known as "Ordinance No. 150a," for the alleged reason that said ordinance was enacted without authority of law and is void because in conflict with the Constitution of the state. The demurrers offered presented the questions as follows:

"Is the city of Yuma, by its charter and ordinances, authorized by law, as contemplated by section 3 of article 15 of the state Constitution, to fix and determine the rates or compensation to be collected by the plaintiff, * ** a public service corporation doing business within the city of Yuma, or has the [state Corporation] Commission full and exclusive power to fix and

determine such rates?"

The court sustained the demurrer and

thereby determined that the municipality, the city of Yuma, has the power of fixing the

rates and charges of plaintiff company within

the city of Yuma to the exclusion of the Corporation Commission, and judgment followed accordingly. The plaintiff appeals, and the record consists of an agreed statement of the

case.

*

of the population of 3,500 inhabitants or
more, was permitted to "frame a charter for
its own government, consistent with, and
subject to, the Constitution and laws of the
state.
Section 2, art. 13, State
Constitution. When said charter is framed
and has been adopted as specified in said
section 2, and approved, the said section de-
clares that-

"Upon such approval, said charter shall become the organic law of such city, and supersede any charter then existing (and all amendments thereto) and all ordinances inconsistent with said new charter."

The city of Yuma duly adopted, as an amendment to its said special charter, the following provision, known as section 54 of

article 3 of the charter:

"Sec. 54. To fix and determine by ordinance, rates or compensation to be charged and collected by any public utility corporation or person for the use of water, heat, light, power, telephone service, or other public utility supplied to the city or its inhabitants, and to prescribe the

G. P. Bullard, of Phoenix, and C. A. Linde- quality of service." man, of Yuma, for appellant.

The city depends exclusively upon this secThomas D. Molloy, of Yuma, for appellees. tion of its special charter as authority for

CUNNINGHAM, C. J. (after stating the facts as above). The question for determination is whether the city of Yuma has the power to fix the rates to be charged patrons of a public service corporation by such corporation while doing business in the city. The parties concede that the city of Yuma enacted an Ordinance No. 150a by which the plaintiff corporation was required to charge and collect from the inhabitants of the said city the rates and compensation for services rendered, water and light furnished such inhabitants in the amounts designated in a schedule annexed to said ordinance, and permitted no greater rates to be charged or collected. That said ordinance was enacted under authority of section 54 of article 3 of the special charter of Yuma, as amended, and of section 3 of article 15, state Constitu

tion.

enacting Ordinance No. 150a setting forth a
schedule of rates to be charged by appellant
company for its service to the inhabitants of
Yuma. In other words, the city of Yuma
contends that said section 54 of article 3
of its charter, adopted as required by section
2 of article 13 of the state Constitution, plac-
es the city of Yuma within the proviso found
in section 3 of article 15 of the state Consti-
tution. Section 3 of article 15 grants to the
Corporation Commission-
"full power to
prescribe just and rea-
sonable classification to be used, and just and
reasonable rates and charges to be made and
collected, by public service corporations within
the state for service rendered therein, and make
reasonable rules, regulations, and orders, by
which such corporations shall be governed in
the transaction of business within the state:
towns may be authorized by law to exercise
* Provided, that incorporated cities and
supervision over public service corporations do-
ing business therein, including the regulation of
rates and charges to be made and collected by
such corporations."

* *

The ordinance in question is clearly one regulating and fixing, until otherwise pro vided by law, the rates which public service corporations may charge and collect from the inhabitants of the city of Yuma for water, The authority to adopt a special charter, lights, and power, served and used in the without any doubt, is legislative in its nacity of Yuma. The ordinance is one directly ture. The Constitution expressly delegates regulating the private business transactions to the incorporated cities and towns of the between the public utilities company and its state the power so to legislate, and expressly patrons or customers, users of its water, limits the power of such legislation to such light, and power. Consequently the matter matters as pertain to its own government here for inquiry is the source of the power of consistent with and subject to the Constituthe municipality to regulate the relations of tion and the laws of the state. Section 2, its inhabitants among themselves with regard art. 13, State Constitution. Clearly, the matto the services of public utilities companies. ters of regulation of rates collected and The city of Yuma duly adopted a special charged by public service corporations for charter, authorized by section 2 of article services rendered inhabitants of any incor13, state Constitution. Yuma, being a city|porated city or town are not matters pertain

HENRY D. ROSS and BAKER, JJ., concur.

