Callaghan v. State
| Decision Date | 25 February 1916 |
| Docket Number | Criminal 375 |
| Citation | 17 Ariz. 529,155 P. 308 |
| Parties | JOSEPH CALLAGHAN, Appellant, v. STATE, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Mohave. John A. Ellis, Judge. Affirmed.
Mr Ross H. Blakely, for Appellant.
Mr Wiley E. Jones, Attorney General, for the State.
The defendant was convicted of the crime of rape, perpetrated upon a girl under the age of 18 years; that is to say, a girl the law presumes is too young to give her consent to the sexual act. The appeal is from the judgment of conviction and an order denying a motion for a new trial.
The defendant complains that the information upon which he was tried is bad because it charges two offenses, namely, assault and rape; and that if his contention in this behalf be not sustained, he urges that the information states no offense at all. So far as material to the discussion (except the name of the prosecuting witness, which we shall omit) the information states that the defendant Joseph T. Callaghan "did then and there willfully, unlawfully, and feloniously make an assault upon one , and then and there, willfully, unlawfully and feloniously did ravish and carnally know her, the said , she, the said , not then and there being the wife of the said Joseph T. Callaghan, and she, the said , being then and there a female under the age of 18 years, to wit, of the age of 9 years."
Under the Penal Code of this state an act of sexual intercourse with a female under 18 years of age, and not the wife of the perpetrator, whether accomplished by force or with her consent, is rape. Section 231, Penal Code 1913. The statute also denounces as a crime the act of every person who assaults another with intent to commit rape. Section 194, Penal Code 1913. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. Section 207, Penal Code 1913. A battery is any willful and unlawful use of force or violence upon the person of another. Section 209, Penal Code 1913. If an assault is committed by an adult male upon the person of a female or child, it is denounced as an aggravated assault. Section 215, Penal Code 1913. These provisions of the law have been quoted that stress may be laid upon the risk which a lecherous man runs in the gratification of, or an attempt to gratify, his unlawful lust with a young girl not his wife. Any act of sexual intercourse with such a female is without her consent, because she is deemed in law incapable of such consent, and the sexual act with her must necessarily involve the element of assault and violence, even though she yielded voluntarily to her shame. An injury to her person more violent than the rape of a young girl -- her defloration and ruin -- is impossible. She is protected, not only from the passion of men but from her own frailty -- not only from an accomplished act of seduction, but from all the defiling acts of the seducer that may lead to her destruction. It is the voice of society echoed in the statute law of this state, that the bloom of her virtue and innocence outweigh all other considerations, and must be preserved even though a temporary weakness or want of understanding on her part invite to ruin. He who would yield to the temptation to destroy the innocence of a young girl must take the penalty coupled with the act.
If sexual intercourse is attempted with a female under 18 years of age, no matter whether it be with her consent or without it, the felonious intent is present on the part of the male. If such an attempt is accompanied by some act "that can be fairly, according to human experience, characterized as having an immediate relation to and preparation or the bringing about of a condition under which intercourse could be accomplished," it is an assault with intent to commit rape. The felonious intent existing, there may not be a touching of the person of the female.
"If under the law, a female under 12 [18] years of age is incapable of giving her consent to the act of sexual intercourse, then she is equally incapable of consenting to all familiarity with her person that necessarily precedes the consummation of the act." State v. Fujita, 20 N.D. 555, Ann. Cas. 1913A, 159, 129 N.W. 360.
" . . . If the assault was made under such circumstances that the act of sexual intercourse, if it had been accomplished, would have been a rape, then the accused is guilty of assault with intent to commit rape." Ann. Cas. 1913A, 163, and cases cited.
The information does not charge two offenses. The offense of rape only is charged, but under its allegations the defendant could have been convicted of an assault with intent to commit rape. Whenever sexual intercourse is consummated with a girl under the age of consent, it is considered as rape, and it is held, with perhaps but few exceptions, that an attempt to have such connection is an assault with intent to commit rape; the consent of the female being wholly immaterial. Liebscher v. State, 69 Neb. 395, 95 N.W. 870, 5 Ann. Cas. 351, and cases cited in the note. The charging of an assault in the information is unnecessary as the law implies it. The information would have been perfectly good without the allegation of an assault. It would have been necessary in an information where the prosecutrix was over 18 years of age, but the rule is different where the prosecutrix is under the age of consent. The crime of assault is not charged independent of the charge of rape, but only as it is included in the crime of rape. State v. Elswood, 15 Wash. 453, 46 P. 727; State v. Horne, 20 Or. 485, 26 P. 665.
The information charges statutory rape, and the charge is clearly and distinctly set forth in ordinary and concise language and in such a manner as to enable a...
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State v. Munoz, 2
...consent to the act of intercourse, she cannot consent to an assault where the intent was to have sexual intercourse. Callaghan v. State, 17 Ariz. 529, 155 P. 308 (1916). See also Allison v. United States, 133 U.S.App.D.C. 159, 409 F.2d 445 (1969); State v. McDaniel, 204 N.W.2d 627 (Iowa 197......
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State v. Superior Court of Pima County
...held not to absolve the accused of criminal responsibility for the act. See State v. Brady, 66 Ariz. 365, 189 P.2d 198; Callaghan v. State, 17 Ariz. 529, 155 P. 308. We do not assume the Legislature was unaware of our holdings and, therefore, by re-enacting the statute in substantially the ......
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State v. Carrillo
...by the acts of sexual touchings. This activity manifested preparation for a more violent type of injury. Cf. Callaghan v. State, 17 Ariz. 529, 155 P. 308 (1916). Defendant also argues that the trial judge erred in refusing to permit the defendant to ask Tamara Dana the following question: '......
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...rape is refuted by a long-standing line of Arizona cases. E. g., State v. Brady, 66 Ariz. 365, 189 P.2d 198 (1948); Callaghan v. State, 17 Ariz. 529, 155 P. 308 (1916); State v. Munoz, 114 Ariz. 466, 561 P.2d 1238 (App.1976). These decisions unequivocally hold that a second degree rape inst......