State v. Faught

Decision Date27 January 1965
Docket NumberNo. 1299,1299
Citation398 P.2d 550,97 Ariz. 165
PartiesSTATE of Arizona, Appellee, v. Donald Wayne FAUGHT, Appellant. . In Division
CourtArizona Supreme Court

Robert Pickrell, Atty. Gen., by Merton E. Marks, Asst. Atty. Gen., and Charles N. Ronan, County Atty., for appellee.

Peterson, Estrada & Matz, Phoenix, for appellant.

BERNSTEIN, Justice.

This is an appeal by Donald Wayne Faught from a conviction of the crime of second degree rape based on his plea of guilty. Appellant on July 3, 1962, appeared in Maricopa County Superior Court and pled guilty to statutory rape as charged in the amended information filed on that date. He was sentenced to from three to five years. The act complained of occurred with a fifteen year old girl. At the time the act was committed it was prohibited by A.R.S. § 13-611. The act was punishable under A.R.S. § 13-614, which provided a minimum sentence of five years. These statutes were amended effective midnight, June 20, 1962, and the crime of rape was divided into degrees, with a minimum sentence of one year for the second degree, statutory rape. Appellant contends the amendments created a new crime which was not in existence at the time the alleged offense was committed and therefore he could neither be charged with nor sentenced for committing such a crime.

We rejected appellant's contention in State v. Vineyard, 96 Ariz. 76, 392 P.2d 30, 32, decided since this appeal was taken. In Vineyard we said:

'Comparing the original statute with the amended version reveals no changes as to the six courses of conduct specified as rape. The legislature merely set this particular form of rape apart from the other five for the obvious purpose of allowing a different penalty to be assessed for its violation. To accomplish this purpose they designated the other five forms as rape in the first degree, and intercourse with a female under the age of eighteen, as rape in the second degree.'

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'The mere fact that rape is now divided into degrees does not change in any way what was, and still is, prohibited.'

The plain language of A.R.S. § 13-611 and § 13-614, as amended, shows this bill was amended to give the Superior Court judges of the state an opportunity of adjusting the offense and penalty for statutory rape to the facts of the case involved. In this regard rape in the second degree under the amended statute cuts down the felony provisions from a five to a one year minimum and allows the court of prosecutor to reduce the offense to a misdemeanor if the facts indicate.

Under Vineyard, the county attorney could have prosecuted under the old statute, and secured a minimum sentence of five years. In the exercise of...

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6 cases
  • State v. Cox, 2
    • United States
    • Court of Appeals of Arizona
    • December 16, 1975
    ...appellant would not be heard to complain that an indictment for second rather than first degree murder was sought. State v. Faught, 97 Ariz. 165, 398 P.2d 550 (1965). Appellant contends nevertheless that he could benefit from a charge of attempted first degree murder since the punishment wo......
  • State v. Gooch, 5938
    • United States
    • Supreme Court of Arizona
    • March 1, 1984
    ...prosecute rests within the duty and discretion of the prosecutor. State v. Murphy, 113 Ariz. 416, 555 P.2d 1110 (1976); State v. Faught, 97 Ariz. 165, 398 P.2d 550 (1965); see also State v. Williams, 120 Ariz. 600, 587 P.2d 1177 (1978); A.R.S. § 11-532 We have reviewed the record for error ......
  • State v. McCurdy
    • United States
    • Court of Appeals of Arizona
    • August 12, 1971
    ...have been imposed had the matter been left to the jury. Appellant cannot complain of error which is favorable to him. State v. Faught, 97 Ariz. 165, 398 P.2d 550 (1965); Vincent v. State, 16 Ariz. 297, 145 P. 241 (1914). If defendant's basis of error is that proof exists of the completed of......
  • State v. Carrico, 3910
    • United States
    • Supreme Court of Arizona
    • September 30, 1977
    ...a different penalty to be assessed for its violation.' The foregoing language was later quoted with approval in State v. Faught, 97 Ariz. 165, 166, 398 P.2d 550 (1965). The statute A.R.S. § 13-611 merely states the different circumstances under which sexual intercourse constitutes the crime......
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