I cannot concur in the result or the reasoning contained in the majority opinion. The defendant in this case was convicted of a heinous offense, and sentenced to serve not less than thirty nor more than fifty years in the Arizona State Prison; this upon the uncorroborated testimony of an ignorant, frightened child of eight years. This child was permitted to testify to previous offenses of a like nature alleged to have been committed by the *Page 232 defendant upon her. The child did not know her own age, month of birth, or date (R.T., p. 12). In response to the following question, she made this answer:
"Q. Do you know how old you are? A. Seven, I think."
The child testified that the defendant had repeatedly, almost daily, had sexual intercourse with her since she was three years of age. What little testimony was elicited from the prosecuting witness was accomplished by leading questions, this over objection, and upon the court's announcing that it would permit the county attorney to ask leading questions. The leading character of the questions is evidenced by the following sample taken from the Reporter's Transcript. In effect, the interrogator did the testifying. After having testified that she did not know the month or date of her birth, she would answer all leading questions, "Yes, man."
"Q. You had a birthday on the 24th of last August? A. Yes, man.
"Q. You were eight years old then? A. Yes, sir. . . .
"Q. Do you know Joe Guldin? A. Yes, man.
"Q. Do you see him in the Court Room? A. Yes, right there.
"Q. Sitting in back here? A. Yes, man.
"Q. He is your stepfather, isn't he? A. Yes, man.
"Q. Married to your mother? A. Yes, man.
"Q. Did he ever bother or molest you in any way? A. Yes, man.
"Q. Did he ever have sexual intercourse with you, Joan? A. Yes, man. . . .
"Q. Did he ever take your panties off? A. Yes, man.
"Q. Did he get his person into your person? A. Yes, man.
"Q. Did he make you bleed? A. Yes, man.
"Q. Did it hurt you? A. Yes, man." *Page 233
The foregoing testimony was given with reference to an incident other than the one for which the defendant was on trial. She was interrogated by the county attorney as follows, with reference to another and additional occasion than the one for which the defendant was on trial:
"Q. Did he take your little clothes off that night? A. Yes, man. . . .
"Q. Did he put his person into your person? A. Yes."
The only testimony produced on direct examination by this child relative to defendant's guilt in the instant case appears as follows: After having testified as to previous occurrences, this question was asked by the county attorney:
"Q. The last time this happened was when he had you in the lavatory, the toilet, at your home? A. Yes, man."
One question that was not leading and that could not be answered by "Yes, man," was accidently put. The question propounded was this:
"Q. What did he do in regard to your clothing at that time?"
The court interrupted before she could answer, and asked this leading question:
"Q. Did he take your clothing off at that time?" To which she answered: "A. Yes, man."
Under our statute, Section 23-103, Arizona Code Annotated 1939, "Children under ten (10) years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly" are incompetent to testify. It is thus seen that intelligence and not age is the proper test by which the competency of an infant witness should be determined. Sheek v. State, 19 Ariz. 509, 172 P. 662;Keefe v. State, 50 Ariz. 293, 72 P.2d 425. The question of competency rests largely *Page 234 in the sound discretion of the trial court. (Cases above cited.) In view of the leading character of the questions propounded, little opportunity was given to discover the intelligence of the prosecuting witness or her ability to relate the facts truly. I am of the opinion that in view of the gravity of the offense charged at least an attempt should have been made to have the child relate without prompting and leading what had occurred, if she could.
The majority opinion vaults the statute, Section 44-2702, Arizona Code Annotated 1939, and the holding in the case ofZumwalt v. State, 16 Ariz. 82, 141 P. 710, by leaving the innuendo that the transcript does not disclose that the county attorney commented upon the fact that the wife of the defendant was not called by him. The transcript of the evidence shows that the following took place during the argument of the county attorney. Objection by counsel for defendant: "Your honor, we object to the remarks of the County Attorney about the defendant's wife and stating why we didn't bring her here. . . ." The brief of the state, which was in fact prepared by the county attorney who tried the case, admits that he commented upon the fact that the defendant did not call his wife to testify in his behalf. The statement in the brief is as follows:
". . . The comment of the County Attorney anent the failure of defendant to produce his wife as a witness was entirely proper. See Zumwalt v. State."
The holding in the Zumwalt case is absolutely to the contrary. The county attorney at the time of the oral argument in this court admitted that the wife had told him that she would not testify for the state. Nevertheless, the following proceedings were had. At the beginning of the trial the court asked the county attorney to call his witnesses. Among these witnesses the county attorney announced the name Velma Guldin, *Page 235 the wife of the defendant, pointed her out, and announced that she was then and there present (she was at that moment an escapee from the Arizona State Hospital for the Insane); whereupon the court in the presence of the jury made the following statement:"Let the record show the wife is being held as a materialwitness by the state. She will be called in turn." Under the provisions of the statute and the decision of this court in the Zumwalt case, the wife could have been examined as a witnessonly at her own request. She could not be compelled to be a witness and the state had no right or authority to detain her as a material witness, and even had she been lawfully detained as a material witness, it was prejudicial error on the part of the trial court to announce that she was being detained by the state.
The situation now adds up to this: The county attorney announces that the wife of the defendant will be a witness for the state; the court announces that she is being held as a material witness for the state and will be called; the wife advises the county attorney that she will not testify; the county attorney then censors the defendant for not calling his wife as a witness, which the defendant was powerless to do. He was helpless to defend against this argument. The attempted excuse for this conduct is set forth in the state's brief as follows:
"We wish to point out that defendant's counsel in argument told the jury that the defendant's wife, Velma Guldin, had made the complaint against defendant because of her jealousy, and we naturally in our argument in reply to defense argument pointed out that if such were true, defendant had the right to produce his wife as his witness, she being readily available, . . ."
