State v. Superior Court of Pima County

• Decision Date: 28 May 1969
• Docket Number: No. 9431,9431
• Citation: State v. Superior Court of Pima County, 104 Ariz. 440, 454 P.2d 982 (Ariz. 1969)
• Parties: The STATE of Arizona, Petitioner, v. SUPERIOR COURT OF PIMA COUNTY, the Hon. Norman S. Fenton, Presiding Judge, Respondent.
• Court: Arizona Supreme Court

Page 982

454 P.2d 982

104 Ariz. 440

The STATE of Arizona, Petitioner, v. SUPERIOR COURT OF PIMA COUNTY, the Hon. Norman S. Fenton, Presiding Judge, Respondent.

No. 9431.

Supreme Court of Arizona, In Banc.

May 28, 1969.

Gary K. Nelson, Atty. Gen., William J. Schafer, III, Pima County Atty., by Stanley L. Patchell, Deputy County Atty., for petitioner.

Ronald W. Sommer, Tucson, amicus curiae, for respondent, Manuel Costillo Ochoa, real party in interest.

STRUCKMEYER, Justice.

This cause is an application for an original writ of certiorari brought in this court in the name of the State of Arizona directed to the Superior Court of Pima County, and the Honorable Norman S. Fenton, Judge thereof, to certify the entire file of that certain criminal case No. A--16297 wherein the State of Arizona was plaintiff and Manuel Costillo Ochoa was defendant. Ochoa was informed against and tried in Pima County for the crime of rape, second degree. The respondent judge directed a verdict of not guilty for Ochoa on the grounds that the evidence showed he had a good faith belief that the prosecutrix was over the age of eighteen years, she then in fact being sixteen years of age.

By statute A.R.S. § 13--611, rape in the first degree is where resistance is overcome by force or threats of great bodily harm or the female is incapable through lunacy of giving legal consent. Rape in the second degree is:

'* * * an act of sexual intercourse with a female, not the wife of the perpetrator, under the age of eighteen years, under circumstances not amounting to rape in the first degree.' A.R.S. § 13--611, subsec. B.

The question raised by the State's application for certiorari is whether a good faith belief that the prosecutrix was of the age of eighteen years or over, is a defense to the charge of rape, second degree.

As a general rule we do not resolve questions which have been mooted either by the passage of time or the action of an inferior tribunal, Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764, but where the matter is of considerable public importance or the principle involved is a continuing one, this Court may, in its discretion, decide the issues of law involved. State v. Superior Court, In and for Pima County, 86 Ariz. 231, 344 P.2d 736. The present case is one where the principle of law involved is both a continuing one and of considerable public importance.

Able counsel for Ochoa has appeared as amicus curiae in this Court and presented an extensive brief urging that we follow the decision of the California Supreme Court in People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3rd 1092 (1964). In a unanimous opinion the Supreme Court of California overruled its former decisions, and held that in a charge of statutory rape, because of the perpetrator's reasonable, although mistaken, belief that the female was over the age of consent, criminal intent was lacking and no crime was committed.

Prior to the amendment of the Arizona Act in 1962, A.R.S. § 13--611, and under a statute of almost identical language, we repeatedly held that criminal intent, the mens rea, was present regardless of whether sexual intercourse with a female under the age of eighteen was with her consent. Consequently, consent was not a relevant factor and was held not to absolve the accused of criminal responsibility for the act. See State v. Brady, 66 Ariz. 365, 189 P.2d 198; Callaghan v. State, 17 Ariz. 529, 155 P. 308. We do not assume the Legislature was unaware of our holdings and, therefore, by re-enacting the statute in substantially the same language intended to carry the construction of the former act into the present law:

'It is universally the rule that where a statute which has been construed by a court of last resort is reenacted in the same or substantially the same terms, the legislature is presumed to have placed its approval on the judicial interpretation given and to have adopted such construction and made it a part of the reenacted statute.' Madrigal v. Industrial Commission, 69 Ariz. 138, 142, 210 P.2d 967, 971.

The construction here placed upon the statute disposes of the question presented by the State's application. Nevertheless, we have given consideration to the California case of People v. Hernandez, supra, which interprets an act quite similar in language to Arizona's. In considering the California position we feel compelled to first observe that the social consequences of legislative action is not ordinarily a matter with which courts are concerned. It is sufficient to say that the constitutional justification for criminal responsibility lies in the recognition that a female under the age of eighteen years, although physically mature, may be mentally and emotionally incapable of making a proper value judgment. The statute is bottomed on the premise that those who deal with the young must do so at their peril and are strictly accountable for their conduct.

A crime is 'an act committed * * * in violation of a law forbidding * * * it.' A.R.S. § 13--101. It consists of the union of act and intent or act and criminal negligence. A.R.S. § 13--131. Lacking criminal negligence, a person is not punished for an otherwise criminal act where ignorance or mistake of fact...