State of Arizona v. Guldin , 63 Ariz. 411 ( 1945 )

This case discloses that the law which allows the court to review its holdings on motion for rehearing is salutary. The facts are fully stated in the opinion of the majority and the dissent of Justice LaPrade, in Guldin v. State, ante, p. 223,161 P.2d 121. We are indebted to counsel for defendant who, with much zeal, have in their petition for rehearing called our attention to several phases which seem to have been overlooked both by the majority and dissenting opinions.

After a full reconsideration of both opinions, the motion for rehearing, and a further review of the record, I have come to the conclusion that the defendant was not afforded a fair and impartial trial. I am satisfied that the statement in the majority opinion, that a defendant in a case of this character may be convicted on the uncorroborated testimony of the prosecutrix, is correct. Her story of the act did not disclose its physical impossibility, nor was it so incredible that no reasonable person could believe it. State v. Pollock,57 Ariz. 415, 114 P.2d 249; Reidhead v. State, 31 Ariz. 70,250 P. 366; Zavala v. State, 39 Ariz. 123, 4 P.2d 390. This has to be the rule. Otherwise many offenders would go unpunished. Acts of the character involved here are performed secretly, without the presence of witnesses. The character of the act affords little opportunity, in most cases, for corroboration. Men do not advertise acts of this kind. The competency of the child to testify, as pointed out in the dissent, rests in the discretion of the trial court. Sheek v. State, 19 Ariz. 509,172 P. 662; Keefe v. State, 50 Ariz. 293, 72 P.2d 425. The case was for the jury.

On reflection, I am satisfied that the majority opinion is clearly lacking in failing to point out that the testimony impeaching the mother of the defendant, who appeared as a witness for him, cannot be considered as corroborative evidence of the defendant's guilt. This testimony is set out and referred to in both the majority and dissenting opinions, and need not again be recited. It could not be considered as substantive evidence of the truth of the matter stated therein, and, therefore, could not be utilized as corroborative evidence of defendant's guilt. The testimony is limited under the law, and can be considered only for the purpose of impeachment. This court has repeatedly adhered to this rule which is based upon elementary principles. What a witness may have said at another time and place, when not under oath, and not in the presence of the defendant, cannot be considered as proof of defendant's guilt. It is mere hearsay, admissible for the one purpose only, that of impeaching the witness. Young Chung v.State, 15 Ariz. 79, 136 P. 631; Otero v. Soto, 34 Ariz. 87,267 P. 947; Indian Fred v. State, 36 Ariz. 48,282 P. 930; 70 C.J. 1153, § 1339, Witnesses. The court should have charged that this evidence could have been considered by the jury only on the question of the credibility of the witness, and not to show the guilt of the accused. People v. Nemeth, 258 Mich. 682, 242 N.W. 808; Cloud v. State, 41 Okla. Crim. 395,273 P. 1012; Thomas v. State, 13 Okla. Crim. 414, 164 P. 995;People v. Westcott, 86 Cal. App. 298, 260 P. 901; 23 C.J.S. 411, Criminal Law, § 1032, subsec. a (2).

Reference by the county attorney to the failure of the wife of the defendant to testify, under the circumstances as originally called to our attention, would not, in my judgment if nothing more appeared, constitute reversible error. Zumwalt v. State,16 Ariz. 82, 141 P. 710. The prosecution has no right to make adverse comments on the refusal of the wife to testify. This is fully covered by the dissenting opinion. The record is vague and uncertain as to the statement which was made by the county attorney, or why it was made. It may have been in answer to some argument of counsel for the defendant. The record would also indicate that the court made some effort to exclude the reference from consideration by the jury. However this may be, I find upon a further review of the cases matters not called to our attention or assigned as error, which, when coupled with the statement referred to, show that reversible error was committed. In the process of cross-examination of the defendant, the county attorney made this statement: "If the court please, we will avow we will show this man Lundgren was taking messages out of the jail." On cross-examination of Lundgren, who appeared as a witness for the defendant, the following appears:

"Q. You carried word from him to his wife out of jail — what message did he send by you to his wife, what did he tell you to tell his wife? A. By Gad, I don't recall him telling me anything.

"Q. Did you carry word to her from him, a letter? A. No, sir.

"Q. You didn't? A. I don't recall that.

"Q. Did he or did he not tell you to tell his wife to either attempt a bluff or to leave town? A. No, he didn't.

"Q. You didn't carry that message to her? A. I didn't carry that.

"Q. If she states that she said something that is not true? A. I didn't get that.

"Q. If she says you brought that message that is not correct? A. Probably so.

"Q. You said you didn't carry such a message to her? A. No, sir."

This cross-examination evidently left with the jury the inference that if the wife of the defendant was placed on the witness stand, she would have testified to matters wholly detrimental to the defendant. These allusions to the wife, coupled with the statement which is assigned as error, disclose that the reference to the wife constituted reversible error.

Furthermore, I think the cross-examination of the witness Lundgren without any attempt, and obviously without any hope, of being able to impeach the witness, was reversible error, underBritt v. State, 25 Ariz. 419, 218 P. 981; Hash v.State, 48 Ariz. 43, 59 P.2d 305. True, this cross-examination has not been assigned as error, but I feel it our duty, in the interest of justice, to raise the question. This court is not a mere umpire to pass upon questions that may be raised. As the court of last resort, particularly in cases of this character, it seems to me to be its duty, where the liberty of an individual is involved, to review the whole record before it. It is not bound by form. The law provides:

"The appellate court may reverse, affirm or modify the judgment appealed from, and may grant a new trial or render any judgment or make any order which is consistent with the justice and the rights of the state and the defendant; . . . ." Section 44-2536, Arizona Code Annotated 1939.

It is a fundamental principle of our law that defendants are entitled, no matter what the charge may be, to a fair and impartial trial. If prejudicial error exists, whether properly assigned or not, and it comes to the attention of this court, it should be considered. In a case like this, where the conviction must of necessity depend upon the practically uncorroborated testimony of a child, great care should be exercised to see that no prejudice is allowed to creep into the trial.

I am, therefore, of the opinion that justice requires that the judgment of conviction be reversed, since substantial rights of the defendant have been adversely affected, and that the defendant be accorded a new trial.

LaPRADE, J., concurs in the result.