Appeal from Superior Court, Maricopa County; Edwin Beauchamp, Judge.
Raymond Martinez and others were convicted of forcible rape and of simple assault, and they appeal.
Albert M. Garcia and James H. Garcia, both of Phoenix, for appellants
Evo De Concini, Atty. Gen., and Edward Jacobson, Asst. Atty. Gen., for appellee.
Stanford, Chief Justice. LaPrade and Udall, JJ., concur.
Stanford, Chief Justice.
[67 Ariz. 391] In four counts set forth in an information filed by the county attorney of Maricopa County each of the defendants (appellants) were charged in count I with the crime of forcible rape of prosecutrix Mary Villalobos; count II with robbery of one Nicholas Trujillo; count III for forcible rape of prosecutrix Betty Martinez; count IV for aggravated assault upon aforesaid prosecutrix Mary Villalobos. After pleas of not guilty to each count were entered, trial was had and all four defendants were found guilty by the jury of rape on count I and simple assault (an included offense) under count IV. Sentence was imposed by the trial court on each of the defendants to serve a term of not less than seven nor more than ten years in the Arizona State Prison on count I, and to time served in county jail (85 days) on count IV.
From the aforesaid judgment and sentence appeal has been brought to this court.
The facts of the case are that about 9 p. m., on the evening of June 27, 1947, defendants (one of whom was under 18 years of age and two were under 21 years of age) approached one Frances Almeda while she was walking west on Lincoln Street in Phoenix, being a street south of the railroad tracks. She was asked where she was going and when she ignored the question the defendants grabbed her, took her money, beat her, and started dragging her in the direction of what is known as "Lincoln School grounds" in said city, but observing a couple walking near the scene the defendants fled. On the same evening prosecutrix Mary Villalobos was returning from work when one of the defendants approached her and told her that her husband was at the Lincoln School grounds with another woman. Upon her denial of the statement one of the defendants struck her with his fist, and the four defendants dragged her to the Lincoln School grounds. She was given a severe beating and lost consciousness. She was found in an unconscious condition and completely naked by two officers who came upon the scene shortly thereafter. All four defendants, as well as Betty Martinez and her escort Nicholas Trujillo, were present when the officers arrived. This couple had been brought previously to the school ground by the defendants, one of whom was in the act of sexual intercourse with prosecutrix Betty Martinez when the officers appeared. Her escort Nicholas Trujillo [67 Ariz. 392] claimed that he had been robbed by defendants by putting him in fear of his life.
Further facts will be disclosed as our opinion continues.
Defendants offer as their four assignments of error, the following:
"1. The court erred in allowing the witness Frances Almeda to testify over appellants' objection relative to an attempt by appellants to rape ...