[80 Ariz. 383] Struckmeyer, Whitney & Perry, Phoenix, for appellant.
Robert Morrison, Atty. Gen., L. Alton Riggs, Sp. Asst. Atty. Gen., T. J. Mahoney, County Atty., Pinal County, and Irving Vincent, Deputy County Atty., Florence, for the State.
NICHOLAS UDALL, Superior Court Judge.
Appellant, Winston O. McDaniel, was informed against, tried and convicted of the crime of fellatio, a felony, and he appeals from the judgment and sentence of imprisonment.
On November 21, 1954, three teen-age boys residing at Florence attended a 'Movie' in Coolidge. Afterward, between the hours of 10:00 and 11:00 p.m., they went to a cafe and there encountered defendant, a Coolidge high school teacher. The boys not having transportation home, defendant agreed to drive them as far as the 'Y' and they would attempt to 'hitchhike' on to Florence. However, upon arriving at that point, defendant agreed to drive that lads on home.
After two of the boys were taken to their homes, the complaining witness, a fourteen year old boy, climbed into the front seat and was alone with defendant. The substance of this boy's testimony was that defendant told him that he wanted to see his mother and upon such pretext drove toward his home which was some distance outside the city; that enroute defendant made inquiry of the boy about his private parts; that defendant stopped his automobile and when the complaining witness started to get out, defendant told him it was no use getting out as the door was locked; that he did not agree to the lewd and lascivious acts, known as fellatio, which then were performed upon his body by defendant, but he admitted he did not resist because '* * * He could have had a knife or something there in the floorboard.' On cross-examination the witness admitted that he saw no knife and that no physical violence was threatened by defendant. There was no proof that the door was locked nor that the boy was forced to remain in the car. The next morning, after observing her son's conduct, his mother at his request called the police, and he related the occurrence to the officer the following evening.
The testimony of various witnesses leaves no doubt with regard to the occurrences in Coolidge, that defendant took the three boys to Florence and that he took the complaining witness home after taking the other boys to their homes. The only direct evidence of the act of fellatio by defendant is the testimony of this boy. Defendant did not testify. However, there is other evidence to which reference will be made in the discussion of the assignments of error.
While defendant presents some fifteen assignments of error and thirteen supporting propositions of law we believe the legal problems raised fall into five categories which will be treated in such order as seems best.
[80 Ariz. 384]
Defendant contends the court erred in not granting his motion for an instructed verdict because the evidence, as he construes it, shows the complaining witness to be an accomplice and that there was a lack of corroboration of his testimony. It has always been the rule in this jurisdiction that 'A conviction shall not be had on the testimony of an accomplice unless the accomplice
is corroborated by other evidence * * *.' Sec. 13-136, A.R.S.1956. There are numerous decisions of this court interpreting this statute, some of the more recent being: State v. Miller, 71 Ariz. 140, 224 P.2d 205; State v. Thomas, 79 Ariz. 355, 290 P.2d 470.
If the complaining witness in the instant case of his own volition participated in the act of fellatio he would in law be an accomplice, as was the prosecutrix in the Thomas case, supra. Inasmuch as defendant did not testify, the only evidence on this point is the testimony of the boy, who stoutly maintained that he did not enter willingly into the act of fellatio committed upon him by defendant and that the only reason he submitted was because of his fear that defendant would do him bodily harm if he refused.
A similar problem arose in the case of People v. Westek, 31 Cal.2d 469, 190 P.2d 9, 12. There the defendant was convicted of sodomy and lewd and lascivious conduct with young boys. The question of whether they were accomplices in relation to the alleged acts was submitted to the jury. The decision recites that each of the boys admitted the commission of the acts and that he knew them to be wrongful, but each maintained that he was 'afraid of' defendant and did not 'willingly' participate in the acts. The trial court had covered in its instructions the law pertaining to accomplices as well as 'the distinction between the consent necessary to constitute one an accomplice and mere assent and submission without consent'. The importance of the latter consideration rested upon the premise that the boys' mere submission to the violation of their persons would not involve the criminal intent necessary to subject them to prosecution for commission of the acts and so classify them as accomplices. The court pointed out:
'Consent, in law, means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice, to do something proposed by another. 'Consent' differs very materially from 'assent.' The former implies some positive action and always involves submission. The latter means mere passivity or submission, which does not include consent.'
We are in accord with the foregoing statements. Cf. Wharton's Criminal Evidence, 12th Ed., Vol. 2, Section 453. In the instant case we hold that the trial court did not err in submitting the issue of whether the complaining witness was an accomplice to the jury under proper instructions as to the law governing the matter. By its verdict of guilty the jury obviously believed the [80 Ariz. 385] complaining witness was telling the truth, hence it must necessarily have found (a) that the complaining witness was not an accomplice in this crime so as to require corroborating evidence, or (b) if an accomplice that his testimony was sufficiently corroborated by other competent evidence. (We shall further discuss this matter of corroboration later in the opinion.)
Admissibility of Statement of Police Officer.
The chief of police of Coolidge was permitted to relate a conversation held with defendant regarding the pending charge. This conversation took place while the witness and defendant were riding from Florence to Collidge after defendant's preliminary hearing. Defendant objected upon the theory that if the testimony relating the conversation purported to be a confession a proper foundation had not been laid. The conversation was as follows:
'After we entered the car the conversation was opened by Mr. McDaniel with words to this effect: he turned to me and said, 'This is sure an awful mess, isn't it?' and I replied, 'Yes, Mac.' I said, 'It looks ...