Rehearing Denied March 31, 1959.
[85 Ariz. 264] John M. Levy, Phoenix, and Emmett R. Feighner, Phoenix, of counsel, for appellant.
Robert Morrison, Atty. Gen., Lloyd C. Helm, Cochise County Atty., Douglas, John G. Pidgeon, Deputy County Atty., Bisbee, for appellee.
PHELPS, Chief Justice.
Jesse Cruz Romero, the appellant, was convicted of the crime of statutory rape alleged to have been committed upon his wife's sister, a girl sixteen years of age.
During the trial the witnesses were placed under the rule excluding them from the courtroom. George W. Martin, Justice of the Peace, was called as a witness for the State. At that time the following colloquy took place between defense counsel and the court,
'Defense counsel: 'At this time, your honor, I wish to move the court to not allow Judge Martin to testify for the reason that he was in the courtroom all this morning, I understand, or part of the morning, in violation of the rule. The witness should be excluded. I know he wasn't present yesterday. Counsel for the State should have cautioned or advised that the witness for the State should not be present in the courtroom.
'The Court: 'Well, that is a matter of discretion of the court. I don't believe a man of Judge Martin's standing would be influenced.
'Defense counsel: 'I don't think he did it intentionally, your honor. I think the rule should be upheld.
'The Court: 'The objection is overuled. He may testify.'
Appellant contends that the court abused its discretion and thereby deprived the [85 Ariz. 265] appellant of a fair trial by overruling the objection to George W. Martin, Justice of the Peace, testifying as a witness for the State after all witnesses had been placed under the rule excluding them from the courtroom.
The law is well-settled that the rule excluding witnesses from the courtroom is solely a matter within the sound discretion of the trial court and unless there is a showing of an abuse of discretion and a resulting prejudice this court will not disturb the rulings of the trial court. Macias v. State, 36 Ariz. 140, 283 P. 711; Riley v. State, 50 Ariz. 442, 73 P.2d 96; State v. Thomas, 78 Ariz. 52, 275 P.2d 408. In the present case there was no showing that there was a prejudicial result from the witness remaining in the courtroom and we hold that the trial court did not abuse its discretion in allowing the witness to testify.
Appellant furfher contends that he was deprived of a fair trial due to the trial judge commenting, 'Well, that is a matter of discretion of the court. I don't believe a man of Judge Martin's standing would be influenced.' and that the remark of the trial judge indicated his opinion as to the credibility of Judge Martin in violation of Article 6, section 12 of the Constitution of the State of Arizona, A.R.S.
We concede that the above-mentioned statement was error on the part of the trial judge and that it should not have been made. Appellant made no objection to the statement during the trial. Neither did he list it as error in his motion for new trial. In State v. Hoffman, 78 Ariz. 319, 325, 279 P.2d 898, 901, we said, '* * * The purpose of an objection is to permit the trial court to rectify possible error, [Citing case], and to enable the opposition to obviate the objection if possible. * * *' Here the appellant by not objecting at the appropriate time during trial waived his right to assign error to the statement made by the trial judge. If the question is not raised below it cannot be raised on appeal. Pioneer Constructors v. Symes, 77 Ariz. 107, 267 P.2d 740, 41 A.L.R.2d 668.
Appellant, in his third assignment of error, states that the court erred in refusing to give his requested instruction No. 4 to the jury. This proposed instruction would have told the jury that the crime of 'contributing to the delinquency of a minor' was an included offense in the rape charge.
This presents a question of first impression in this court and we believe its incorporation as an included offense has been comparatively rare in this jurisdiction. The writer of this opinion was never presented with such a request in 26 years service on the trial bench. The question specifically presented here is, was it error for the trial court to refuse to instruct the jury, under the evidence in this case, that it could find the defendant guilty of contributing to the delinquency of the minor, if the evidence [85 Ariz. 266] disclosed that the acts of the defendant tended to debase or injure the morals, health or welfare of said minor? Counsel for appellant cites State v. McLain,74 Ariz. 132, 245 ...