ELMER v. STATE. (No. 454.)

ing to the cities' own government, and section | and the cause remanded, with instructions to 54 of article 3 of the city charter is clearly overrule the city's demurrer to the plaintiff's inconsistent with section 3 of article 15, State complaint and render judgment for the plainConstitution. The city of Yuma had no au- tiff, with such restraining orders as are necthority of law to adopt a charter provision essary in the premises to secure the rights abrogating the powers of the Corporation of the parties in accordance with law. Commission to fix rates and charges of public service corporations within the state. The legislative power of the state alone could take from the Corporation Commission the duty of fixing rates and give the right to the cities. State v. Tucson Gas, etc., Co., 15 Ariz. 294, 138 Pac. 781. No pretense is made that the legislative power has attempted to authorize the incorporated cities to exercise the power of supervision over public service corporations. The words of the Constitution stating that a city of 3,500 inhabitants or more "may frame a charter for its own government" mean that it may frame a charter for the government of itself as a city, which includes all that is necessary or incident to the government of a municipality, but not all the power that the state has for the protection 2. RAPE 48(1)-COMPLAINTS OF VICTIMof the rights and regulation of the duties of the inhabitants in the city as among themselves. See State ex rel. Garner v. M. & K. Tel. Co., 189 Mo. 83, 88 S. W. 41; Tacoma Gas & El. L. Co. v. City, 14 Wash. 288, 44 Pac. 655; section 63, 1 Dillon, Munic. Corp. page 114.

In State v. Tucson Gas, etc., Co., 15 Ariz. 294, 297, 138 Pac. 781, 782, this court said:

(Supreme Court of Arizona. Feb. 3, 1919.) 1. CRIMINAL LAW 1186(1)—ADMISSION OF IMPROPER TESTIMONY-REVERSIBLE Error.

If improper and prejudicial testimony upon a vital point has been admitted as against the defendant, he is entitled to a reversal, although upon the whole record his guilt may be appar

ent.

EVIDENCE-ADMISSIBILITY.

Where victim of rape, who at the time of the trial was 16 years old and not imbecile or otherwise incapacitated, and was available as a witness, did not appear and testify, evidence that soon after occurrence she made complaint of the wrong done her by defendant was inadmissible; such evidence being admissible only in corroboration of victim.

3. CRIMINAL LAW 1186(4)-ADMISSION OF IMPROPER TESTIMONY-REVERSIBLE ERROR.

"In the absence of legislation as contemplated by the proviso in section 3 (of article 15, Where victim of rape, who at time of trial Const.), the 'full power' is a general grant or in- was 16 years old and not imbecile or otherwise vestiture of plenary power in the [Corporation] incapacitated, and was available, did not appear Commission to prescribe classifications and fix and testify, admitting evidence that soon after rates and charges for all public service corpora- occurrence she made complaint of the wrong tions in the state. By the proviso this full pow-done her by defendant was prejudicial error, and er and jurisdiction of the Corporation Commis- not technical in the sense that Const. art. 6, sion to prescribe classifications and fix rates § 22, forbids reversal for technical error. and charges in incorporated cities and towns may be transferred to such municipal corporations, if 'authorized by law'; that is to say, the Legislature may, in one case, exercise its power to restrict or limit the 'full power' and jurisdiction of the commission to prescribe classifications and fix rates and charges of public service corporations, and that case is particularly and definitely pointed out."

Appeal from Superior Court, Graham County; A. G. McAllister, Judge.

George Elmer was convicted of rape, and he appeals. Reversed and remanded for new trial.

F. C. Jacobs, of Globe, and Lee N. Stratton, of Safford, for appellant.

Wiley E. Jones, Atty. Gen., for the State.

BAKER, J. The defendant was informed against, tried and convicted of the crime of rape, alleged to have been committed upon his own daughter, a young girl under the age of 18 years. He appeals from the judgment of conviction and the order denying a new trial.

This record does not point to a general law enacted by the legislative power of the state taking from the Corporation Commission the power to regulate rates and charges of public service corporations and granting such power to incorporated cities and towns. It does point to an attempt made by the incorporated city of Yuma to accept such power prior to its grant. Clearly, section 54 of article 3 of the Yuma charter, adopted by [1] The crime charged is a revolting one to amendment, is void because in conflict with any decent man, and the defendant, if guilty, the Constitution of the state (section 3, art. justly deserved the punishment inflicted up15). Ordinance No. 150a is therefore inop-on him; nevertheless, it remains our duty, erative for any purpose. under the assignments of error, to examine

The judgment appealed from is reversed, the record and determine if the defendant For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

has been convicted in accordance with the rules of criminal procedure made applicable alike in the trial of one who is guilty as well as one who is innocent. If improper and prejudicial testimony upon a vital point has been admitted as against the defendant, he is entitled to a reversal of the judgment of conviction, although upon the whole record his guilt may be apparent. In People v. Hulse, 3 Hill (N. Y.) 316, Bronson, J., after citing the admonitory remarks of Lord Hale on the ease with which the accusation of rape may be made and the difficulty of defense by the party charged adds:

* *

"Cases of this character do not call for any relaxation of the rules of evidence for the purpose of supporting the accusation. There is much greater danger that injustice may be done to the defendant in cases of this kind * in prosecutions of any other

than character."

have been excluded as unsatisfactory and incompetent hearsay evidence.

