Appeal from Superior Court, Pinal County; W. C. Truman, Judge.
Nathan L. Haston was convicted on eight counts charging incest, assault with intent to commit incest, statutory rape, and assault with intent to commit rape, and he appeals.
George D. Locke and Terrence A. Carson, both of Phoenix, for appellant.
John L. Sullivan, Atty. Gen., and Earl Anderson, John W. Rood, and Burr Sutter, Asst. Attys. Gen., for appellee.
Stanford, Chief Justice. LaPrade and Morgan, JJ., concurring.
Stanford, Chief Justice.
[64 Ariz. 74] Defendant was charged by information with the commission of eight felonies designated by eight counts. Count No. 1 charges the crime of incest was committed on or about January 15, 1945, with Anna Bell Haston, fourteen years of age, daughter of defendant. Count No. 2 charges the crime of incest January 18, 1945, with the same person, Anna Bell Haston. Count No. 3 charges the crime of assault with intent to commit rape on or about December 18, 1944, with Maxine Haston, eight years of age, daughter of defendant. Count No. 4 charges the crime of assault with intent to commit incest on or about December 18, 1944, with said Maxine Haston. Count No. 5 charges the crime of assault with the intent to commit rape on or about July 1, 1942, upon Helen Garrett, fourteen years of age, daughter of defendant. Count No. 6 charges the crime of assault with the intent to commit incest on or about July 1, 1942, with said Helen Garrett. Count No. 7 charges the crime of statutory rape on or about January 15, 1945, with said Anna Bell Haston. Count No. 8 charges the crime of statutory rape on or about January 18, 1945, with said Anna Bell Haston.
The law of our state relating to certain offenses charged in the information is as follows:
Sec. 43-405, A.C.A.1939, relates to a person who may be guilty of the crime set forth in counts 1, 2, 4 and 6: "Incest. -- Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable * * *."
Sec. 63-107, A.C.A.1939, in reference to prohibited and void marriages is as follows: "The marriage of persons of Caucasian blood, or their descendants, with Negroes, Hindus, Mongolians, members of the Malay race, or Indians, and their descendants, shall be null and void. The marriage between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the one-half as well as of the whole blood, and between uncles and nieces, aunts and nephews, and between first cousins, are incestuous and void. Children born out of wedlock, or the relations thereof, are included within the prohibition."
Counts 3, 5, 7 and 8 are based on the following part of Sec. 43-4901, A.C.A.1939:
"Rape defined -- Age limitation * * *. -- Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under any of the following circumstances:
"Where the female is under the age of eighteen (18) years; * * *."
[64 Ariz. 75] The statement of other circumstances under which rape may be committed are omitted as having no bearing on this case, the charge here being what is known as statutory rape, the act having been committed with a female person under the age of eighteen years and our law is that such a person does not have to resist, for our state resists for her.
The jury in this case returned a verdict against the defendant finding him guilty of all of the counts charged in the information. From the judgment of conviction and sentence rendered in the superior court, defendant has appealed to this court.
Defendant submits nine assignments of error covered by his following propositions of law:
"1. A conviction and sentence for statutory rape cannot be sustained upon the uncorroborated testimony of the prosecutrix where her story is so impossible and incredible ...