Uren v. State

• Decision Date: 04 March 1925
• Docket Number: Criminal 571
• Citation: Uren v. State, 27 Ariz. 491, 232 P. 398 (Ariz. 1925)
• Parties: WILLIAM UREN, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

232 P. 398

27 Ariz. 491

WILLIAM UREN, Appellant, v. STATE, Respondent

Criminal No. 571

Supreme Court of Arizona

March 4, 1925

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

Mr Alexander Murry and Mr. Frank E. Thomas, for Appellant.

Mr John W. Murphy, Attorney General, Mr. Earl Anderson Assistant Attorney General, and Mr. John F. Ross, County Attorney, for the State.

OPINION

PHELPS, Superior Judge.

On October 6, 1922, appellant was charged by information filed in the superior court of Cochise county with an assault with intent to commit rape upon the person of one Mrs. S. A. Butler, and on the twenty-seventh day of October, 1922, the case was tried to a jury and appellant found guilty as charged in the information.He was thereafter sentenced to serve two years in the state prison, and from the judgment and order overruling appellant's motion for a new trialhe prosecutes his appeal to this court.

Appellant assigns as error the failure of the lower court to instruct the jury upon the law of simple assault, simple battery aggravated assault and aggravated battery, which offenses appellant claims are included in the offense charged in the information, and upon this theory appellant further assigns as error the failure of the court to instruct the jury upon the general proposition of law that --

"When it appears that a defendant has committed a public offense and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only."

The information charges that --

"The said Bill Uren on or about the 13th day of September, 1922, and before the filing of this information, at the county of Cochise, state of Arizona, did then and there willfully, unlawfully, feloniously and violently, commit an assault in and upon the person of another, to wit, Mrs. S. A. Butler, a female, not the wife of him, the said Bill Uren, by then and there forcibly and with violence assaulting and attempting, with intent to rape her, the said Mrs. S. A. Butler, to have and commit the act of sexual intercourse with her, the said Mrs. S. A. Butler, contrary to the form, force and effect of the statute in such cases made and provided, and against the peace and dignity of the state of Arizona."

Section 207 of the Penal Code of 1913 provides:

"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."

Section 209 of said Code provides that --

"A battery is any willful and unlawful use of force or violence upon the person of another."

Section 215 of said Penal Code provides, in so far as the same is pertinent hereto, that --

"An aggravated assault is an assault . . . committed by an adult male upon the person of a female. . . ."

There can be no doubt but that in the very nature of the crime, an assault is an included offense in the crime of assault with intent to commit rape, and under proper allegations and proof a battery may likewise be included.

As to whether such assault or battery is a simple or an aggravated one must depend upon the law defining such offenses, upon the allegations in the information, and upon the evidence adduced at the trial.

Although the information sufficiently charges the offense of an assault with intent to commit rape, under no circumstances could the defendant in this case have been convicted of an aggravated assault or aggravated battery as an included offense, for the reason...