Sage v. State

• Court: Arizona Supreme Court
• Writing for the Court: BAKER, J.
• Citation: Sage v. State, 22 Ariz. 151, 195 P. 533 (Ariz. 1921)
• Decision Date: 17 February 1921
• Docket Number: Criminal 497
• Parties: CLARENCE SAGE, Appellant, v. STATE, Respondent

195 P. 533

22 Ariz. 151

CLARENCE SAGE, Appellant, v. STATE, Respondent

Criminal No. 497

Supreme Court of Arizona

February 17, 1921

APPEAL from a judgment of the Superior Court of the County of Yavapai. A. C. Lockwood, Judge. Affirmed.

Messrs Bullard & Jacobs, Mr. P. M. Ling, Mr. F. L. Haworth, Mr. Geo B. Thatcher, and Mr. P. A. McCarran, for Appellant.

The Attorney General, Mr. Louis J. Hart, Assistant Attorney General, and Mr. Neil C. Clark, County Attorney, for the State.

OPINION

BAKER, J.

Clarence Sage, Fred Woods, R. P. Giles, and George Floyd were jointly informed against for the crime of rape, alleged to have been committed upon Alverda Florence Schendel, a female, under the age of eighteen years. The defendant Sage was granted a separate trial and was convicted of the crime. From the judgment of conviction and the order denying his motion for a new trial, he appeals to this court.

The material testimony in the case is in substance this: The prosecutrix, Alverda Florence Schendel, testified that at the time charged her age was seventeen years and two months, and that she was a married woman, but living separate and apart from her husband, Marion Schendel, who had deserted her. That on the night of January 5, 1920, she was occupying a room as a guest at the Sullivan Hotel, in Jerome, Arizona. That on that night two police officers of Jerome, Giles and Floyd came to her room and informed her that she was under arrest and ordered her to accompany them to the police station, as the police officers testified, to secure a statement from her. On the way to the police station they met Woods, who asked, "What was the matter?" Sage came up about that time and told Giles and Floyd that there was trouble at a Mexican's, by the name of Verilla, and that they had better look into it. The two officers, Giles and Floyd, then left to go to Verilla's. Sage and Woods then took the prosecutrix to an apartment occupied by Sage, and there, in Sage's room, they compelled the prosecutrix to drink a quantity of whiskey. The whiskey caused the prosecutrix to become sick and stupefied. Sage and Woods took off her clothes and undressed themselves, and each had sexual intercourse with the prosecutrix several times during the night. Early the next morning the prosecutrix was let out of Sage's room and she returned to the Sullivan Hotel. That day the prosecutrix made complaint of the occurrence of the night before to one Wykoff, who seems to have been acting as her attorney. The police officers, Giles and Floyd, gave testimony contradicting the prosecutrix in some particulars respecting the circumstances of her arrest and explaining the reasons why they arrested the prosecutrix. Neither Sage nor Woods testified as witnesses in the case.

It is not claimed that the evidence is insufficient to support the verdict, but reliance is had for reversal of the judgment of conviction upon certain alleged errors of the trial court, some of which we shall notice without reference to the order in which they are presented in the brief of counsel for the defendant. Those not discussed are regarded by us as being of no importance or significance.

The first assignment of error to which our attention will be directed is predicated upon the action of the court in overruling the defendant's demurrer to the information filed in the case. The demurrer is based upon the proposition that the information is fatally defective because it charges more than one offense. It is true that if an information charges more than one offense it is subject to demurrer upon that ground. Penal Code, par. 938. The question then is: Does the information in this case charge two offenses? We do not think so. It is alleged that --

The defendants [Sage, Woods, Giles, Floyd] "did . . . willfully, forcibly, violently, unlawfully and feloniously, make an assault upon one Alverda Florence Schendel, and did then and there administer to her, the said Alverda Florence Schendel, intoxicating and narcotic liquors, which produced in her the said Alverda Florence Schendel, a stupor and weakness that rendered her incapable of resistance, and by threats of great and immediate bodily harm, accompanied by apparent power of execution, the said Clarence Sage, Fred Woods, R. P. Giles and George Floyd, did . . . in the manner, and by the means aforesaid, willfully, forcibly, unlawfully and feloniously ravish, carnally know, perform and accomplish with her, the said Alverda Florence Schendel, an act of sexual intercourse, against her will and resistance and without her consent, she the said Alverda Florence Schendel, . . . being a female under the age of eighteen years and who was not . . . the wife of said Clarence Sage, Fred Woods, R. P. Giles, George Floyd, or either of them."

