[78 Ariz. 20] William C. Fields, Jack C. Cavness, Phoenix, for appellant.
Ross F. Jones, Atty. Gen., R. Dean Burch, Sp. Asst. Atty. Gen., for appellee.
PHELPS, Chief Justice.
Defendant Carl Laney was by the first count of an information filed by the prosecuting attorney of Maricopa County on January 11, 1952, charged with the crime of carnally knowing a female child under the age of 18 years, not his wife, which is known under the law as statutory rape. The information charged the crime to have been committed in Maricopa County on or about August 23, 1951. By the second count of the information, defendant was charged with the crime of incest. Under this count it is alleged that on or about August 23, 1951, in Maricopa County defendant had sexual intercourse with his niece. She, for obvious reasons, will be hereinafter referred to as the prosecuting witness, and not by name.
Defendant entered a plea of not guilty to each of the above counts. The cause came on for hearing before the court and jury on June 16, 1953. At the close of the state's case in chief, defendant moved for an instructed verdict on Count II of said [78 Ariz. 21] information charging the crime of incest upon the ground that the prosecuting witness was an accomplice in the commission of the crime of incest and that her testimony had not been corroborated as required by law, under the provisions of section 44-1819, A.C.A.1939. This motion was denied. At the close of defendant's case, the defense renewed its motion for an instructed
verdict on the same grounds. The motion was again denied by the court.
The court, in due course, submitted the cause to the jury and the jury returned a verdict of not guilty of statutory rape as charged in Count I and guilty of incest as charged in Count II of the information. From this verdict and judgment entered thereon, defendant appeals.
We have been presented with two assignments of error which raise two questions of law for our consideration: the first question is as to the sufficiency of the evidence to sustain the verdict. This is predicated upon the claim of defendant that the prosecuting witness in this case is an accomplice in the commission of the crime of incest alleged in the second count of the information and that under the law her testimony must be corroborated by other evidence in accordance with the provisions of section 44-1819, supra, before a conviction thereon can be upheld.
If the prosecutrix here is an accomplice in the commission of such crime the position of defendant must be sustained, otherwise it may not be. It will first be necessary to examine the statutes relating to the subject matter involved in this case in order to get a proper perspective of the law.
Section 43-405, A.C.A.1939, provides that:
'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 by imprisonment in the state prison not exceeding ten (10) years.'
Section 63-107, A.C.A.1939, provides that:
'* * * 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. * * *'
Section 43-4901, A.C.A.1939, provides insofar as we are concerned in the instant case that:
'Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under any of ...