195 P. 533 | Ariz. | 1921
Clarence Sage, Fred Woods, R. P. Giles, and George Floyd were jointly informed against for the crime of rape, alleged to have been committed upon Alverda Florence Schendel, a female, under the age of eighteen years. The defendant Sage was granted a separate trial and was convicted of the crime. From the judgment of conviction and the order denying his motion for a new trial, he appeals to this court.
The first assignment of error to which our attention will be directed is predicated upon the action of the court in overruling the defendant’s demurrer to the information filed in the case. The demurrer is based upon the proposition that the information is fatally defective because it charges more than one, offense. It is true that if an information charges more than one offense it is subject to demurrer upon that ground. Penal Code, par. 938. The question then is: Does the information in this case charge two offenses? We do not think so. It is alleged that—
The defendants [Sage, Woods, Giles, Floyd] “did . . . willfully, forcibly, violently, unlawfully and feloniously, make an assault upon one Alverda Florence Schendel, and did then and there administer to her, the said Alverda Florence Schendel, intoxicating and narcotic liquors, which produced in her the said Alverda Florence Schendel, a stupor and weakness that rendered her incapable of resistance, and by threats of great and immediate bodily harm, accompanied by apparent power of execution, the said Clarence Sage, Fred Woods, E. P. Giles and George Floyd, did ... in the manner, and by the means aforesaid, willfully, forcibly, unlawfully and feloniously ravish, carnally know, perform and accomplish with her, the said Alverda Florence Schendel, an act of sexual intercourse, against her will and resistance and without her consent, she the said Alverda Florence Schendel, . . . being’ a female under the age of eighteen years and who /was not . . . the wife of said Clarence Sage, Fred Woods* E. P. Giles, George Floyd, or either of them.”
“(1) Where the female is under the age of eighteen years, ... (3) Where she resists, but her resistance is overcome by force or violence. (4) Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution, or by any intoxicating, narcotic, or ansesthetic substance, administered by or with the privity of the accused.”
As we read the statute it enumerates a series of acts, either of which separately, or all together, so far as they are not in their nature inconsistent, constitutes the single offense of rape, and it is well settled that the information may charge in a single count the commission of the offense in any, or by conjunctive allegations in all, of the enumerated and not inconsistent ways.
In Bishop’s New Criminal Procedure (second edition, volume 1, page 354, section 436) the rule is clearly and forcibly stated as follows:
“ A statute often makes punishable the doing of one thing or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction ‘and’ where the statute has ‘or,’ and it will not be double, and it will be established at the trial by proof of any one-of them.”
“When a statute enumerates several acts in the alternative, the doing of any of which is subjected to the same punishment, all of such acts may be charged cumulatively as one offense. And where the statute provides in the alternative several means by which the offense may be committed, or where the intent or purpose is set out in several aspects disjunctively, they may all be charged in setting out one and the same offense.”
The text is abundantly supported by the decided cases. In State v. Adams, 41 Wash. 552, 83 Pac. 1108, the information charged that—
The defendant “did unlawfully, feloniously and forcibly, and against her will, ravish and carnally know, Maud Stephey then and there being a female child under the age of eighteen years, to wit, of the age of. seventeen years. ’ ’
The Supreme. Court of Washington, in reversing a judgment sustaining a demurrer to the information, on the ground that it charged more than one offense, said:
“The statute defines but one crime and prescribes but one penalty therefor. Where a statute provides that a crime may be committed in different ways or by different means, thé act constitutes but a single offense, whether one or all of the ways and means be employed in its commission, and it is proper to charge in an information that the crime was committed in one of the" ways or by one of the means specified in the statute, or in all the ways and by all the means conjunctively.”
In People v. Gusti, 113 Cal. 177, 45 Pac. 263, the court said:
“It is a well-settled rule of law'that ‘when a statute enunciates a series of acts, either of which separately or all together may constitute the offense, all
The same principle is announced in the following cases: State v. Meyerkamp, 82 Wash. 607, 144 Pac. 942; People v. O’Brien, 130 Cal. 1, 62 Pac. 297; Fahnestock v. State, 102 Ind. 156, 1 N. E. 372; State v. Hann, 73 Minn. 140, 76 N. W. 33; Commonwealth v. Lowe, 116 Ky. 335, 76 S. W. 119; Cooper v. State, 22 Tex. App. 419, 3 S. W. 334.
We construe the information in the present case as charging a single offense, namely, statutory rape, alleged to have been committed upon the prosecutrix by overcoming her resistance by the means and ways enumerated in the statute, i. e., by force and use of intoxicating liquor and by threats and fears. The means and ways alleged to have been employed by the defendant in the commission of the alleged offense are not inconsistent or repugnant. They may all ex7 ist in a case of statutory rape, and if the evidence of the prosecutrix is true, at least two of the means or ways did exist in the present case. But one offense is denounced by the statute and only one punishment is prescribed. We do not think that there was any error in overruling the demurrer.
