51 Wash. 372 | Wash. | 1909
Lead Opinion
— The appellant was convicted of the crime of rape, alleged to have been committed upon a girl under the age of eighteen years. He appeals from a judgment of conviction based upon the verdict of a jury.
Pie assigns several errors, but we think there is no merit in any of the assignments except the one based upon the motion for new trial upon the ground of newly discovered evidence. The prosecuting witness was a girl just past fifteen years of age at the time of the alleged rape. She testified at the trial that she had voluntarily submitted to sexual intercourse with the appellant on April 21, 1907, and at different times thereafter; that on the night of April 21, she occupied a room with the appellant in a lodging house in the town of Monroe, in Snohomish county; that the appellant, after spend
The jury, upon substantially this evidence, returned a verdict of guilty as charged. On the next day a motion for new trial was filed, upon the ground of newly discovered evidence, among others. Thereafter the prosecuting witness voluntarily wrote a letter to the appellant’s counsel, stating in substance that the story she told at the trial was false. She after-wards made an affidavit in which she stated “under oath, that her testimon}' in said cause above mentioned wherein she testified that the defendant had had sexual intercourse with her was and is entirely false and without any foundation whatever, and that she never had sexual intercourse with said defendant at any time.” About a week later she made another affidavit to the prosecuting attorney, stating that her statements in the first affidavit were false. Thereafter the motion for new trial came on for hearing, and the prosecuting witness was called to the stand and testified orally in.explanation of these inconsistent affidavits. She then insisted that her first affidavit was correct, and that she had never had sexual intercourse with the appellant. She also explained her inconsistent positions by saying that she had testified as she did at the trial because she was threatened with sentence to the reform school unless she did so; that she made the first affidavit voluntarily, and
This ruling of the trial court is assigned as error, and we think the assignment, must be sustained. Outside of the evidence of this girl, there is no evidence of the offense to submit to the jury. There is slight corroboration to the effect that the defendant was seen to come out of the room about ten o’clock one morning; but this fact, without the statement of the girl as to what he was there for, would not justify a conviction and penal sentence. It is the rule that questions of this character raised upon motions for new trial are largely discretionary with the trial court, and if these facts had been placed before the jury at the trial and the verdict of guilty had been returned, we would now say, as we did in State v. Katon, 47 Wash. 1, 91 Pac. 250:
“The witness, therefore, being a lawful one, it' is not the province of this court to weigh her testimony. The jury do that in the first instance, and the trial court afterwards when the evidence is challenged, but when both the jury and the trial court say that the evidence is sufficient the question is ordinarily concluded.”
The jury at the trial did not have the fact before it that the witness had made sworn statements contrary to her testimony. The witness made such sworn statements afterwards. It is true she testified that she had stated when not under oath that she had never had sexual intercourse with the appellant, but it is not uncommon for persons to deny such things when not under oath and afterwards, when they are on oath, admit the fact. Such witnesses may be worthy of belief, but it is rare that any person will testify to a truth and subsequently testify that such testimony was false. The evidence of such witnesses, uncorroborated in essential facts, ought to be received with caution, to say the least, and a man ought not to be sent to the penitentiary until a jury has had an oppor
Considering all the facts, we are of the opinion that the trial court abused its discretion in refusing to grant a new trial. The judgment is therefore reversed, and the cause remanded with direction to the lower court to grant a new trial.
Hadley, C. J., Dunbar, and Crow, JJ., concur.
Dissenting Opinion
(dissenting) — The trial judge who saw the prosecuting witness was in a much better position than is this court to get at which of the times the prosecuting witness testified to the truth; and as he did not believe her subsequent confession, this court ought not to interfere with the verdict. I therefore dissent.
