116 Wash. 600 | Wash. | 1921
Lead Opinion
J.— Appellant appeals from a judgment of conviction and sentence thereon, upon an information charging that, “on or about March 1,1920, in Spokane, Washington, she did then and there wilfully, feloniously and unlawfully aid, abet, encourage, and permit one Charles Jennings to commit the crime of carnal knowledge and abusing a female child under the age of eighteen years, to wit: one Tillie Schmidtz, the said Tillie Schmidtz being of the age of fourteen years and not then and there being the wife of the said Charles Jennings.”
The evidence for the prosecution tended to show these facts: Tillie Schmidtz lived in the town of Davenport, where appellant and her husband also resided for a number of years. In the summer of 1919, Charles Jennings met appellant in Davenport. Early in the year 1920, appellant and her husband and children left Davenport and moved to Spokane. The husband returned to Lincoln county within two days after
Jennings was a young man of about twenty-one years. Appellant was of the age of twenty-eight, a
The crime charged is that of carnally knowing and abusing a female child under the age of consent, as an accessory before the fact.
The distinction between an accessory before the fact and a principal, or a principal in the second degree, is abolished by § 2007, Rem. Code, which provides that all persons concerned in the commission of an offense, whether they directly counsel the act constituting the offense, or counsel, aid and abet in its commission, though not present, shall hereafter be indicted, tried and punished as principals. Section 2260, Rem. Code, also defines a principal as every person concerned in the commission of a felony, gross misdemeanor, or misdemeanor, whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent; and every person who directly or indirectly counsels, encourages, hires, commands, induces, or otherwise procures another to commit a felony, gross misdemeanor or misdemeanor, is a principal and shall be proceeded against and punished as such.
The state was required to, and did, elect to rely upon the alleged intercourse occurring Tuesday night, February 24, as the crime charged. The jury were instructed to disregard all evidence concerning any subsequent alleged intercourse, and to consider prior alleged intercourse, if any, for the purpose of corroboration of the offense alleged on February 24.
' It is elementary that every person who counsels a crime or contributes to it, directly or indirectly, has a guilty participation in that crime. Under our statute,
Appellant, complains that the court erred in its refusal to give requested instruction No. 2 of appellant, as follows :
“The jury are instructed that the said defendant, Florence Pickel, was under no legal obligation to prevent either by word or action the said Charles Jen*605 nings from having carnal knowledge of the said Tillie Schmidtz.”
We cannot give onr assent to the requested instruction as a statement of the law, under the circumstances here shown. The girl was a very young girl, the jnan was a young man, and the appellant very much older than either of them and a mature woman. The girl was an inmate of her household, and appellant stood somewhat in the relation of a parent towards her for the time being. Under such circumstances, it was her duty to, at least by word of warning, have prevented Jennings from having carnal knowledge of the girl, if appellant knew, or had reason to believe, that it was about to occur. It was held in State v. Jackson, 65 N. J. L. 105, 46 Atl. 764, that a woman who furnishes a room where a man and girl under the age of consent may indulge in sexual intercourse may be convicted as a principal in the second degree, or accessory before the fact. If that decision be sound in principle, as we consider it is, the instruction requested by appellant is very unsound. It has also been held that the presence of a defendant at the commission of a crime would be a circumstance tending to show complicity; It was for the jury to decide, upon all of the evidence and circumstances proven, whether the person who was present aided, assisted and abetted the perpetration of the offense. People v. Woodward, 45 Cal. 293, 13 Am. Rep. 176; State v. St. Clair, 17 Iowa 149, 22 L. R. A. (N. S.) 835; Brown v. State, 28 Gra. 199; Strawhern v. State, 37 Miss. 422.
Although appellant complains, the court correctly instructed the jury as to the elements of the offense, and the manner in which it should be proven, and it will serve no good purpose to further elaborate upon the instructions given or refused. Nor is it necessary
Other claimed errors, however, deserve discussion.
It is claimed that the court erred in allowing testimony to be introduced to the effect that appellant had stayed down town on several occasions away from the family, because the same was irrelevant and tended to prejudice the jury. The Schmidtz girl had testified that the appellant on other occasions, and on the nights when Jennings visited the house, absented herself and stayed down town somewhere. In her direct examination appellant attempted to justify herself and show the innocence of her staying down town at nights. She said she stayed down town one or two nights only and in company with lady friends. Having so testified in chief, cross-examination by the prosecution made her admit to a number of nights she stayed out all night, and attempted to show that she stayed down town, not with lady friends, but with men other than her husband, naming the men. She denied any such occurrences. When the questions were put to her as to staying certain nights in certain hotels with certain men, objections were interposed, and the court sustained the objections on the ground that the questions would call for repetition, and with this ruling we think appellant must be content. Whatever the ground of rejection was, it was rejected; nor can it be assigned as misconduct on the part of the prosecution that the questions were propounded to appellant upon cross-examination, when the evidence was rejected. Neither did the reason assigned by the court for the rejection con
Appellant also complains of the admission of testimony on tbe part of tbe state to tbe effect that appellant was a person of immoral character, when sbe bad not put her character in issue. These witnesses were allowed to testify to tbe effect that tbe reputation of appellant for morality and chastity in tbe community in which sbe lived was bad. Such evidence tending to impeach tbe character of a female witness was approved in State v. Coella, 3 Wash. 99, 28 Pac. 28, as being founded upon tbe text of Underbill, Criminal Evidence (2d ed.) § 237, and also in State v. Jackson, 83 Wash. 514, 145 Pac. 470, and State v. Gaul, 88 Wash. 295, 152 Pac. 1029, none of which cases have ever been overruled, and stand as tbe law of this state at this time. It is also tbe accepted rule in this state that, when a defendant becomes a witness, be or sbe is subject to impeachment according to tbe same rules as govern other witnesses.
Many other errors are claimed by appellant, but we find none which we consider prejudicial in anywise to a fair trial of appellant.
Finding no errors warranting a reversal, tbe judgment is affirmed.
Parker, C. J., and Bridges, J., concur.
Rehearing
On Rehearing.
[Bn Banc. February 14, 1922.]
On rehearing En Banc in this case, tbe majority of tbe court are of tbe opinion that tbe opinion heretofore rendered in this case, while correct in all other respects, is in error in affirming tbe action of tbe lower court in admitting testimony on the part of tbe state to tbe effect that appellant was a person of
Witnesses were allowed to testify to the effect that the reputation of appellant for morality and chastity in. the community in which she lived was bad. The cases cited in the opinion relate to female witnesses who were not the accused in the case, and the rule should not be extended to cases like this. The question presented is governed by our decision in State v. Shaw, 75 Wash. 326, 135 Pac. 20.
For this error the judgment is reversed and a new trial granted, and the former opinion to that extent is overruled.