Mr. Wigmore, in discussing the admissibility of complaints made by the injured female, says:

"Since the only object of the evidence (complaint) is to repel the supposed inconsistency between the woman's present testimony and her former silence, it is obvious that if she has not testified at all, there is no inconsistency to repel, and therefore, the evidence is irrelevant." 2 Wigmore on Evidence, par. 1136, subd. 2.

Greenleaf positively declares that:

"Where she is not a witness in the case, it [complaint] is wholly inadmissible." 3 Greenleaf, 213.

"But where the facts and circumstances do

not form part of the res gestæ, that is, they are not so intimately connected with the complaint as to spring with the act itself, they can be given in evidence only in corroboration, but [2] It is assigned as error that the trial even then are not admissible where the injured court permitted several witnesses for the woman does not testify." 1 Wharton's Crimprosecution including the wife of the defend-inal Evidence, p. 520 (note). ant, to testify that the young girl, soon after the alleged unlawful occurrence made complaint of the wrong done her by the defendant. The young girl was not prosecutrix in the case; that is, she did not appear as a witness and testify in the case. It does not appear that she was too young to understand the nature of an oath, or that she was imbecile or otherwise incapacitated as a witness. It does appear, however, that at the time of the trial she was about 16 years of age, and resided in the county where the case was tried, and

The adjudicated cases fully sustain these text-writers. People v. Graham, 21 Cal. 268; State v. Wheeler, 116 Iowa, 212, 89 N. W. 978, 93 Am. St. Rep. 238; Matthews v. State, 19 Neb. 330, 37 N. W. 234; People v. McGee, 1 Denio (N. Y.) 19.

[3] It is said, however, that, although it was error to permit the witnesses for the prosecution to testify to the complaints made by the young girl, such testimony was not prejudicial because other evidence in the case

established the guilt of the defendant. We that she was available as a witness if the cannot agree with this contention. Conceding prosecution desired to call her. The rule is that the other evidence is very conclusive as well established that the fact that the victim establishing the guilt of the defendant, this of a rape made complaint soon after the oc- will not justify a holding that illegal evidence currence may be shown in evidence, either upon the vital issue in the case was not prejby the testimony of the victim or by the per-udicial to the accused. He was a witness at son to whom the complaint was made. However, such testimony is not admissible as independent proof of the commission of the crime, but is only to be received in corroboration of the victim or prosecutrix. 22 R. C. L. § 47; 33 Cyc. 1463.

This rule has received the sanction of the court in this jurisdiction:

"The evidence of the complaint is not admitted as a part of the res gestæ, nor as evidence of the guilt of the defendant, but merely in corroboration of the prosecuting witness in the sense that it removes from her testimony a suspicion that might otherwise rest upon it, unless it were shown that she did what would naturally have been done by a chaste woman under like circumstances, viz., made known the fact of the injury done her." Territory of Arizona v. Kirby, 3 Ariz. 291, 28 Pac. 1134.

But it is obvious that this rule has no application in the present case, for the reason that the young girl was not called and did not testify in the case, and therefore the testimony of complaints made by her should

the trial in his own behalf, and stoutly denied his guilt. The question of fact was one for the jury, and the defendant had the right to have the issue submitted to the jury free from the objectionable and dangerous hearsay testimony.

This is not a case where it can be consistently said that the error in admitting the hearsay testimony was "technical" in the sense of section 22, article 6, of the Constitution, forbidding the reversal of any cause for technical error where, upon the whole record, substantial justice has been done.

Complaint is made in other assignments that the trial court erred in permitting the defendant's wife to become a witness for the prosecution and testify to communications between the husband and wife. Furthermore, that the trial court erred in permitting evidence to be introduced in behalf of the prosecution concerning extrajudicial confessions made by the defendant. In the rulings challenged by these assignments we find no reversible error, but, owing to the

COPPER STATE MINING CO. v. WILLS. peal, but the record as filed in this court does

Appeal from Superior Court, Pinal Coun- quires no jurisdiction to review the judgty; O. J. Baughn, Judge.

One who purchased intoxicating liquor is not an accomplice with the seller within Pen.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Code 1913, §§ 27, 1051, since to aid or abet, within section 27, requires an approach to the crime from the same angle as the principal, whereas a purchaser of liquor approaches from a different angle than that of the seller.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Abet; Accomplice; Aid.]

