APPEAL from a judgment of the Superior Court of the County of Greenlee. Jesse A. Udall, Judge. Judgment affirmed.
Messrs. Rogge & Kingsbury, for Appellant.
Mr. Joe Conway, Attorney General, Mr. Albert M. Garcia, Assistant Attorney General, and Mr. Bryant W. Jones, County Attorney, for Respondent.
[55 Ariz. 443] McALISTER, J.
Appellant was convicted of an assault with intent to commit rape and from the judgment, as well as from the orders denying his motion for a new trial and refusing to arrest the judgment, he appeals.
Before entering his plea, the defendant moved to quash the information upon the ground that he had not been legally committed, for the reason that the evidence introduced by the state at the preliminary hearing did not show the commission of the offense of assault with intent to commit rape or in [55 Ariz. 444] fact establish any reasonable or probable cause for holding him on that charge. The denial of this motion is the first error assigned. It is sufficient to say of this contention that it is, under the great weight of authority, untenable. "A statute authorizing the setting aside of an information on the ground that defendant has not been legally committed by a magistrate," to use the language of 31 C.J. 804, paragraph 379, "does not authorize the information to be set aside on the ground of insufficiency of the evidence on a preliminary examination before the magistrate." Our statute on this question, section 5005, Revised Code of 1928, second paragraph, is identical with that of California and was evidently copied from it, and in People v. Beach, 122 Cal. 37, 54 P. 369, the court construed this section and its holding is summarized in this brief statement in the syllabus: "An information cannot be set aside on the ground that defendant has not been 'legally committed,' in that there was not evidence before the magistrate to show an offense, where evidence was heard by the magistrate." See, also, People v. Creeks, 170 Cal. 368, 149 P. 821.
In the second assignment complaint is made of the order overruling the demurrer to the information, the charging part of which reads as follows:
"The said Raymundo Ramirez on or about the 21st day of Augrst, 1939, and before the filing of this information, at the County of Greenlee, State of Arizona, did then and there willfully, unlawfully, feloniously and violently, commit an assault in and upon the person of another, to wit, Helen Latvala, a female, not the wife of him, the said Raymundo Ramirez, by then and there forcibly and with violence assaulting and attempting, with intent to rape her, the said Helen Latvala, to have and commit the act of sexual intercourse with her, the said Helen Latvala, and that the said Raymundo Ramirez was then and there an adult male person."
[55 Ariz. 445] The first two objections to this information are that it does not conform to the requirements of the statute as to definiteness and certainty and that the facts stated by it do not constitute a public offense. The information is a copy of that in Uren v. State, 27 Ariz. 491, 232 P. 398, which this court said sufficiently alleges the offense of assault with intent to commit rape. The term "assault" includes by implication some overt act of physical violence upon the person of another, and the rule as to definiteness and certainty does not require that the specific acts constituting the assault be alleged in an information charging an assault with intent to commit rape any more than it does in an information charging an aggravated assault, an assault
with a deadly weapon or an assault with intent to murder. High v. Territory, 12 Ariz. 146, 100 P. 448; Moore v. State, ante, p. 43, 97 P.2d 925; State v. Smith, 80 Mo. 516. Since the charge that the defendant committed an assault upon Helen Latvala implies necessarily the commission of an act of personal violence in furtherance of the intent to rape, the information, under the cases cited, is subject to neither of the objections urged against it.
It is further contended that if the information states an offense at all, it states two, namely, an attempt to rape under section 4896, Revised Code of 1928, the general attempt statute, and an assault with intent to commit rape as defined by section 4594, Id. This contention is based upon the word "attempting." It is clear from a reading of the information that, as here used, the pleader intended this word to carry the same meaning as the term "assaulting" appearing in connection with it, and that both were employed to convey the idea that the defendant committed some act of violence upon the person of Helen Latvala in furtherance of his intent to rape her. The offense, attempt [55 Ariz. 446] to rape, as distinguished from an assault with an intent to commit rape, exists under the statute but it is plain that the word "attempting" was employed here merely to strengthen the idea conveyed by the word "assaulting" upon the theory advanced by the authorities and as generally understood that "every assault with intent to rape is an attempt." 52 C.J. 1027, par. 36. However, the expression in which both "assaulting" and "attempting" appear, namely, "by then and there forcibly and with violence assaulting and attempting," was unnecessary and should have been omitted, and the same is true of one of the expressions, "to rape her, the said Helen Latvala" and "to have and commit the act of sexual intercourse with her, the said Helen Latvala." These express the same idea in different language and one of them would have been sufficient. The crime with which the defendant was accused would have been sufficiently alleged had the charging portion of the information read: "did then and there, willfully, unlawfully, feloniously and violently commit an assault in and upon the person of another, to wit, Helen Latvala, a female, not then the wife of him, the said Raymundo Ramirez, with the intent to rape her, the said Helen Latvala." This suggestion is made merely because the information in the Uren case, which was held good and served as a guide in this case, will probably, as a matter of safety, notwithstanding its useless verbiage, continue to be followed by county attorneys in drawing informations for the offense of assault with intent to commit rape, unless their intention is directed to its use of unnecessary language. The allegation that the defendant was an adult male person was indispensable if the prosecutor intended to ask for a conviction for an aggravated assault as an included offense upon the ground that the person assaulted was a female. Uren v. State, supra. [55 Ariz. 447]
The denial of defendant's motion for a directed verdict as to the charge of assault with intent to commit rape made at the close of the state's case upon the ground that the evidence introduced by it failed to prove the essential elements of that offense is assigned as error. The correctness of this ruling depends upon the evidence which was substantially as follows: The prosecuting witness, Helen Latvala, a young woman twenty-one years of age, testified that she was living alone in apartment No. 6 of the Teachers' Court in Morenci, Arizona, and at 3 o'clock on the morning of August 21, 1939, while she was in bed asleep the defendant entered her room, grabbed her by the throat and held her so tight that she could do nothing, not even talk; that he stood at the head of her bed and when she awoke made this statement to her: "Gonna throw a fuck into you"; that he did not say, "I'm going to" but just "gonna"; that after telling her this, he loosened his grip somewhat and kissed her but still held her with one hand; that when he slackened his hold sufficiently she screamed, and he immediately choked her again ...