The defendant testified that at the time of the alleged offense he was suffering from gonorrhea and had been treated by a doctor. The state had not *Page 236 offered any evidence to the effect that the child in question was infected with gonorrhea. The defendant undoubtedly intended that the jury would conclude that if he was suffering from gonorrhea the girl would have been infected, and the state not having offered any proof that she was infected, the inference would be that he had not had sexual intercourse with her. The defendant, to corroborate his statement of infection, called the doctor who had treated him. The doctor gave his name, identified the defendant, and said that he had treated him, but could not recall the dates of the treatment, whereupon the following questions were asked and answers given:
"Q. To the best of your recollection, Doctor, when was that, about? A. Well, I can give you the exact circumstances of the first time I saw him, if you would like me to.
"Q. All right. A. Judge Faires called me and asked me if there was something couldn't be done to stop this fellow from hollering so much. I went over to the jail to examine him and he was up there kind of a like a crazy man, except that a person of ordinary perspective could see it was absolutely put on. There was no sign of insanity whatever. What he was doing was just a case of putting on and I told the Sheriff to that effect, and advised him to make him shut up.
"Q. And then? A. Later on I was called under similar circumstances by the Sheriff. I went up and examined him again, and he was carrying on this crazy stuff again. I advised the Sheriff to get a piece of lead pipe and crack him over the head with it. It was absolutely put on and nothing else. I was called a third time. He said he was sick and — do you want me to tell you about that too?"
After the foregoing unsolicited and not responsive answers were given, the doctor gave the following contradictory testimony — that the defendant was suffering from a urinary discharge that "was probably a recurring gonorrheal infection and uretheritis, or *Page 237 possible gonorrheal infection or simply uretheritis" but "not necessarily a venereal disease."
The defendant stood on his defense of not guilty. He at no time attempted to excuse his acts on the ground of insanity. Nevertheless, the doctor was permitted voluntarily to make a speech to the jury regarding what the doctor considered to be actions of feigned insanity. He concluded his evidence by stating that he advised the "Sheriff to get a piece of lead pipe and crack him over the head with it."
I am not unmindful of the revolting conduct charged against this defendant. If he is guilty, he should be punished. Nevertheless, every person accused of an offense is entitled to a fair and impartial trial, conducted impartially and without bias and prejudice. The language in Keefe v. State, supra, is appropriate here. In this Keefe case the defendant was charged with a sex offense against a four-year-old girl. We said [50 Ariz. 293, 72 P.2d 426]:
"The crime charged is of such a nature that every right-minded man or woman views it with horror and aversion, and especially when committed by an adult upon the person of a child. But for this very reason justice requires particular care that one charged with such a crime should not be convicted thereof on insufficient or improper evidence. A great judge once said in regard to rape, that such a charge was one `easy to make, difficult to prove and more difficult to disprove, though the accused be never so innocent.' (1778) 1 Hale P.C. 635. Much more is this true of such a crime as the one charged herein. For this reason we must scrutinize most carefully the evidence on which the conviction in this case was based to see whether it was legally admissible to prove the ultimate fact in issue."
The most damaging testimony in this case, and which undoubtedly led to the conviction of the defendant, is contained in the testimony of the county attorney as set forth in the majority opinion. By *Page 238 way of impeachment, the county attorney was permitted to testify as to what the defendant's mother had told him and the justice of the peace. The mother's opinion as to the guilt of her son was predicated upon what the little girl had told her and from her own examination. This statement was made by her at a time when the child was being examined by the doctor. The doctor testified that he could not tell from his examination whether the child had been violated the day before. Hearsay testimony is not legal testimony. If the mother had been called as a prosecuting witness, she could not have been legally permitted to relate what the child told her, nor could she have been legally permitted to state her opinion without showing her qualifications, and without testifying as to the facts upon which she based her opinion. Thus, under the guise of impeachment, the county attorney was permitted to testify and relate hearsay testimony four times removed; the child told her mother; the mother told the grandmother; the grandmother told the county attorney; the county attorney told the jury. The physical improbability of the act having occurred as the child testified is worthy of note. She testified that she sat on top of the lavatory and that the defendant stood up. Did she mean that she sat on the toilet seat or that she sat on top of the tank, which the evidence shows was approximately three feet off the ground and constituted a ledge approximately six inches deep and thirty inches wide? At the back of the six-inch depth there was the perpendicular wall of the room. As was said in the recent case of People v. Auge, (1945, Cal.), 159 P.2d 97, 101:
". . . It was a close question as to whether the testimony of the prosecutrix should have been accepted or rejected. InPeople v. Putnam, supra, 20 Cal.2d 885, at page 891,129 P.2d 367, at page 370, it was said: `It has been long recognized that *Page 239 there is no class of prosecutions "attended with so much danger, or which afford so ample an opportunity for the free play of malice and private vengeance."' In a case of this kind, owing to the disadvantage in which a defendant is placed, it was stated inPeople v. Baldwin, 117 Cal. 244, at page 249, 49 P. 186, at page 187, that `he should be given the full measure of every legal right in an endeavor to maintain his innocence.'"
The cold record here bristles with animosity, bias, and prejudice, upon which no restraints were imposed. The judgment should be reversed and the case remanded for a fair and impartial trial.