94 Wash. 379 | Wash. | 1917
Action for damages for personal injuries charged as the result of an assault and forcible rape which it is alleged was inflicted by defendant upon plaintiff on April 15, 1914. The specific injuries complained of and for which damages are claimed are set out in the complaint as follows:
“(1) . . . Said defendant rudely seized the plaintiff and committed an assault upon her as follows to wit: Dragging her into the bed room, throwing her upon the bed and raping her three times in succession, holding her all of the time flat on her back upon the bed for an hour or more, twisting, straining, and wrenching her back, thereby injuring it permanently. As a result of said raping and sexual intercourse had as above stated the plaintiff became pregnant and was delivered of a child January 18, 1915, all of which said acts so done by the defendant to the plaintiff were forcibly done by said defendant, with force and against the will and without the consent of this plaintiff.
“(2) That said defendant greatly frightened the plaintiff by entering said house seizing her and throwing her upon the bed and raping her, impregnating her, thereby causing her to have a child, all of which said acts caused her to suffer great mental pain and anguish, and did thereby damage this plaintiff in the sum of $11,000.
“(3) That said defendant by committing the assault upon this plaintiff as in said paragraph 1 stated, namely by seizing her, throwing her upon the bed, forcing her to have sexual intercourse with him for three times, forcing her to lay [lie] flat on her back for an hour or more, by permanently injuring her back, by wrenching and twisting it to such an extent that the plaintiff has suffered severe pain in the small of her back ever since, and by reason of the defendant’s said treatment the plaintiff has been unable to work and has suffered great physical pain, and by reason of the defendant’s raping the plaintiff as above alleged she became pregnant and in due time had a son by the defendant, all of which said acts so done by the defendant on the plaintiff were done contrary to her consent and against her will and consent, forcibly and maliciously, thereby causing this plaintiff to suffer great physical pain and torture to her irreparable*382 damage in the sum of $12,000, in which sum said defendant has damaged this plaintiff.”
Then follows a prayer for judgment for $23,000 and costs. The cause went to trial upon the issues so tendered.
We shall not attempt to set out, even in substance, the disgusting details of the needlessly voluminous and hopelessly conflicting evidence adduced on both sides. It must suffice to say that plaintiff testified to the effect that she was an unmarried woman, twenty-two years old; that she was employed as a domestic in defendant’s home for several months in 1913, and again from February on through haying time till about the middle of July, 1914, that, during his wife’s absence at about two o’clock p. m. on April 15, 1914, defendant forcibly ravished her in the manner set out in the complaint. She admitted that she prepared the evening meal for defendant, his wife and son on that day, and, notwithstanding her alleged injuries, continued in his employment until the following July, doing the usual work of a domestic on the farm, from time to time attending dances with defendant and his wife, and made no complaint to any one till shortly before she gave birth to a child on January 18, 1915. Defendant positively denied any improper conduct with plaintiff, either with force or otherwise, and testified that he accompanied his wife to the town of Krupp on the day in question and did not return to his home till late that afternoon. In this he was corroborated by his wife and several other witnesses.
The jury returned a verdict for $5,000. At appropriate times, defendant moved for a directed verdict, for judgment non obstante veredicto, and for a new trial. All of these were denied, and judgment was entered upon the verdict. Defendant appeals.
I. Over appellant’s objection that it was outside the issues tendered by the complaint, respondent was permitted to testify to a severe injury and bruising of her arm, resulting in much pain. Over the same objection, a physician was per
It does not follow, however, that the admission of the evidence complained of was prejudicial. Its only possible effect was to augment the damages. So far as the record shows, no claim of excessive verdict was made in the lower court. The motion for a new trial was based upon all of the statutory grounds save the fifth and the sixth, which alone refer to excessive recovery. We must assume that this ground was omitted from the motion advisedly. The claim that the damages are excessive cannot be raised for the first time in this court. Moreover, even in this court, though in the brief it
II. Respondent and her mother were permitted to testify, over objection, to a conversation had by them with appellant in which they charged him with the paternity of the child and demanded a settlement, at which time they stated in substance that he refused to settle, but did not deny the paternity of the child. It is urged that this impinged the rule against the admission of evidence touching an offer to compromise. We think not. Appellant made no offer to settle, nor did he seek an interview for that purpose. Neither of the witnesses so testified. The record shows that the evidence was offered solely for the purpose of showing that, when charged with the paternity of the child, appellant did not deny it. It was clearly admissible for that purpose. Ewing v. Bass, 149 Ind. 1, 48 N. E. 241; Rose v. Rose, 112 Cal. 341, 44 Pac. 658; 1 Rice, Evidence, p. 424.
