Browning v. State, Criminal 867

• Decision Date: 13 February 1939
• Docket Number: Criminal 867
• Citation: 87 P.2d 112,53 Ariz. 174
• Parties: JERRY BROWNING, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

87 P.2d 112

53 Ariz. 174

JERRY BROWNING, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 867

Supreme Court of Arizona

February 13, 1939

APPEAL from a judgment of the Superior Court of the County of Maricopa. E. G. Frazier, Judge. Judgment affirmed.

Mr. V L. Hash, for Appellant.

Mr. Joe Conway, Attorney General, and Mr. W. E. Polley and Mr Charles Bernstein, Assistant Attorneys General, for Respondent.

OPINION

ROSS, C.J.

Defendant Browning and one William G. Tripp were jointly informed against for the crime of rape. Defendant demanded and was given a separate trial and at such trial was convicted. He appeals on a number of grounds hereafter stated.

The charging part of the information reads:

"The said William G. Tripp and Jerry Browning on or about the 18th day of May, 1938, and before the filing of this information at and in the County of Maricopa, State of Arizona, did then and there, wilfully, unlawfully and feloniously, and by force and violence, have and accomplish an act of sexual intercourse, with and upon one Mrs. N. J. Bisanz, a female person, who was not then and there the wife of said defendants, without the consent and against the will of the said Mrs. N. J. Bisanz, and she, the said Mrs. N. J. Bisanz then and there resisted the accomplishment of said act of sexual intercourse, but her resistance was then and there overcome by force and violence used upon and against the said Mrs. N. J. Bisanz by said defendants;..."

The defendant contends his demurrer to the information should have been sustained. The defects complained of were that it could not be determined from the allegations of the information that the prosecutrix was not the wife of the defendant nor whether he was charged as a principal or an accessory in the commission of the crime.

It is necessary that an information charging rape should negative the existence of the relation of husband and wife between the defendant and the victim. Section 4596, Rev. Code 1928. This, defendant claims, was not done by the allegation that Mrs. Bisanz "was not then and there the wife of said defendants." This allegation negatives what legally cannot be under our laws. A woman may not have two husbands any more than a man can have two wives. Polyandry is not recognized under our laws. But it is said by defendant that to state that Mrs. Bisanz was not the wife of defendants is not equivalent to denying that she was the wife of one of the defendants. The pleader evidently had no thought of denying that she was a bigamist but, rather, that she was not married to either of the defendants. The words in an indictment or information are to be "construed in their usual acceptance in common language." Section 4981, Id. We think the ordinary person would construe the words "not the wife of the defendants" to mean that she was not the wife of either of the defendants. The negation of the marital relation, if accepted in its usual sense, cannot reasonably bear the construction contended for. The denial in the information of the marital relation between the prosecutrix and the defendant is greatly aided from the fact that her name is not Browning or Tripp but Mrs. N. J. Bisanz.

We think the information complies with the statutory requirements and that the act constituting the offense

"is clearly and distinctly set forth in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, and as to enable the court to pronounce judgment upon a conviction, according to the right of the case." Section 4982, Id.

It would be rather technical to hold that the information does not show on its face that defendant was not the husband of the prosecutrix.

It was not necessary to set out in the information the facts showing whether the defendant was an accessory before the fact or a principal in the crime charged, since under our statutes all persons, whether they directly commit the act constituting the offense or aid and abet in the commission, are principals. Sections 4491, 4992, Id; Hunter v. State, 47 Ariz. 244, 55 P.2d 310; Trimble v. Territory, 8 Ariz. 281, 284, 71 P. 934, 935. In the latter case the court said:

"... If there ever existed any basis in good reason for distinguishing between the moral turpitude of one whose will procures the commission of a crime, and the agent who willfully carries out the malignant purpose, there is now a clear recognition in the law of the principle that all persons whose will has contributed to the doing of a criminal act are equally guilty of that act, by whomsoever perpetrated. All are deemed chief actors, and the statute expressly provides that they 'shall hereafter be prosecuted, tried and punished as principals, and no other facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal.' Being declared by the law to be principals, they must be indicted as principals, or not at all...."

The next question arises out of the evidence. The prosecutrix testified that both the defendant and Tripp had sexual intercourse with her, and Tripp, who was a witness for the state against defendant, corroborated her. Clearly, therefore, there was evidence of two crimes having been committed, one by defendant and one by Tripp, against whom separate informations could have been laid and, defendant insists, should have been laid. The statute, section 4980, provides that "The indictment or information must charge but one offense" and on its face the information here is drawn in conformity with this provision. However, when the evidence disclosed that defendant, and also Tripp, who was jointly charged in the information with defendant, had each had carnal knowledge of the prosecutrix without her consent and against her will, we think the state, on a proper request or motion by the defendant, might have been required by the court to elect upon which charge it would go to the jury. This seems to be the rule laid down by the court under a similar situation in Thweatt v. State, 49 Tex. Cr. Rep. 617, 95 S.W. 517, 518. There the court said:

"... But the question here involved is, not the joining of different means of committing the same offense, but the information sets out different offenses in the same court -- offenses shown to have occurred between different parties. Upon the development of the facts, this was made clearly to appear. Where the indictment does not show that they are different offenses or different transactions in the same court, but embraced within the general definition of the statute, then perhaps the motion to quash might not be entertained; but, if the pleadings show that they are different offenses and different transactions in the same count, then the motion to quash should be sustained. But even where the averments would not sustain the motion to quash under those circumstances, still when the evidence is introduced, and it is made to appear that the transactions are distinct and under different circumstances than those charged, and occurring at different times and places, the motion to elect should be sustained."

The defendant contends that at the close of plaintiff's case he requested that the plaintiff be required to elect, but we have carefully examined his motion and in it there is not a suggestion of election. He asked for a directed verdict

"on the ground that the state has wholly failed to make out a case sufficient to be taken to the jury and on the further ground the testimony of the state is so contradictory... as to render the evidence wholly insufficient to go to the jury."

So, if the defendant was entitled to have the state elect on which act it would ask for a conviction, he failed to exercise that right in proper manner or time.

The trial was had in June, 1938, beginning on the 8th day. The offense was charged to have been committed on May 18th. A photograph of the prosecutrix taken on May 19th between 9 A.M. and 12 M. was introduced in evidence over defendant's objection. The grounds of the objection were (1) that the photographer had not testified the photograph was a correct portrayal of the prosecutrix at the time of the assault, and (2) that the photograph showed prosecutrix had a bandage on her face. The photographer testified that the photograph was a faithful portrayal of the prosecutrix' appearance at the time he took it, some ten or twelve hours after...