STRUCKMEYER, Chief Justice.
Hargie Lee Lewis was charged with two felony counts, under A.R.S. § 13-491 with the crime of kidnapping, and under A.R.S. § 13-611 with the crime of rape. On November 6, 1967 he changed his plea to the charge of rape from not guilty to guilty and the charge of kidnapping was dismissed. From the conviction and sentence to a term of imprisonment for not less than ten nor more than fifteen years, he brings this delayed appeal.
Lewis urges that the information charging the crime of rape was not sufficient to support a plea of guilty because it did not allege that the victim was not his wife. He cites this court to Browning v. State, 53 Ariz. 174, 87 P.2d 112, wherein we held that in an information charging rape it was necessary to negative the existence of the relationship of husband and wife between the defendant and the victim. The rule announced in that case was, however, superseded in 1939 by the adoption of the Rules of Criminal Procedure, A.R.S. 17. There, by Rule 148, it became permissible to charge rape simply as "A.B. raped (or ravished) C.D."
By A.R.S. § 13-611, rape is divided into first and second degrees, and by Rule 142 of the Rules of Criminal Procedure, where an offense is divided in degrees an information may charge the offense without specifying the degree. Consequently, we conclude that although the information neither alleged that the victim was not the wife of the defendant nor specified the degree of the crime, being a valid charge it was sufficient to support a lawful plea of guilty. State v. Peel, 99 Ariz. 174, 407 P.2d 756.
Defendant relies on Criminal Rules 185 and 186 which require that on a plea of guilty the trial judge shall determine the degree of the offense and render a judgment and sentence accordingly. He urges that because the information did not specify the degree of rape and because the court did not determine the degree, in derogation of the requirements of Rules 185 and 186, the defendant's plea of guilty should be treated as void and of no force or effect. We note that in some states it has been held that it is mandatory for the trial judge to comply with such requirements as are embodied in Rules 185 and 186. Anno. 34 A.L.R.2d 919 (1954), Plea of Guilty — Degree of Offense. But we do not think defendant was prejudiced by the court's failure and, therefore, we believe the error was purely technical and harmless.
A.R.S. § 13-611 provides:
The record submitted to this Court includes the statement of facts on conviction signed by the County Attorney of Maricopa County. In part its reads:
Moreover, in the companion case of State v. Scott, appealed to this court, see 105 Ariz. 109, 460 P.2d 3, the facts as recited in the decision established that the victim was waiting for a bus at Twelfth Street and Broadway in Phoenix when a car containing three persons drove up; that the victim was dragged into the car and driven out of Phoenix into the Laveen — St. Johns area; that while she was being threatened by a knife, Scott and the defendant Lewis forced her to undress and raped her. Since rape in the first degree is an act of sexual intercourse where the female resists but her resistance is overcome by force or the female is prevented from resisting by threats of immediate and great bodily harm accompanied by apparent power of execution, the offense here is rape in the first degree.
As stated, Criminal Rule 186 provides that the trial judge "shall * * * determine the degree of the offense * * and render judgment and sentence accordingly." The reason for the rule requiring the determination of the degree of the offense is so that a proper sentence and judgment may be pronounced. By the Arizona statute A.R.S. § 13-614, the punishment for rape in the first degree is imprisonment in the state prison for life or any term of years not less than five, and punishment for rape in the second degree is imprisonment in the state prison for life or any term of years in excess of one year or by imprisonment in the county jail for not to exceed one year. The court's sentence of no less than ten nor more than fifteen years is within the range and limits of the punishment for both rape in the first and rape in the second degree.
Criminal Rule 186 provides that the court shall examine defendant and witnesses, "if necessary," to determine the degree of the offense. The rule is obviously conditional and we do not construe it as mandatorily requiring in every instance the examination of the defendant and witnesses before an appropriate sentence and judgment are pronounced. There are other means, such as probation officers' reports, by which the Arizona courts customarily determine facts upon which to pass judgment and sentence after a plea of guilty has been entered.
Consequently, we do not presume that the lower court acted in this important matter without being appropriately advised of the details of the offense and other relevant facts. For this reason, and because the sentence is within the legal limits of both first and second degree rape, the error of the court in failing to comply with Rules
HAYS, V.C.J., and UDALL, J., concur.
CAMERON, Justice (dissenting).
In this case the defendant was charged in an information with rape unspecified as to degree. I agree with the majority that this was proper under the circumstances. The defendant later decided to withdraw his plea of not guilty and the following transpired:
Our rules state:
The majority opinion pays credence to the statement of facts on conviction prepared by the County Attorney, pursuant to § 11-533 A.R.S., as evidencing and substantiating the alleged § 13-611, subsec. A (2) conviction. It is noted, however, that this is not a finding of fact; indeed, it is prepared after sentencing and is designed to "aid the superintendent of the prison and the board of pardons and paroles in determining the capability of such prisoner to become a law abiding citizen." (§ 11-533 A.R.S.)
Neither the original complaint, the information, the transcript, nor judgment of guilt and sentence show this offense to be other than "rape — a felony". This court has on previous occasion stated:
Neither procedure was followed here.
Likewise, the majority calls on evidence from the companion case of State v. Scott, 105 Ariz. 109, 462 P.2d 3 (1969). Admittedly, in the companion case the record discloses the age of the victim to be 20 years. Knowing this fact I cannot assume that the defendant was guilty of rape in the 2nd degree. Of this analytical procedure, however, we have previously stated:
I see no reason to retreat from that position.
Additionally, the punishment section for rape reads as follows:
Under subsection C, the punishment is the same for the first offense but must be enhanced for subsequent offenses committed with a deadly weapon. It therefore becomes important to the State as to future offenses to have the fact that defendant committed this act by force or violence and with a deadly weapon (a knife) determined at the time of sentencing. The information did not specify the degree of the offense. We have stated:
I believe that before a plea of guilty may be accepted, the trial judge must expressly determine the degree of the offense and the permissible punishment thereunder. I would remand the matter for that limited purpose.
LOCKWOOD, J., concurs.