III. On cross-examination, respondent was asked: “Was this the first time you ever had intercourse with a man ?” She answered: “Yes.” Upon motion of her attorney, this was stricken as not proper cross-examination. This is assigned-as error. It is obvious that, in any view of the matter, the-striking of this answer was not prejudicial to appellant. But,, since the judgment must be reversed on another ground, we deem it expedient now to determine to what extent inquiry as to prior specific acts of unchastity may be carried, so that error in that respect may be avoided on another trial. In this state the law as to inquiry touching prior specific acts' is reasonably well settled in criminal prosecutions for sexual offenses. In such criminal prosecutions, with one exception, which we shall presently notice, it is only where a previous chaste character of the-prosecuting witness is by statute made an essential element of the offense that evidence of prior specific acts of incontinence on her part with others than the accused may be elicited, either on her cross-examination or
In criminal prosecutions for forcible rape, such evidence of prior acts cannot be elicited, either by cross-examination of the complaining witness or by evidence of third persons. This, for the reason that her previous chaste character is not an essential element of the crime of forcible rape, hence not directly in issue. Therefore she should not be expected to meet any number of collateral issues and explain every act of her life, nor to rebut possible false evidence of such specific acts of incontinence. She should only be required to defend her prior general reputation for chastity as bearing upon the question of consent, which is always in issue and is a very different thing from actual previous chastity. State v. Holcomb, 73 Wash. 652, 132 Pac. 416; State v. Ogden, 39 Ore. 195, 65 Pac. 449. Our attention has been called to no decision of this court, and we recall none, in which the question here involved has been passed upon in a civil action for damages for assault aggravated by forcible rape and resulting pregnancy.
We have adverted, at the risk of prolixity, to the rule as applied by this court in the two classes of criminal cases merely to mark its basis, which is to prevent a confusion of issues and unfair surprise, and to show that, even in those cases, we have refused to extend the rule of exclusion beyond its only rational basis; that is, to cases where actual previous
Even in criminal prosecutions for forcible rape which it is claimed resulted in pregnancy, and the woman’s evident condition before the birth, or the child itself afterwards, is called to attention of the jury, evidence of dissolute habits or specific acts of unchastity at about the time when the child must have been begotten are admissible, not as a defense, but as tending to account for her condition and meeting theprejudice against the accused which the fact of pregnancy of the prosecuting witness would probably create in the minds of the jurors. State v. Mobley, 44 Wash. 549, 87 Pac. 815; State v. Blackburn (Iowa), 110 N. W. 275; State v. Bebb, 125 Iowa 494, 101 N. W. 189; People v. Flaherty, 29 N. Y. Supp. 641. In the case here, since damages were asked not only for the assault and rape, but also for the resulting pregnancy and the physical and mental pain and suffering occasioned thereby, it is plain that the paternity of the child was directly in issue, and any evidence reasonably tending to cast doubt upon that question should be admitted in defense. Evidence was admissible, therefore, whether elicited by cross-examination of the woman herself or through the testimony of other witnesses, tending to show that she had had criminal relations with any other person than appellant at about the time when in the nature of things the child must have been begotten. Young v. Johnson, 123 N. Y. 226, 25 N. E. 363; Smith v. Yaryan, 69 Ind. 445, 35 Am. Rep. 232; Watry v. Ferber, 18 Wis. 500, 86 Am. Dec. 789; Whitman v. State, 34 Ind. 360; 5 Jones, Commentaries on Evidence, p. 168',