The defendant excepts to a question asked the witness Wykoff. The question objected to was as follows: “You may state briefly, without going into details, what complaint was made.” The defendant objected to the question, but his objection was overruled; the court saying to the witness: “You may state what the complaint was, but avoid all details of any nature.” The witness answered: “The complaint was made of an assault upon her that morning. May I state the names given of the assaulting par
The defendant complains of the ruling of the court refusing to permit the prosecutrix, while she was upon the stand as a witness, to be crossrexamined relative to former alleged acts of unchastity by her and as to whether or not she had formerly lived in houses of prostitution. Aside from any question as to whether the interrogatories propounded to the prosecutrix, were' proper cross-examination, we are convinced that the objection of counsel for the state, to the testimony sought to be elicited, was properly
“The witness Ah Wah testified that she was the wife of the deceased. . . . The defense attempted to prove that she had been an inmate of a house of prostitution. The evidence was inadmissible. Such matters were entirely collateral, and her veracity could not be impeached in that way.” . ,
To the same effect are the cases: State v. Rash, 27 S. D. 185, Ann. Cas. 1913D, 656, 130 N. W. 91; State v. Fournier, 68 Vt. 262, 35 Atl. 178; State v. Hobgood, 46 La. Ann. 855, 15 South. 406.
In the case of People v. Johnson, 106 Cal. 289, 39 Pac. 622, the court said:
“The prosecuting witness is under the age of consent, and for this reason evidence either of general reputation or specific acts would seem to be immaterial. This class of evidence is admissible for the purpose of tending to show the nonprobability of resistance upon the part of the prosecutrix. For it is certainly more probable that a woman who has done these things voluntarily in the past would be much more likely to consent, than one whose past reputation was without blemish, and whose personal conduct could not truthfully be assailed. In other words, this class of evidence goes to the question of consent only and in a case like the present the question of consent is not involved. . . . Sound reason declares that such a necessity must be the rule. If this class of evidence was admissible as going to the credibility of the testimony of the prosecutrix in its entirety, then it would be equally admissible as
In People v. Abbott, 97 Mich. 484, 37 Am. St. Rep. 360, 56 N. W. 862, an identically similar issue was presented; the court in that case saying:
“The ruling of the court in the present case excluded the inquiry as to whether she had had sexual intercourse with other men prior to that time, and was correct for the reasons given in People v. Glover, supra. . . . The court was not in error in excluding the evidence. ... If the girl had been of the age of consent, it might be competent to admit evidence of her general reputation for chastity, as bearing Tipon the probability of her story, but specific acts of unchastity could not be inquired- into. . . . But here the law conclusively presumes that the.girl could not give her consent, and every act of intercourse with her would be a crime committed against her, and such acts could not, therefore, affect her credibility.”
The proposition is too firmly established to be disputed that in trials for the crime of statutory rape the question of the chastity of the prosecutrix-is entirely immaterial either to prove her consent or to impeach her credibility. Courts are virtually in accord upon the question. Plunkett v. State, 72 Ark. 409, 82 S. W. 845; People v. Benc, 130 Cal. 159, 62 Pac. 404; People v. Harlan, 133 Cal. 16, 65 Pac. 9; State v. Anthony, 6 Idaho, 383, 55 Pac. 884; State v. Blackburn (Iowa), 110 N. W. 275; People v. Glover, 71 Mich. 303, 38 N. W. 874; State v. Whitesell, 142 Mo. 467, 44 S. W. 332; State v. Hilberg, 22 Utah, 27, 61 Pac. 215.
The defendant contends that the testimony relative to the character of the prosecutrix for chastity was admissible for the purpose of rebutting the testimony of the state tending to show that the defendant and his codefendants conspired to arrest the prosecutrix
Error is assigned upon the statements of the prosecuting officer, made in his argument to the jury. It will serve no useful purpose to outline the argument, as it appears in the record. Sufficient to say that it is perilously near the line of reversible error and it is couched in language which does not meet with our
We find no reversible error in the charge of the court to the jury. The woman alleged to have been raped testified positively that the accused had carnal knowledge of her at the time charged in the information. Her testimony in that respect was not controverted. It was clearly shown that she was under the age of consent. There was, therefore, evidence, if credible, to warrant the verdict, and of course the credibility of the woman was wholly a question for the jury. We cannot interfere with the verdict. Nor are we authorized to reverse because of the severity of the sentence.
The judgment of conviction must be affirmed.
BOSS, O. J., and McALISTEB, J., concur.