State v. Terrell

• Court: Arizona Supreme Court
• Writing for the Court: UDALL; McFARLAND
• Citation: State v. Terrell, 445 P.2d 429, 103 Ariz. 453 (Ariz. 1968)
• Decision Date: 25 September 1968
• Docket Number: No. 1815,1815
• Parties: STATE of Arizona, Appellee, v. Shirley Austin TERRELL, Appellant.

Page 429

445 P.2d 429

103 Ariz. 453

STATE of Arizona, Appellee, v. Shirley Austin TERRELL, Appellant.

No. 1815.

Supreme Court of Arizona, In Banc.

Sept. 25, 1968.

Darrell F. Smith, then Atty. Gen., and Terry M. Pierce, Asst. Atty. Gen., for appellee-plaintiff.

Peter D. Baird, Phoenix, court-appointed attorney, for appellant-defendant Terrell.

UDALL, Vice Chief Justice:

Appellant, hereinafter called defendant, brings this appeal from a conviction of rape and kidnapping.

Near midnight, defendant and his wife returned home from an evening out. Defendant told the victim, a 13-year-old baby-sitter, he would take her home. The girl got into defendant's car and was driven to a secluded spot on a dirt road near a cotton field, and forcibly raped. Defendant was charged with rape and kidnapping, convicted, and sentenced to serve a term in the state penitentiary for 30 years to life.

The appeal is brought on purely technical grounds. Defendant maintains that his conviction should be reversed because the information and magistrate's commitment were defective.

Defendant's first contention concerns the complaint and information. It is argued that in the first count, charging rape, the complaint and information failed to state which degree of rape was being charged and also failed to negate the possibility that defendant was married to the victim. Likewise, in the second count, charging kidnapping, the complaint and information failed to negate the possibility that defendant was the parent of the victim.

An exhaustive bill of particulars was submitted by the county attorney which fully supplied all information requested by defendant. The bill stated that defendant would be charged with first-degree rape, that the sexual intercourse with the 13-year-old victim was done against her will, and that defendant was not the parent of the victim.

We disagree with defendant that the pleadings were defective. Simplicity, rather than technicality, is the desired goal of modern pleadings. This court said, in Duke v. State, 49 Ariz. 93, 64 P.2d 1033:

'While it was customary in the past for all pleadings in criminal cases to state the offense charged with great particularity, in jurisdictions which follow the more modern rule it is generally held that the extreme technical precision of the ancient law is unnecessary, and that it is sufficient in the case of a commitment that the offense be charged generally by its legal name, if it has one, and that it is unnecessary that the precise details of the manner in which the crime was committed be set forth therein.'

An information is sufficient if it clearly sets forth the offense, in such manner as to enable a person of common understanding to know what is intended. Gutierrez v. State (1934), 44 Ariz. 114, 34 P.2d 395.

Defendant was charged in the complaint and information with rape and kidnapping. The degree of rape was not specified, nor was the possibility of a parent-child or husband-wife relationship negated. But, the name of the victim was given, and we are not hard pressed to assume that defendant could quickly discern whether the girl was his wife or daughter. If he was left in doubt as to the girl's consent, then his remedy was to request that the information be supplied in a bill of particulars.

Where an indictment is defective in that it fails to advise of the nature and cause of the accusation, all information can be supplied by a bill of particulars and the indictment is not fatally defective. State v. Miller, 100 Ariz. 288, 413 P.2d 757. In State v. Gallegos, 99 Ariz. 168, 407 P.2d 752, we approved language from State v. Benham, 58 Ariz. 129, 118 P.2d 91:

'In view of the simplified forms of indictment...