[90 Ariz. 186] Jose del Castillo, Tucson, for appellant.
Robert W. Pickrell, Atty. Gen., harry Ackerman, County Atty. of Pima County, and Arthur R. Buller, Deputy County Atty., for appellee.
Defendant, Arnold Ballesteros Navarro, appeals from a conviction of and a five to six year prison sentence for the rape by deception of one Dora Alice Gonzales. This case is one of first impression in Arizona in that in involves the first conviction obtained under A.R.S. § 13-611, subd. 6 (1956) which defines the crime of rape to include the situation:
'Where the female submits under a belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense or concealment practiced by the accused with intent to induce such belief.' 
The incident in question occurred in the early morning hours of Sunday, December 4, 1960, at the Tucson one-bedroom apartment of the complaining witness and her husband of one month, Charlie Gonzales. After working all day Saturday as a saleswoman at Levy's Department Store in Tucson, Dora Gonzales returned home to prepare supper for her husband and his cousin, Armanda Gonzales. Feeling tired after supper she retired to the bedroom about 9:00 or 9:30 p. m. to read several magazines before going to sleep. This coincided with the arrival of defendant and two others, Martin Rivera and Tommy Bracamonte.
The five young men then began an evening of drinking beer while watching TV, [90 Ariz. 187] playing the guitar, etc. At approximately 12:30 or 1:00 a. m., Dora got up and prepared coffee for the men, with the exception of Bracamonte who had left earlier. She then returned to the bedroom and went to sleep.
The next thing Dora Gonzales remembered was waking from a sound sleep (sometime between 2:00 and 3:30 a. m.) with defendant on top of her attempting to have sexual intercourse with her. Believing defendant to be her husband she submitted to him. In a matter of seconds, however, she became aware that he was not her husband  and cried out asking who he was. He covered her mouth with his hand and told her who he was and not to scream. When she cried and resisted further defendant bolted from the house, leaving his T-suirt and leather jacket behind.
The complaining witness, hysterically crying defendant's name, ran to the living room where she awakened her husband from a drunken stupor. At her request he drove her to his mother's house where Dora sobbed out the details of her experience to the mother.
On December 5, 1960 a warrant for defendant's arrest was issued; three days
later, however, he voluntarily appeared at the police station and gave them a detailed statement. In this statement, later admitted in evidence at the trial with no question raised as to voluntariness, defendant's version of the events of December 4, 1960, was the same as that of the complaining witness. 
[90 Ariz. 188] At the trial the complaining witness, her husband, and his mother testified to the events above related. Defendant's statement was then admitted in evidence. And later at the trial, on cross-examination by the county attorney, defendant admitted having had intercourse with Dora Gonzales on the night in question. R.T. 143.
On appeal defendant's nine assignments of error comprise but two basic contentions. The first is that defendant was denied an opportunity to be heard in the due process sense on his motion to quash the information.
Defendant's written motion to quash was submitted to the court on January 18, 1961. A memorandum in opposition thereto was filed by the county attorney on January 23, 1961, and the motion was denied on February 1, 1961. Defendant argues that he was improperly denied an opportunity to present oral argument and other evidence in support of his motion. This argument is ...