JOSEPH CURBY, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

[Criminal No. 101. Filed December 23, 1895.] [42 Pac. 953.] JOSEPH CURBY, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent. 1. Criminal Law—Rape—Evidence — Sufficiency.—Evidence upon a prosecution for rape by a father sixty years of age upon a daughter aged eighteen, showing that the parties resided in the same 'dwelling, and had adjoining bedrooms, with a door from one to the other, for nearly twelve months before the time of the alleged assault; that it was first committed in the daytime, on Sunday, when people were abroad; that after the first act, at intervals of two or three days, it was repeated, and that at each time she exclaimed, “Father, have mercy on your own flesh and blood!” that after the completion of the first act she resumed her household duties, and there was no apparent change in the relations between them; that a month after the alleged assault he purchased her a gold watch and chain and presented it to her four days before his arrest, is insufficient to support a conviction. Bethune, J., dissenting. 2. Same—Same—Same—Defense—Motive of Prosecuting Witness.— It is competent for the defense to show, on a prosecution for rape, that the prosecutrix was actuated by a motive, which was to shield her lover, whose attentions were paid to her against defendant’s consent. 3. Same—Examination of Defendant—Rev. Stats. Ariz. 1887, Penal Code, Par. 2040, Cited.—A defendant can only be examined by the prosecution about the matters testified to in bis direct examination. Statute, supra, cited. 4. Same—Rape—Evidence — Uncokr iborated Testimony op Prosecutrix Sufficient.—A conviction s or rape can be bad on tbe uncorroborated testimony -of the worn? n ravished. 5. Same—Same—Same—Repetition of Act—Consent.—If, after tbe first act is accomplished, it be repeated at intervals, and tbe woman is of tbe age of discretion, and has tbe opportunity to make complaint, and she makes none, or it she consents to an act after tbe first intercourse, such conduct will be evidence that tbe first act was performed with her consent, and she was not ravished. APPEAL from a judgment of the District Court of the First Judicial District in and. for the County of Cochise. J. D. Bethune, Judge. Reverse!. Statement of facts by Rouse, J. On May 18, 1894, an indictment was returned, accusing Joseph Curby of the crime of tape, committed January 14, 1894, on Laura Curby. To the indictment defendant demurred. The demurrer was overruled, and defendant entered a plea of not guilty. The trial was had May 24, 1894. A verdict of guilty was returned, and judgment pronounced thereon, by which defendant wa:: sentenced to the penitentiary for life. Joseph Curby resided in a house at the limits of Tombstone. The nearest dwelling to his was one hundred and eighty-five feet away. He was dealer in second-hand furniture, and had his place of business in the city of Tombstone. He owned an express-wagon, which he used in delivering goods and to ride in, in going to and from his place of business. Laura Curby, the prosecutrix, resided in San Francisco until the first part of the year 1893, uhen she took up her residence with the defendant. She worked at a dressmaker’s in Tombstone for about six months just prior to the date when defendant was arrested. She kept defendant's house, and after doing up the housework in the morning:; she would go to her work at the dressmaker’s, where a number of women were employed. On the trial she testified that the defendant assaulted her in his bedroom on Sunday, January 14, 1894, at between eleven and twelve o’clock in the day; that she resisted him to her utmost; that he overpowered her; that she screamed; that he put his hand over her mouth; that while the act was being performed she exclaimed, “Father, have mercy on your own flesh and blood!” that when the act was over she went into her own bedroom, and, when she recovered from the exhaustion caused by her efforts to prevent the act, she went about the doing of her housework; that from that date down to the twenty-sixth day of February, 1894, defendant raped her as often as three times a week, and that she resisted him every time to her utmost; and that at each time, while the act was being performed, she exclaimed, “Father, have mercy on your own flesh and blood!” She testified that she had not reported his conduct to any one, giving as a reason for her silence that she had no friends to whom she could go and report it to, and the further reason that she was afraid he would kill her. For nearly one year Laura Curby resided in the same house with her father, the defendant. Their bedrooms were adjoining, with a door from the one to the other. She kept the house. They made visits together, and received visitors. During that period he attended to his store in the city, and his other business, and she worked six months of the time at the dressmaker’s, where several matrons were engaged in business. She rode on defendant’s wagon with him frequently between their residence and the business house. Their conduct towards each other was marked by no change after the date of the alleged assault from that which existed prior to that date. She testified that he assaulted her in December, 1893, but at that time, she said, “He tried to get the best of me, but did not succeed.” On the trial, Mrs. Curby, whose residence is San Francisco, and who is- defendant’s divorced wife, of sixteen years’ standing, was offered as a witness for the prosecution, and only two facts were proved by her, or attempted to be proved: (1) “That Laura Curby is the defendant’s daughter”; and (2) “that she is the divorced wife of defendant, of sixteen years’ standing.” Evidence was introduced to thé effect that after the date of the first rape