APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. C. H. Young, for Appellant.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Respondent.
[55 Ariz. 44] McALISTER, J.
Appellant was convicted of the crime of assault with intent to commit rape, and from a judgment of conviction and an order denying his motion for a new trial he appeals.
The first error attacks the sufficiency of the information, the charging portion of which reads as follows:
"The said Arthur Moore on or about the 20th day of March, 1939, and before the filing of this information at and in the county of Maricopa, State of Arizona, did then and there, wilfully, unlawfully, feloniously, violently and forcibly make an assault upon one Ida Mae Clark, a female not then and there the wife of the said Arthur Moore, with the intent then and there, feloniously and by force and violence, to carnally know and ravish the said Ida Mae Clark, and accomplish with her an act of sexual intercourse, against her will and without her consent, that the said Arthur Moore is an adult male person."
No demurrer to this information was interposed, but after conviction its sufficiency was questioned in the motion for a new trial and in arrest of judgment made upon the ground that it fails to charge "all of the elements entering into the statutory description of the offense" under section 4596, Revised Code of 1928, which, so far as pertinent here, reads as follows:
"Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under [55 Ariz. 45] any of the following circumstances: Where the female is under the age of eighteen years;... where she resists, but her resistance is overcome by force
or violence; where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution,... "
It is insisted that the information does not state the offense of assault with intent to commit rape because it does not allege the acts constituting the assault and that the prosecutrix resisted those acts. It is argued that the words, "wilfully, unlawfully, feloniously, violently and forcibly" do not show the means used to effect the rape, and that respondent is not permitted to charge an assault generally and let the testimony fill out and complete the information. In support of this view, appellant cites Daggs v. Territory, 11 Ariz. 446, 94 P. 1106, in which it was held that an indictment very similar to that in this case did not state the offense of assault with intent to commit rape because it failed to charge that the intent was to accomplish the act without the prosecutrix' consent and against her resistance. However, this holding was in effect overruled a year later in High v. Territory, 12 Ariz. 146, 100 P. 448, 449, when the court held that an indictment for assault with intent to commit rape in practically the same language as that in the Daggs case and the information in this one was not defective for failure to charge sufficiently an assault, since the doing of an overt act is necessarily included in an attempt to commit a violent injury. It used this language:
"... It is contended by counsel for appellant that the indictment is bad, in the first place, because the assault is not sufficiently alleged; and, in the second place, because there is no allegation that actual force or violence was done or attempted, or that any overt act was committed in furtherance of the alleged intent of the defendant. There is necessarily included within [55 Ariz. 46] every assault, as defined by our statute, the idea of the doing of some overt act in the carrying out of an attempt to commit some violent injury to the person of another. This court has held that in an indictment charging an aggravated assault it is not necessary to specifically set forth all the elements of the assault contained in the statutory definition. Mapula v. Territory, 9 Ariz. 199, 80 P. 389.... It is, as we have said in Mapula v. Territory, upon the theory that the term 'assault' has a precise and definite meaning given by statute, and also by 'usual acceptance in common language,' and that its use in this way is authorized. Section 831, Pen. Code 1901.
"Although the point has not been decided by us or, so far as we have been able to discover, by the Supreme Court of California, yet, following out the logic of the Mapula Case and of analogous California cases, if the specific acts constituting the assault need not be alleged in an indictment charging an aggravated assault or one charging an assault with a deadly weapon or one charging an assault with intent to murder, we see no reason why the like generalization may not be made in the case of an indictment charging an assault with intent to commit rape. As we have said, one of the essential elements of an assault being some overt act of attempted physical violence, the charge in the indictment that the defendant committed an assault upon Leona Marshall includes by implication the charge that such overt act was done by him. The facts pleaded in the indictment in this case show that the crime of rape would have been committed if the alleged intent of the defendant had been ...