Appeal from Superior Court, Maricopa County; Harold R. Scoville, Judge.
Frank Carter and Christine Griffith were convicted of statutory rape, and they appeal.
Stockton & Karam and Wilmot W. Trew, all of Phoenix (Laurens L. Henderson, of Phoenix, of counsel), for appellants.
John L. Sullivan, Atty. Gen., John W. Rood, Chief Asst. Atty. Gen., and Francis J. Donofrio, Co. Atty., and Warren L. McCarthy, Deputy Co. Atty., both of Phoenix, for appellee.
La Prade, Justice. Stanford, C. J., and Udall, J., concur.
La Prade, Justice.
[66 Ariz. 13] The appellants, defendants below, were found guilty by a jury of the crime of statutory rape and judgment followed. Each of defendants was sentenced to be confined in the Arizona State Prison at Florence for a period of not less than twenty and not more than twenty-five years. The evidence presented to the jury shows a very sordid state of affairs. The testimony discloses
that defendant Frank Carter had used the prosecutrix, a girl of fifteen years, as his mistress for approximately three years prior to the offense charged in the information. The specific act was alleged to have occurred on January 12, 1946. Defendant Christine Griffith, mother of prosecutrix Betty Griffith, was convicted on the theory that she aided, abetted, and assisted in the commission of the offense by Frank Carter. Defendants for a period of years had been living together as husband and wife, though not married, their residence being a small frame house near Tempe, Arizona. The house was divided into four rooms without any doors; cloth curtains were hung in lieu of doors. The walls were so thin that it was possible to hear the slightest noise emanating from any particular room. A Mrs. Zam, an adult woman, was temporarily residing in the home with defendants and prosecutrix, and was present in the house when the offense occurred. On the evening in question prosecutrix testified that she was called by Frank Carter to his bedroom. She pretended that she did not hear him. After repeated calls, defendant Christine Griffith came into Betty's bedroom and admonished her to heed Frank's call. The transcript of evidence is replete with testimony to the effect that Christine not only knew of the act on this particular night, but had frequently theretofore coerced her daughter into repairing to the bed of Frank Carter so that he might accomplish an act of sexual intercourse with her. Such was the common course of conduct in this household. [66 Ariz. 14] We see no occasion to recite all the lurid details contained in the record. Suffice it to say that this brief summarization of the facts is amply supported by direct testimony and corroborating circumstances.
These conclusions as to the sufficiency of the evidence dispose of Frank Carter's ground of appeal claiming error on the part of the trial court in denying his motion for a directed verdict at the conclusion of the state's case. Defendants did not avail themselves of the opportunity that was theirs to take the witness stand and deny the accusation. The daughter Betty testified that in the first instance she had been seduced by defendant Frank Carter. The mother later became aware of the demands of Carter to have access to the daughter. In this behalf the daughter attempted to excuse her mother by explaining that she and her mother had thus acceded to the demands of Carter on the ground that it was necessary to maintain any semblance of peace and quietude in the home. It appeared that Carter was very much addicted to the use of intoxicating liquor and for a good portion of each day was intoxicated. During these times he became very belligerent and abusive, which abuse often resulted in physical violence to Christine.
One of the grounds for appeal is that the sentences were excessive. The crime of rape under the statute, section 43-4901, A.C.A. 1939, may be accomplished under a number of different circumstances. By this section an act of sexual intercourse accomplished with a female under the age of eighteen years, not the wife of the perpetrator, is rape even though consented to by the female, and subjects the perpetrator to penal punishment. Ordinarily the word "rape" suggests force or violence. Forcible rape is an act of sexual intercourse accomplished with a woman against her will by force and violence. The essential element of guilt in such a situation is the outrage to the person and feelings of the female. Under our statute, section 43-4901, supra, both forcible rape and "consent" rape are punishable by imprisonment in the state prison for life or for any term of years not less than five.
The trial judge had opportunity to observe the defendants, their demeanor and attitude, and that of associates, relatives, and friends who appeared with them, some of whom testified. Had these observations been available to us, we might have concluded that defendants were not devoid of all refinement and had sufficient intelligence and character to realize the gravity of their offense. If such were the facts the trial judge might readily have assessed a severe punishment upon them. The cold record suggests that defendants were not immoral, but rather without morals, and unaware of their derelictions. Only the mother Christine Griffith knows the burdens she has had to bear. If these defendants are dullards and devoid of the ordinary concepts of decency and morals, it might be said that
the sentences are excessive. The law as [66 Ariz. 15] enacted by the people contemplates that no cruel or unusual punishment shall be visited upon anyone, including a person ignorant of the commonly accepted code of morals through no fault of his own and unaware of his nonconformity. Oftentimes such a person has to be confined for the protection of himself and society. Not having been present to observe these defendants, their relatives, associates, and friends, we are not in a position to say that the sentences are excessive, harsh, or unconscionable.
Defendant Christine Griffith also challenges the sufficiency of the evidence to sustain her conviction. We see no merit in this contention for what we have already said disposes of it. As additional ground for appeal she contends that a female cannot be convicted of the crime of rape, this upon the theory that only a male can have sexual intercourse with a female. The answer to this contention is that by section 43-116, A.C.A. 1939, the distinction between principals and accessories before the fact has been abolished. Elliott v. State, 19 Ariz. 1, 164 P. 1179; Browning v. State, 53 Ariz. 174, 87 P.2d 112. Now all persons concerned in the commission of a crime whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or not being present aid, advise, and encourage its commission, are principals in any crime so committed. Section 44-1107, A.C.A. 1939, provides that "* * * All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall be prosecuted, tried and punished as principals, * * *." These provisions render our law in accord with the general rule that "a woman who aids, assists, procures, or counsels a man in the commission of rape is guilty of the offense, either as a principal in the first or second degree, or accessory before the fact." 5 A.L.R. 782, at page 785, and cases cited therein. See also 44 Am.Jur., Rape, section 33.
Defendant Christine Griffith, as one ground of her appeal, seriously contends that the court erred in its instruction relative to those who might be convicted as principals on the theory that they aided and abetted in the ...