Laura requested defendant to purchase for her a diamond ring, and that he suggested to her that a watch would suit her better; that she agreed with him in that suggestion; and that he did purchase her a gold watch and chain, and presented them to her on her birthday, February 22d, just four days befóte he was arrested on this charge. At the date of the trial, defendant was nearly sixty years old, and he had been a grandfather for over seven years. Laura Curby, the prosecutrix, was eighteen years old. The defendant offered to prove, or attempted to prove, that Laura was prompted in making the charge by a desire to shield her lover, and to punish defendant for interfering with the movements of her lover in Ms attentions to her; that is, he attempted to prove tLat she had a motive for instituting the prosecution against him. The court did not allow him to offer such evidence. Defendant was sworn as a witness, and after closing his testimony he ’.vas examined by the prosecution, and forced by the court to answer questions propounded to him by the prosecution which were not connected with the matters testified to in his examination in chief. From the judgment of conviction he appeals. Allen R. English, for Appellant. T. D. Satterwhite, Attorney-General, William Herring, of Counsel, for Respondent. [MAJORITY — ROUSE, J.] ROUSE, J. (after stating the facts).—It is not necessary for us to pass on the action of the court in overruling the demurrer to the indictment, or that we should express an opinion as to the validity of the indictment in this case. Passing those questions, we find defendant was accused of the crime of rape, tried therefor, convicted, and sentenced to the penitentiary for life. Rape is justly considered one of the most heinous crimes. A low degree of morel turpitude must be attained by a man, in order to commit this crime. Against a man who commits this crime, popular indignation is aroused, and exists with the first information that the man is accused of or charged with the offense. Indignation starts with the accusation. The ease, in part, is prejudged before an examination is had. Support the charge witli the allegation that the victim is the mother, sister, or daughter of the accused, and a trial, unless it be well conducted, is a useless proceeding, for the accused will be condemned before the trial. The sentiment just mentioned gave birth to this expression of an able jurist: “Rape is easy to charge. It is hard to disprove. ’’ Care should be used by the court, in all criminal trials, to prevent convictions on prejudice alone. On account of the nature of the crime of rape, in trials therefor, the court should be exceedingly careful. Laura Curby and Joseph Curby, her father, resided in the same dwelling, and had adjoining bedrooms, with a door from one to the other, for nearly twelve months before the time fixed on which the alleged assault was made. Lodging so near each other during all that period, with opportunities for such an assault at hand every night, when an outery would summon no protector to her defense, the assault was deferred for over ten months. It is alleged that he chose an hour in the daytime, when people were abroad and an outcry would likely attract attention, and on a Sunday (a day on which unusual sounds would be sure to be noticed), to commit the act. After the first act, at intervals of two or three days, it is said, the act was repeated, and that at each time she exclaimed, “Father, have mercy on your own flesh and blood!” That after the completion of the first act she went into her bedroom, and that after she had rested a while, and recovered from the exhaustion caused by her resistance, she went to work, in doing up her housework. She rode on defendant’s wagon with him after the performance of some of those acts to his place of business and elsewhere. After the act she importuned him to purchase her a diamond ring, and he purchased her a gold watch and chain, instead of a ring, and presented them to her on February 22d, her eighteenth birthday, —nearly forty days after the alleged assault, and only four days before she made the complaint on which he was arrested. During the period between the day on which the alleged assault was made and the day of his arrest she worked at the dressmaker’s, where there were a number of women employed, and went about the city of Tombstone as she had done before that period, and Was in company with those she was accustomed to be with. The facts and circumstances in evidence, the age of the accused, the conduct of the prosecutrix after the date of the alleged assault, the nature of the exclamations said to have been uttered by the prosecutrix at the time of the acts, the number of acts alleged to have been had, and the failure of the prosecutrix to make complaint, lead us to the conclusion that no rape was committed. Remove from this case the fact that Laura Gurby is defendant’s daughter, and no one familiar with the nature of the crime would, from the evidence in the case, believe defendant guilty of-this crime. This case must be considered as though she was not related to him. If he committed the act with force, against her consent, it was rape. If he committed the act with her consent, it was incest. He is gnilty of rape, or not guilty of anything, on this indictment. On the trial the prosecution seemed anxious to prove the relationship of the parties, and lost no opportunity to establish that fact. Mrs. Curby, who lives in San Francisco, and who is defendant’s divorced wife, was introduced by the prosecution as a witness, apparently for no other purpose than to prove that Laura is his daughter, and the further fact that she is defendant’s divorced wife, of sixteen years’ standing. At least, no other facts were attempted to be established by that