Curby v. Territory of Arizona, 42 P. 953

Curby v. Territory of Arizona

42 P. 953 | Ariz. | 1895

Lead Opinion

ROUSE, J.

(after stating the facts).—It is not necessary for us to pass on the action of the court in overruling the demurrer to the indictment, or that we should express an opinion as to the validity of the indictment in this case. Passing those questions, we find defendant was accused of the crime of rape, tried therefor, convicted, and sentenced to the penitentiary for life. Rape is justly considered one of the most heinous crimes. A low degree of morel turpitude must be attained by a man, in order to commit this crime. Against a man who commits this crime, popular indignation is aroused, and exists with the first information that the man is accused of or charged with the offense. Indignation starts with the accusation. The ease, in part, is prejudged before an examination is had. Support the charge witli the allegation that the victim is the mother, sister, or daughter of the accused, and a trial, unless it be well conducted, is a useless proceeding, for the accused will be condemned before the trial. The sentiment just mentioned gave birth to this expression of an able jurist: “Rape is easy to charge. It is hard to disprove. ’’ Care should be used by the court, in all criminal trials, to prevent convictions on prejudice alone. On account of the nature of the crime of rape, in trials therefor, the court should be exceedingly careful. Laura Curby and Joseph Curby, her father, re*375sided in the same dwelling, and had adjoining bedrooms, with a door from one to the other, for nearly twelve months before the time fixed on which the alleged assault was made. Lodging so near each other during all that period, with opportunities for such an assault at hand every night, when an outery would summon no protector to her defense, the assault was deferred for over ten months. It is alleged that he chose an hour in the daytime, when people were abroad and an outcry would likely attract attention, and on a Sunday (a day on which unusual sounds would be sure to be noticed), to commit the act. After the first act, at intervals of two or three days, it is said, the act was repeated, and that at each time she exclaimed, “Father, have mercy on your own flesh and blood!” That after the completion of the first act she went into her bedroom, and that after she had rested a while, and recovered from the exhaustion caused by her resistance, she went to work, in doing up her housework. She rode on defendant’s wagon with him after the performance of some of those acts to his place of business and elsewhere. After the act she importuned him to purchase her a diamond ring, and he purchased her a gold watch and chain, instead of a ring, and presented them to her on February 22d, her eighteenth birthday, —nearly forty days after the alleged assault, and only four days before she made the complaint on which he was arrested. During the period between the day on which the alleged assault was made and the day of his arrest she worked at the dressmaker’s, where there were a number of women employed, and went about the city of Tombstone as she had done before that period, and Was in company with those she was accustomed to be with. The facts and circumstances in evidence, the age of the accused, the conduct of the prosecutrix after the date of the alleged assault, the nature of the exclamations said to have been uttered by the prosecutrix at the time of the acts, the number of acts alleged to have been had, and the failure of the prosecutrix to make complaint, lead us to the conclusion that no rape was committed. Remove from this case the fact that Laura Gurby is defendant’s daughter, and no one familiar with the nature of the crime would, from the evidence in the case, believe defendant guilty of-this crime. This case must be considered as though she was not related to him. If he committed the act with force, against her consent, it was rape. *376If he committed the act with her consent, it was incest. He is gnilty of rape, or not guilty of anything, on this indictment. On the trial the prosecution seemed anxious to prove the relationship of the parties, and lost no opportunity to establish that fact. Mrs. Curby, who lives in San Francisco, and who is defendant’s divorced wife, was introduced by the prosecution as a witness, apparently for no other purpose than to prove that Laura is his daughter, and the further fact that she is defendant’s divorced wife, of sixteen years’ standing. At least, no other facts were attempted to be established by that witness. Defendant attempted to show that the prosecutrix was actuated, in making the char je against him, by a motive, and to show that the motive wo 3 to shield a lover of hers, whose attentions were paid to her against her father’s consent. This the court did not permit. We think the court erred in its rulings in that respect. It is competent to show, in every criminal prosecution, the motives of the prosecuting witnesses. Their motives are to be considered by the jury, in order to determine the question of the guilt or innocence of the accused. Especially is the motive of the injured woman, in a charge of rape, material to be shown and coosidered. The prosecution propounded to defendant questions about matters not testified to in his direct examination, and he was compelled to answer those questions. A defendant can only be examined by the prosecution about the matters testified to in his direct examination. Pen. Code, par. 2040.

