Deffenbaugh v. State
Decision Date | 22 June 1927 |
Docket Number | Criminal 660 |
Citation | 257 P. 27,32 Ariz. 212 |
Parties | HARRY DEFFENBAUGH, Appellant, v. STATE, Respondent |
Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Pinal. C. C. Faires, Judge. Affirmed.
Mr Harry J. Valentine, and Mr. Spencer B. Pugh, for Appellant.
Mr John W. Murphy, Attorney General, Mr. Earl Anderson, and Mr Frank J. Duffy, Assistant Attorneys General, and Mr. E. W McFarland, County Attorney, for the State.
The appellant appeals from a conviction of rape, alleged to have been committed upon his daughter, Madrene Deffenbaugh, a few days after she arrived at the age of consent (18 years) by: (1) Overcoming her resistance by force and violence; and (2) in preventing resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution. He claims that errors were committed in the course of his trial of such a damaging nature as to require the setting aside of the judgment of conviction.
The denial of his motion for an instructed verdict at the close of the State's case, the motion being upon the ground of the insufficiency of the evidence to sustain the charge, is the basis of his first assignment. It is contended hereunder that the evidence falls short of establishing that the prosecuting witness' resistance was overcome by force or violence, or that she was prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution, but that on the contrary it establishes a willing consent on her part.
Under the statute, subdivisions 3 and 4, section 231 of the Penal Code, it was essential that the state establish beyond a reasonable doubt that the act charged was accomplished in one of the ways alleged in the information. The prosecuting witness admitted that she consented to acts of sexual intercourse with appellant, but says she did so because of a beating her father gave her shortly before and his threats to beat her again if she did not yield to his wishes. Her testimony was:
Referring to the March incident she said:
He whipped me at that time with a big kind of wire strap that was at least a quarter of an inch thick and two inches wide, and rubber over it. He whipped me hard enough to make the blood come, and large welts all over my back."
Again she said, explaining that when appellant would come to her bed and she would move away from him:
"He would fly into a rage and talk to me and tell me things that he would do to me and just scare me until I just had to give up to him." "He threatened to whip me all the time, and sometimes when I would fight him like that he would just stand over me and he would be so mad and grit his teeth and just shake and be white, and he would get a strap and he would stand over me and he would tell me to say certain things, and if I didn't say them he would whip me."
In McQuirk v. State, 84 Ala. 435, 5 Am. St. Rep. 381, 4 So. 775, the law is stated as follows:
."
See, also, 22 R.C.L. 1185, § 16.
We think the kind and degree of resistance that should be exerted must depend upon the surrounding circumstances, and when the female is so overpowered by fear of personal violence that she does not resist, the element of resistance is dispensed with. As is said in State v. Cowing, 99 Minn. 123, 9 Ann. cas. 566, 108 N.W. 851, "resistance is necessarily relative." For instance, where the act is induced by fear or through coercion of one whom the female is accustomed to obey, such as a parent, or one standing in loco parentis, it would be unreasonable to require the same high degree of resistance as where that relation did not exist. Hammond v. State, 39 Neb. 252, 58 N.W. 92. As to whether the threats by appellant to whip his child with a wire-rubber strap of the kind described by her, and his power and determination to do so unless she gave in to him, and also his apparent ability to inflict great bodily harm with such strap, were sufficient to frighten prosecutrix into submission, were questions for the jury, and if the jury were satisfied, as they seemed to have been, that her submission was the result of her belief that he would execute his threat, there were present all the circumstances to constitute the crime of rape as defined by subdivision 4 of section 231 of the Penal Code.
The appellant has excerpted from an instruction this language:
"You are instructed, while it is the law that the testimony of the prosecuting witness should be carefully scanned, still this does not mean that such evidence is never sufficient to convict, and if you believe the prosecuting witness, it is your duty to render a verdict of guilty," -- and contends that it violates the rule against singling out the testimony of a particular witness, and also that it amounts to a directed verdict of guilty. The complete instruction is as follows:
It is obvious that the instruction had a twofold purpose: To warn the jury to scan and carefully weigh the testimony of the prosecution, and at the same time to advise them of the well-settled rule that a conviction of rape may be had upon the uncorroborated testimony of the victim alone. Curby v. Territory, 4 Ariz. 371, 42 P. 953; Trimble v. Territory, 8 Ariz. 273, 71 P. 932; 22 R.C.L. 1222, § 56. In that view, we think the first criticism is without merit. The language assigned as erroneous has been condemned where the charge was that of an assault with intent to commit rape, because the intent with which the assault is made is always a material element of the crime charged, the court, in People v. Johnson, 106 Cal. 289, 39 P. 622, saying it was error "to put a state of facts to the jury which would bar them from finding the intent jury which would bar them from finding the intent to be other than that charged by the...
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...states that a victim must continue to resist as long as he has the power to do so. Such is not the law in Arizona. Deffenbaugh v. State, 32 Ariz. 212, 257 P. 27 (1927). The court's instruction on the issue of consent was INEFFECTIVE COUNSEL Appellant contends that he was denied effective as......
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