The statute (section 231, Penal Code 1913) prescribes six different instances of sexual intercourse with a female, not the wife of the perpetrator, either of which amounts to rape, three of which instances, it will be noticed, are covered by the information in this case:

"(1) Where the female is under the age of eighteen years, . . . (3) Where she resists, but her resistance is overcome by force or violence. (4) Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution, or by any intoxicating, narcotic, or anaesthetic substance, administered by or with the privity of the accused."

As we read the statute it enumerates a series of acts, either of which separately, or all together, so far as they are not in their nature inconsistent, constitutes the single offense of rape, and it is well settled that the information may charge in a single count the commission of the offense in any, or by conjunctive allegations in all, of the enumerated and not inconsistent ways.

In Bishop's New Criminal Procedure (second edition, volume 1, page 354, section 436) the rule is clearly and forcibly stated as follows:

"A statute often makes punishable the doing of one thing or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction 'and' where the statute has 'or,' and it will not be double, and it will be established at the trial by proof of any one of them."

The rule is thus stated in Ency. of Pl. & Pr., volume 10, page 536:

"When a statute enumerates several acts in the alternative, the doing of any of which is subjected to the same punishment, all of such acts may be charged cumulatively as one offense. And where the statute provides in the alternative several means by which the offense may be committed, or where the intent or purpose is set out in several aspects disjunctively, they may all be charged in setting out one and the same offense."

The text is abundantly supported by the decided cases. In State v. Adams, 41 Wash. 552, 83 P. 1108, the information charged that --

The defendant "did unlawfully, feloniously and forcibly, and against her will, ravish and carnally know, Maud Stephey then and there being a female child under the age of eighteen years, to wit, of the age of seventeen years."

The Supreme Court of Washington, in reversing a judgment sustaining a demurrer to the information, on the ground that it charged more than one offense, said:

"The statute defines but one crime and prescribes but one penalty therefor. Where a statute provides that a crime may be committed in different ways or by different means, the act constitutes but a single offense, whether one or all of the ways and means be employed in its commission, and it is proper to charge in an information that the crime was committed in one of the ways or by one of the means specified in the statute, or in all the ways and by all the means conjunctively."

In People v. Gusti, 113 Cal. 177, 45 P. 263, the court said:

"It is a well-settled rule of law that 'when a statute enunciates a series of acts, either of which separately or all together may constitute the offense, all of such acts may be charged in a single count, for the reason that notwithstanding that each act may, by itself, constitute the offense, all of them together do no more, and likewise constitute but one and the same offense.'"

The same principle is announced in the following cases: State v. Meyerkamp, 82 Wash. 607, 144 P. 942; People v. O'Brien, 130 Cal. 1, 62 P. 297; Fahnestock v. State, 102 Ind. 156, 1 N.E. 372; State v. Hann, 73 Minn. 140, 76 N.W. 33; Commonwealth v. Lowe, 116 Ky. 335, 76 S.W. 119; Cooper v. State, 22 Tex. App. 419, 3 S.W. 334.

We construe the information in the present case as charging a single offense, namely, statutory rape, alleged to have been committed upon the prosecutrix by overcoming her resistance by the means and ways enumerated in the statute, i.e., by force and use of intoxicating liquor and by threats and fears. The means and ways alleged to have been employed by the defendant in the commission of the alleged offense are not inconsistent or repugnant. They may all exist in a case of statutory rape, and if the evidence of the prosecutrix is true, at least two of the means or ways did exist in the present case. But one offense is denounced by the statute and only one punishment is prescribed. We do not think that there was any error in overruling the demurrer.

The defendant excepts to a question asked the witness Wykoff. The question objected to was as follows: You may state briefly,...