State v. Carrico, 3910
| Decision Date | 30 September 1977 |
| Docket Number | No. 3910,3910 |
| Citation | 116 Ariz. 547,570 P.2d 489 |
| Parties | STATE of Arizona, Appellee, v. Perry Scooter CARRICO, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, and Georgia B. Ellexson, Asst. Attys. Gen., Phoenix, for appellee. Leek & Oehler by Stephen M. Lee, Kingman, for appellant.
The appellant was charged by indictment with rape, in violation of A.R.S. § 13-611(A) and § 13-614. The trial jury found him guilty of rape in the second degree. We have jurisdiction pursuant to 17A A.R.S. Supreme Court Rules, rule 47(e).
The sole issue in this appeal concerns the court's giving an instruction on second degree rape when the indictment recited a violation of A.R.S. § 13-611(A). In 1962 the legislature amended the rape statute to provide for degrees of rape; first degree, as defined in A.R.S. § 13-611(A), involves what is often referred to as forcible rape; and second degree, as defined in A.R.S. § 13-611(B), involves statutory rape. Appellant urges that the court committed reversible error in permitting the jurors to return a verdict of guilty of second degree rape because he was charged with and had defended on the charge of forcible rape.
We are aware of the fact that there is authority to the effect that statutory rape is not a lesser included offense in forcible rape even though the victim may be under the age of consent. See United States v. Littlewind, 551 F.2d 244 (8th Cir. 1977).
We answered this question recently in State v. Klem, 108 Ariz. 349, 498 P.2d 216 (1972). The court said:
108 Ariz. at 350, 498 P.2d 216 at 217.
The court then went on to say:
"While it is, of course, possible that an accused may be taken by surprise if an information charges him under one subsection of A.R.S. § 13-611 and the proof offered brings the offense under another subsection, if the accused has received notice of such a possibility he is not prejudiced thereby." 108 Ariz. at 350, 498 P.2d 216 at 217.
We are not constrained to depart from the foregoing position. An examination of the record indicates that the appellant had knowledge of the age...
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Gray v. Raines
...apparently conceded that statutory rape is not a lesser included offense within a charge of forcible rape. State v. Carrico, 116 Ariz. 547, 548, 570 P.2d 489, 490 (1977). Instead, the court construed A.R.S. 13-611 as "merely stat(ing) the different circumstances under which sexual intercour......
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State v. Marquez
...charge of violating A.R.S. § 13-1206 would be a bar to further prosecution based upon the facts given in court. See State v. Carrico, 116 Ariz. 547, 570 P.2d 489 (1977); State v. Juarez, 111 Ariz. 119, 524 P.2d 155 (1974). We find no error. A.R.S. § 13-1206 The defendant makes several argum......
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State v. Banks
...rights resulting from the amendment of the Information. Our holding is consistent with the results reached in State v. Carrico, 116 Ariz. 547, 570 P.2d 489 (1977); State v. Klem, 108 Ariz. 349, 498 P.2d 216 (1972); and People v. Brown, 35 Cal.App.3d 317, 110 Cal.Rptr. 854 (1973). See also S......
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State v. Gray, 4534
...if the accused has received notice of such a possibility in time to defend, he is not prejudiced by its occurrence. State v. Carrico, 116 Ariz. 547, 570 P.2d 489 (1977); State v. Klem, The victim testified at the preliminary hearing that she was seventeen years old. Gray was therefore on no......