18 Wash. 670 | Wash. | 1898
'The opinion of the court was delivered by
The information upon which the appellant was convicted is as follows (omitting formal parts):
“ He, the said Hewton Hunter, in the county of King, •state of Washington, on the 22d day of Pebruary, A. D. 1897, in and upon one Kate Simey, a female child'under ■the age of twelve years, to-wit, of the age of eight years, an*672 assault did make with, the intent then and there to commit the crime of rape in and upon the said Kate Simey, and did then and there beat, bruise, wound and ill-treat the said Kate Simey with the intent then and there her, the said Kate Simey, by force and violence and against her will,, -unlawfully and feloniously to ravish, carnally know and abuse.”
From the judgment of conviction and the order denying a new trial he has appealed. Error is predicated' upon various rulings occurring at the trial. We think it was not error for the court to permit the mother of the prosecutrix, who was a witness, to describe the condition of the clothing of the child, nor to state what she found upon it. It was descriptive merely. Nor was it error to permit the mother to testify that the prosecutrix made complaint to her immediately, or at least within an hour, after the assault was committed. The authorities bearing upon this question are numerous and very conflicting. All or nearly all of them hold that it may be shown that the prosecutrix made complaint immediately or soon after the alleged injury was committed. In addition to this, numerous cases hold that the particulars of the complaint may be shown. State v. DeWolf, 8 Conn. 93 (20 Am. Dec. 90); Burt v. State, 23 Ohio St. 394; Johnson v. State, 17 Ohio, 593; Benstine v. State, 2 Lea, 175 (31 Am. Kep. 593); Phillips v. State, 9 Humph. 246 (49 Am. Dec. 709); State v. Murphy, 16 R. I. 528 (17 Atl. 998); State v. Fitzsimon, 18 R. I. 236 (27 Atl. 446, 49 Am. St. Rep. 766). After a pretty thorough examination of the cases we think the better rule is to restrict the evidence to the fact of complaint, and that anything beyond that is hearsay of the most dangerous character. 2 Bishop, Criminal Procedure, § 963; Wharton’s Criminal Law, § 566; Baccio v. People, 41 N. Y. 265; Scott v. State, 48 Ala. 420; Pleasant v. State, 15 Ark. 624; People v. Graham, 21 Cal. 261;
Indorsed upon the information as a witness for the state was the name of Eugene Sayer. At the trial the witness stated that his name was Eugene Sears. Appellant objected to his testifying on the ground that his name was not indorsed upon the information. The court overruled the objection. Appellant concedes that had the prosecutor, on ascertaining his mistake, applied to the court to rectify it, he might have had leave of court to indorse the correct name of the witness, and that, had such course been pursued, appellant would have had no ground for exception. We are unable to perceive how the appellant was prejudiced by the course that was pursued. Eo application was made for continuance, and we think the court did not err in overruling the objection.
At different stages of the trial and also at the close of the
The state introduced evidence to show the character of foot prints found near the scene of the assault shortly after it was committed, and the appellant offered to show by certain witnesses that they had heard one Bred Sears, who was at the time of the trial absent from the state, say that the foot-prints referred to were made by him (Sears). We think that the testimony was properly excluded. It was clearly hearsay.
The following instruction was requested by the appellant and the refusal of the court to give it constitutes the twelfth assignment of error:
“ The court instructs you that in order to find defendant guilty of the offense charged in this information, that the alleged assault with intent to commit rape must have been committed without the consent of Kate Simey, the party injured.”
The case of Whitcher v. State, 2 Wash. 286 (26 Pac. 268), is cited by appellant in support of the instruction as asked. It is not clear that the rule contended for by the appellant received the sanction of a majority of the court in that case. It was agreed to by two of the judges. Of the other members of the court, two concurred specially in the judgment of reversal on the ground that the informa
Since the decision in Whitcher v. State was reached, we have held the act of 1886, p. 84, which attempted to amend the prior law (§ 28, Penal Code), by substituting the word “ sixteen ” for the word “ twelve’ void. State v. Halbert, 14 Wash. 306 (44 Pac. 538); State v. Dillon, 14 Wash. 703 (46 Pac. 1119). And the present law on the subject fixes the age of consent at eighteen years (Laws 1897, p. 19, Bal. Code, § 7062). However, the principle underlying the question now under discussion is unaffected by these changes. All of the authorities agree that force and want of consent are conclusively presumed where carnal knowledge is had of a female under the age of consent. But a distinction is made in some of the cases—in so far as relates to the consent or non-consent of the female— between an assault with intent to carnally know a female child and carnal knowledge of such child. There are a few, and only a few American, cases which hold that the statute which makes the child’s consent immaterial in defense of the substantive crime does not extend to the assault, upon the common law theory that violence consented to does not constitute an assault. Smith v. State, 12 Ohio St. 466 (80 Am. Dec. 355); State v. Pickett, 11 Nev. 255 (21 Am. Rep. 754); Bishop, Statutory Crimes (2d ed.), §496.
We do not think that there is, in principle, any sound basis for the distinction. The offense of carnally knowing
As is well said in Commonwealth v. Roosnell, supra, “ to speak of an assault upon her without her consent, with intent to carnally know and abuse her with her consent, seems to involve a contradiction in terms.” We conclude therefore that the court did not err in refusing the instruction. In addition to what has been said, the instruction was properly refused because there was no evidence upon which it could be predicated. The evidence hearing upon the question of the assault was all one way, the corpus delicti was fully established by evidence that was not questioned or contradicted, the efforts of the appellant being directed to the other proposition involved in the charge, viz.: the identity of the appellant. There being no evidence ripon which to base such an instruction, a refusal to give it would not constitute reversible error.
Lastly, it is contended that the court erred in denying
The judgment is affirmed.
Scott, C. J., and Dunbar, Anders and Beavis, JJ., concur.