witness. Defendant attempted to show that the prosecutrix was actuated, in making the char je against him, by a motive, and to show that the motive wo 3 to shield a lover of hers, whose attentions were paid to her against her father’s consent. This the court did not permit. We think the court erred in its rulings in that respect. It is competent to show, in every criminal prosecution, the motives of the prosecuting witnesses. Their motives are to be considered by the jury, in order to determine the question of the guilt or innocence of the accused. Especially is the motive of the injured woman, in a charge of rape, material to be shown and coosidered. The prosecution propounded to defendant questions about matters not testified to in his direct examination, and he was compelled to answer those questions. A defendant can only be examined by the prosecution about the matters testified to in his direct examination. Pen. Code, par. 2040. Counsel for appellant contends that a conviction for rape cannot be had on the uncorroboraied testimony of the woman ravished; that her evidence alone is not sufficient; that Laura Curby was not corroborated by any other witness in the case, and for that reason the defendant should be acquitted. We cannot give our assent to that contention. Corroboration is not necessary or required, as a rule. It is required only in cases in which the prosecuting witness occupies in some degree the status of a particeps crir/dnis. The woman who is ravished commits no crime by that act. Of all persons she is the most unfortunate. She is entitled to the sympathy of society, and in her interest the scales of justice should be speedily adjusted. Evidence of the victim alone, in a charge of rape, is sufficient to convict; but as “rape is easy to charge, and hard to disprove,” great care should be exercised on the trial of, one accused of this crime to prevent a conviction on prejudice alone, on account of the prejudice which exists against the crime itself. It must he established by evidence that the victim was ravished; she must be overcome with force which she has not the power to resist in an honest effort to do so, or be compelled to yield by threats of violence, which, if executed, would endanger her life; and she must, in good faith, if of the age of discretion, believe her assailant has the power at that time to carry the threats into execution, and will do so immediately on her refusal to obey. She must resort to every reasonable means at hand, if of the age of discretion, to prevent the act, and yield not as long as she can discover an avenue through which she may make her escape. She cannot be neutral or passive. If she is, she will be in pari delicto, and it will not be rape. If, after the first act is accomplished, it be repeated at intervals, and the woman is of the age of discretion, and has the opportunity to make complaint, and she makes none, or if she consents to an act after the first intercourse, such conduct will be evidence that the first act was performed with her consent, and that she was not ravished. We do not think the evidence sufficient to sustain the judgment. The judgment is reversed and the case dismissed, and it is ordered that the defendant be released from the penitentiary, and that, for that purpose the proper writ be issued. Baker, C. J., and Hawkins, J., concur. [CONCURRENCE — BETHUNE, J.] BETHUNE, J. (specially concurring in the reversal of the judgment).—In this case I concur in the opinion that the judgment should be reversed, on the ground of errors committed by the trial court. I do not concur in the judgment discharging the defendant, but think the case should be sent back to the trial court for a new trial. I think the trial court erred in not permitting certain testimony offered by defendant, but I am not prepared to say that the evidence adduced at the trial was insufficient to convict the defendant, but think the jury should be permitted to judge that. I do not agree with my brethren that this case must be considered as though the prosecutrix was not related to defendant. I think the fact that she is his daughter, taken in connection with the surrounding circumstances, would make a material difference in considering the lapse of time between the first commission of the offense and her telling of it, and her apparent passive submission to subsequent commissions. With shame to our civilization be it confessed, there are not wantin i instances of rape by fathers upon their daughters, and the existence of that relation puts a different phase upon a case like the one under consideration and ordinary cases of rape. The prosecutrix testified that she was in mortal fear of her father and that he was rough and harsh to her, and threatened to kill her if she told on him. “Where a father has established a kind o.f reign of terror in his family, and his daughter, under the influence of dread and terror, remains passive while he has connection with her, he may be found guilty of rape.” Reg. v. Jones, 4 Law T. (N. S.) 154. And again: “Where tie defendant had intercourse with a fourteen-year-old step-daughter, in her bed, in a room where three younger children weic sleeping; she told him not to get into bed, and threatened to tell her mother, but made no outcry, and no complaint for six days,—it was held that under the circumstances a conviction of rape must be sustained.” Bailey v. Commonwealth, 82 Va. 107, 3 Am. St. Rep. 87. All these matters of evidence, I think, should be left to the consideration of the jury, with proper instructions from the court, and opportunity being given the defendant to show any motive the prosecutrix may have in bringing the charge, which latter was not done in this case. For that reason I think the judgment should be reversed and a new trial granted.