the admission of the testimony concerning the marriage in no way affected the verdict reached by the jury on count three and is therefore not reversible error. The evidence is overwhelming in support of the charge of contributing to the delinquency of the minors involved. Nothing short of a violation of the oath of the jurors could have resulted in an acquittal.
There is no merit whatever to defendant's assignment of error based upon the state's cross-examination of one of its witnesses whom we shall designate as witness B and by whom counsel for defendant had attempted to prove defendant's good moral character. The state had a perfect right under such circumstances, and it was its duty, to ascertain upon what she based her answer that defendant was of good moral character and it had the right in so [79 Ariz. 361] doing to ascertain the names of those with whom she had discussed his general reputation for good morals in order to ascertain if she was qualified to testify as to his general reputation for morality. Wharton's Criminal Evidence, 12th ed., Examination of Witnesses, Sec. 865, pp. 246 to 257 inclusive; also Underhill on Criminal Evidence, 4th ed., Sec. 172, pp. 302 to 305 inclusive. The cross-examination demonstrated that she possessed no such qualification.
Defendant also claims reversible error committed by the court in permitting the state to impeach the same witness to whom referrence is made above. This assignment of error is based upon the cross-examination of said witness touching upon her qualifications to testify to the general reputation of the defendant for good moral character. The examination of the witness bears no resemblance to impeachment. It was simply cross-examination which the state had the right to pursue both as a matter of right and under the express permission of the court. There is a wide difference between impeachment and cross-examination. State v. Lane, 69 Ariz. 236, 211 P.2d 821.
Defendant further contends that the court erred in refusing to grant his motion for a continuance filed on December 27, 1954, on account of the inability of a nonresident witness, Orin Dellsperger by name, to be present at the trial which the records show was held on March 9th. On the same date (December 27) a motion was made by ...