Curby v. Territory of Arizona

• Decision Date: 23 December 1895
• Docket Number: Criminal 101
• Parties: JOSEPH CURBY, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

42 P. 953

4 Ariz. 371

JOSEPH CURBY, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 101

Supreme Court of Arizona

December 23, 1895

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. J. D. Bethune Judge.

Reversed.

Allen R. English, for Appellant.

T. D Satterwhite, Attorney-General, William Herring, of Counsel for Respondent.

Rouse, J. Baker, C. J., and Hawkins, J., concur. Bethune, J. concurring.

OPINION

Rouse, J.

Statement of facts

On May 18, 1894, an indictment was returned, accusing Joseph Curby of the crime of rape, committed January 14, 1894, on Laura Curby. To the indictment defendant demurred. The demurrer was overruled, and defendant entered a plea of not guilty. The trial was had May 24, 1894. A verdict of guilty was returned, and judgment pronounced thereon, by which defendant was sentenced to the penitentiary for life. Joseph Curby resided in a house at the limits of Tombstone. The nearest dwelling to his was one hundred and eighty-five feet away. He was a dealer in second-hand furniture, and had his place of business in the city of Tombstone. He owned an express-wagon, which he used in delivering goods and to ride in, in going to and from his place of business. Laura Curby, the prosecutrix, resided in San Francisco until the first part of the year 1893, when she took up her residence with the defendant. She worked at a dressmaker's in Tombstone for about six months just prior to the date when defendant was arrested. She kept defendant's house, and after doing up the housework in the mornings she would go to her work at the dressmaker's, where a number of women were employed. On the trial she testified that the defendant assaulted her in his bedroom on Sunday, January 14, 1894, at between eleven and twelve o'clock in the day; that she resisted him to her utmost; that he overpowered her; that she screamed; that he put his hand over her mouth; that while the act was being performed she exclaimed, "Father, have mercy on your own flesh and blood!" that when the act was over she went into her own bedroom, and, when she recovered from the exhaustion caused by her efforts to prevent the act, she went about the doing of her housework; that from that date down to the twenty-sixth day of February, 1894, defendant raped her as often as three times a week, and that she resisted him every time to her utmost; and that at each time, while the act was being performed, she exclaimed, "Father, have mercy on your own flesh and blood!" She testified that she had not reported his conduct to any one, giving as a reason for her silence that she had no friends to whom she could go and report it to, and the further reason that she was afraid he would kill her. For nearly one year Laura Curby resided in the same house with her father, the defendant. Their bedrooms were adjoining, with a door from the one to the other. She kept the house. They made visits together, and received visitors. During that period he attended to his store in the city, and his other business, and she worked six months of the time at the dressmaker's, where several matrons were engaged in business. She rode on defendant's wagon with him frequently between their residence and the business house. Their conduct towards each other was marked by no change after the date of the alleged assault from that which existed prior to that date. She testified that he assaulted her in December, 1893, but at that time, she said, "He tried to get the best of me, but did not succeed." On the trial, Mrs. Curby, whose residence is San Francisco, and who is defendant's divorced wife, of sixteen years' standing, was offered as a witness for the prosecution, and only two facts were proved by her, or attempted to be proved: (1) "That Laura Curby is the defendant's daughter"; and (2) "that she is the divorced wife of defendant, of sixteen years' standing." Evidence was introduced to the effect that after the date of the first rape Laura requested defendant to purchase for her a diamond ring, and that he suggested to her that a watch would suit her better; that she agreed with him in that suggestion; and that he did purchase her a gold watch and chain, and presented them to her on her birthday, February 22d, just four days before he was arrested on this charge. At the date of the trial, defendant was nearly sixty years old, and he had been a grandfather for over seven years. Laura Curby, the prosecutrix, was eighteen years old. The defendant offered to prove, or attempted to prove, that Laura was prompted in making the charge by a desire to shield her lover, and to punish defendant for interfering with the movements of her lover in his attentions to her; that is, he attempted to prove that she had a motive for instituting the prosecution against him. The court did not allow him to offer such evidence. Defendant was sworn as a witness, and after closing his testimony he was examined by the prosecution, and forced by the court to answer questions propounded to him by the prosecution which were not connected with the matters testified to in his examination in chief. From the judgment of conviction he appeals.

ROUSE, J. (after stating the facts).--

It is not necessary for us to pass on the action of the court in overruling the demurrer to the indictment, or that we should express an opinion as to the validity of the indictment in this case. Passing those questions, we find defendant was accused of the crime of rape, tried therefor, convicted, and sentenced to the penitentiary for life. Rape is justly considered one of the most heinous crimes. A low degree of moral turpitude must be attained by a man, in order to commit this crime. Against a man who commits this crime, popular indignation is aroused, and exists with the first information that the man is accused of or charged with the offense. Indignation starts with the accusation. The case, in part, is prejudged before an examination is had. Support the charge with the allegation that the victim is the mother, sister, or daughter of the accused, and a trial, unless it be well conducted, is a useless proceeding, for the accused will be condemned before the trial. The sentiment just mentioned gave birth to this expression of an able jurist: "Rape is easy to charge. It is hard to disprove." Care should be used by the court, in all criminal trials, to prevent convictions on prejudice alone. On account of the nature of the crime of rape, in trials therefor, the court should be exceedingly careful. Laura Curby and Joseph Curby, her father, resided in the same dwelling, and had adjoining bedrooms, with a door from one to the other, for nearly twelve months before the time fixed on which the alleged assault was made. Lodging so near each other during all that period, with opportunities for such an assault at hand every night, when an outcry would summon no protector to her defense, the assault was deferred for over ten months. It is alleged that he chose an hour in the daytime, when people were abroad and an outcry would likely attract attention, and on a Sunday (a day on which unusual sounds would be sure to be noticed), to commit the act. After the first act, at intervals of two or three days, it is said, the act was repeated, and that at each time she exclaimed, "Father, have mercy on your own flesh and blood!" That after the completion of the first act she went into her bedroom, and that after she had rested a while, and recovered from the exhaustion caused by her resistance, she went to work, in doing up her housework. She rode on defendant's wagon with him after the performance of some of those acts to his place of business and elsewhere. After ...