IY. The following incident is assigned as error. On the second day of the trial, appellant had testified to certain indiscreet demeanor of respondent with one Hoch during and prior to April, 1914, and had expressed the opinion that the baby looked like Hoch. On cross-examination, respondent’s counsel called attention to the child and claimed that it resembled appellant, stating, “We have the baby here . . . if he desires to show it to the jury.” Appellant’s counsel objected, whereupon the court said: “You want it to appear as an exhibit in the case,” and after further objection on counsel’s part to the effect that the introduction of the baby was not proper nor a part of the cross-examination, the court said: “I think the baby has been in evidence for the past two days. I have seen it.” [Addressing the jury,] “Gentlemen, have you seen it?” The jury answered, “Yes.” The court, “I thought so.” All of this was, of course, error, and highly prejudicial. But it was invited by appellant when he testified to the resemblance of the child to another man, and no exeception was taken to the court’s remarks. Moreover, the record shows that the baby was in the court room on the first day of the trial and had been referred to by counsel for appellant in the presence of the jury. Having submitted to, and attempted to profit by, the baby’s presence, counsel cannot now take advantage of the error. In view of a possible retrial we will say, however, that it is clearly the better rule to permit no reference to a supposed resemblance of the child to any one. The child cannot be made an exhibit, and the resemblance of a baby to its father is too indistinct and uncertain to be admissible as having any probative value. State v. Danforth, 48 Iowa 43, 30 Am. Rep. 387; Gray v. State, 43 Tex. Cr. 300, 65 S. W. 375; State v. Neel, 23 Utah 541, 65 Pac. 494.
V. The refusal of the court to permit appellant to prove various acts of incontinence by respondent with other men,
VI. Finally, a claim of error is predicated upon the following incident. A witness was testifying to certain indecent liberties he had taken with respondent in the fall of 1912, about eighteen months prior to the alleged assault, resulting in an offer on her part to submit for money. In the course of the story, respondent’s counsel objected to the evidence. The objection was overruled, but the court said: “You might call the prosecutor in here though — never mind, go ahead with the story.” This was a most damaging comment, either upon the character of the witness or upon the credibility of his testimony. True, no exception was taken to the court’s remark, and he did instruct the jury in' his general charge and in a general way to disregard any remarks of court or counsel. But under the rule announced in State v. Jackson, 83 Wash. 514, 522, 145 Pac. 470, these things cannot be permitted to preclude an insistence by a party upon his constitutional right to have his evidence submitted to the jury without comment by the court, when, as here, we cannot say that an instruction to disregard such comment would have removed -its effect. The reasons are so distinctly and forcibly put in the Jackson case and
It is argued that, in any event, the things to which the witness was testifying were incompetent in that they related to a specific incident of lewdness committed by respondent long prior to the time of the alleged assault, and, therefore, could have had no bearing upon the question of the paternity of the child. It is true, as we have already pointed out, that evidence of prior specific acts, when too remote to have any bearing upon the question of paternity, are inadmissible. But notwithstanding the fact that the court was admitting the evidence erroneously, the witness was offered by the appellant as one worthy of belief. The court’s comment was, therefore, as prejudicial to appellant as if the testimony of the witness had been competent. It was a reflection upon one of appellant’s witnesses, whose credibility was solely for the jury, thus tending to prejudice appellant’s whole defense. The solé province of the court in the premises was to pass upon the admissibility of the evidence. Having ruled it' admissible, he invaded appellant’s constitutional right by commenting upon the evidence in any way not reasonably necessary to a ruling on its admissibility. It would be a pernicious rule to permit an escape from one palpable error through the commission of another of a wholly different character. A fair trial does not consist in the matching of errors.
The' record before us presents many errors. While wé have been unable to say that any one standing alone, save that last noticed, was prejudicial, that one was clearly so.
Judgment reversed, and cause remanded for a new trial.
Morris, Main, and Chadwick, JJ., concur.