Counsel for appellant contends that a conviction for rape cannot be had on the uncorroboraied testimony of the woman ravished; that her evidence alone is not sufficient; that Laura Curby was not corroborated by any other witness in the case, and for that reason the defendant should be acquitted. We cannot give our assent to that contention. Corroboration is not necessary or required, as a rule. It is required only in cases in which the prosecuting witness occupies in some degree the status of a particeps crir/dnis. The woman who is ravished commits no crime by that act. Of all persons she is the most unfortunate. She is entitled to the sympathy of society, and in her interest the scales of justice should be speedily adjusted. Evidence of the victim alone, in a charge of rape, is sufficient to convict; but as “rape is easy to charge, and hard to disprove,” great care should be exercised on the trial *377of, one accused of this crime to prevent a conviction on prejudice alone, on account of the prejudice which exists against the crime itself. It must he established by evidence that the victim was ravished; she must be overcome with force which she has not the power to resist in an honest effort to do so, or be compelled to yield by threats of violence, which, if executed, would endanger her life; and she must, in good faith, if of the age of discretion, believe her assailant has the power at that time to carry the threats into execution, and will do so immediately on her refusal to obey. She must resort to every reasonable means at hand, if of the age of discretion, to prevent the act, and yield not as long as she can discover an avenue through which she may make her escape. She cannot be neutral or passive. If she is, she will be in pari delicto, and it will not be rape. If, after the first act is accomplished, it be repeated at intervals, and the woman is of the age of discretion, and has the opportunity to make complaint, and she makes none, or if she consents to an act after the first intercourse, such conduct will be evidence that the first act was performed with her consent, and that she was not ravished. We do not think the evidence sufficient to sustain the judgment. The judgment is reversed and the case dismissed, and it is ordered that the defendant be released from the penitentiary, and that, for that purpose the proper writ be issued.

Baker, C. J., and Hawkins, J., concur.

Concurrence Opinion

BETHUNE, J.

(specially concurring in the reversal of the judgment).—In this case I concur in the opinion that the judgment should be reversed, on the ground of errors committed by the trial court. I do not concur in the judgment discharging the defendant, but think the case should be sent back to the trial court for a new trial. I think the trial court erred in not permitting certain testimony offered by defendant, but I am not prepared to say that the evidence adduced at the trial was insufficient to convict the defendant, but think the jury should be permitted to judge that. I do not agree with my brethren that this case must be considered as though the prosecutrix was not related to defendant. I think the fact that she is his daughter, taken in connection with the surrounding circumstances, would make a material difference in considering *378the lapse of time between the first commission of the offense and her telling of it, and her apparent passive submission to subsequent commissions. With shame to our civilization be it confessed, there are not wantin i instances of rape by fathers upon their daughters, and the existence of that relation puts a different phase upon a case like the one under consideration and ordinary cases of rape. The prosecutrix testified that she was in mortal fear of her father and that he was rough and harsh to her, and threatened to kill her if she told on him. “Where a father has established a kind o.f reign of terror in his family, and his daughter, under the influence of dread and terror, remains passive while he has connection with her, he may be found guilty of rape.” Reg. v. Jones, 4 Law T. (N. S.) 154. And again: “Where tie defendant had intercourse with a fourteen-year-old step-daughter, in her bed, in a room where three younger children weic sleeping; she told him not to get into bed, and threatened to tell her mother, but made no outcry, and no complaint for six days,—it was held that under the circumstances a conviction of rape must be sustained.” Bailey v. Commonwealth, 82 Va. 107, 3 Am. St. Rep. 87. All these matters of evidence, I think, should be left to the consideration of the jury, with proper instructions from the court, and opportunity being given the defendant to show any motive the prosecutrix may have in bringing the charge, which latter was not done in this case. For that reason I think the judgment should be reversed and a new trial granted.