5. CRIMINAL LAW

X. N. Steeves, of Williams, and J. E. Jones, of Flagstaff, for appellant.

Wiley E. Jones, Atty. Gen., Geo. Harben, and L. B. Whitney, Asst. Attys. Gen., and C. B. Wilson, Co. Atty., of Flagstaff, for the State.

BAKER, J. The appellant was convicted 785(4)-INSTRUCTIONS- of selling intoxicating liquor to W. A. Shackley, and appeals.

CREDIBILITY OF DETECTIVES.

In prosecution for illegal sale of intoxicating liquors, where the only evidence of sale was that of three detectives, instruction that the fact that they were detectives and bought liquor for the purpose of securing evidence could be considered in weighing their testimony, was all that accused was entitled to. 6. INTOXICATING LIQUORS SALE-EVIDENCE-ADMISSIBILITY.

233(2)-ILLEGAL

Where owner of pool hall was accused of selling Bourbon whisky illegally, the fact that a keg of rye whisky was found in the basement of his pool hall was admissible in evidence and proper for consideration of the jury.

It appears from the testimony that the Thiels Detective Service Company was employed by the county of Coconino to procure evidence of violations, if any, of the prohibition amendment in that county; that, pursuant to this employment, the company sent three of its detectives, W. A. Shackley, H. C. Whitney, and C. W. Penturf, to Coconino county to procure such evidence; that the appellant was engaged in the business of stock raising and also, at the time of the commission of the alleged offense, operated or conducted a poolroom and soft drink establishment in Williams, Coconino county, Ariz.; that on

7. CRIMINAL LAW 676-LIMITING NUMBER the 21st day of March, 1917, the detectives, OF CHARACTER WITNESSES.

In prosecution for illegal sale of intoxicating liquor, action of court in limiting character witnesses of defendant to seven held not an

abuse of discretion. 8. CRIMINAL LAW

Shackley, Whitney, and Penturf, all three, went to the poolroom of appellant for the avowed purpose of obtaining evidence against the appellant for the unlawful sale of intoxicating liquor, by inducing him to sell 1168(2) - HARMLESS such liquor, and each one of said detecERROR-LIMITING NUMBER OF WITNESSES. tives bought a round of drinks of whisky In prosecution for illegal sale of intoxicat- from the appellant; that they represented ing liquors, limiting accused's character wit-that they were going to the Grand Canyon and nesses to seven was not prejudicial, where the wanted to take something along with them, testimony of the seven was not controverted. and they each bought a pint of whisky from 9. CRIMINAL LAW 676-LIMITING NUMBER the appellant, paying him therefor the price of $3.50 a pint. The bottles containing this whisky were carefully labeled by the detec tives for identification, and were introduced

OF CHARACTER WITNESSES.

As a general rule, the trial court, in the exercise of a sound and reasonable discretion, has the power to limit the number of witnesses who shall testify to a particular fact.

10. WITNESSES 344(1) - IMPEACHMENT SPECIFIC ACTS.

in evidence at the trial.

The appellant's version of the transaction is that the detectives, Shackley and Penturf (he could not remember as to Whitney) came to his pool hall about the time stated in their testimony, and that Penturf asked him if he had any whisky, and that he informed Penturf that he had no whisky and that he did not handle it. Penturf and Shackley went to playing a game of pool and when the game was over they went out the back way of the premises and soon returned and Penturf pulled a bottle of whisky out of his pocket and 318 CORROBORATION Or asked appellant to have a drink; that, after UNIMPEACHED WITNESS.

In prosecution for illegal sale of liquor, witnesses for the prosecution could not be impeached by showing that they had sold whisky to women, that one of them had stolen a dog, that one of them was seen drunk, and that they collected money from others for the purpose of buying whisky to be drunk at a dance; such matters not being felonies, and the character and reputation of a witness not being provable by specific instances of misconduct. 11. WITNESSES

In prosecution for illegal sale of intoxicating liquors, where the prosecution did not attack accused's reputation for truth and veracity, evidence to sustain his credibility was not admissible.

Appeal from Superior Court, Coconino
County; George H. Crosby, Jr., Judge.
George Baumgartner was convicted of sell-
ing intoxicating liquors, and he appeals.
Affirmed.

procuring some ginger ale for use with the whisky, the appellant took a drink, and that Penturf replaced the bottle of whisky in his pocket, and these men left the premises.

Appellant positively denies that he sold these detectives, or either one of them, any drinks of whisky, or that he sold the bottles of whisky.

[1] It was the sole province of the jury to determine which one of the versions of the transaction was true, and the verdict of guilty necessarily imports that the jury ac

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