116 Wash. 97 | Wash. | 1921
The appellant appeals from a verdict and judgment convicting him on an information charging him with having wilfully, unlawfully and feloniously carnally known and abused Bula Morgus, a female child over the age of ten years and under the age of fifteen years, and not the wife of appellant, in Lewis county, Washington, on December 2, 1918.
The evidence in the case shows that, on December 2, 1918, Bula Morgus was almost twelve years of age. Her parents reside in South Bend, Washington. For about two weeks prior to December 2,1918, she had been on a visit to her uncle in St. Helens, Oregon. Leaving St. Helens to return home, she was accompanied by the wife of her uncle to Kalama, Washington, she continuing the journey from Kalama, Washington, by herself, to Chehalis, Lewis county, where it was necessary for her to make a change of trains to proceed to South Bend. While at the depot in Chehalis, she became acquainted with appellant. He took her to a restaurant and gave her her dinner, and when she had finished ánd returned to the depot the train had departed for South Bend, so that she could not go on that night. Appellant then suggested that they go to Centralia and secure rooms there, to which the girl consented, and they went by street car to Centralia. Appellant took the girl to the Landers Hotel, and registering for both as “Mr. and Mrs. Brown,” they were assigned a room. The girl-was not in the presence of the landlady of the hotel when appellant registered. Appellant and the girl went to a show, and returned afterwards to the hotel and went up to the room. The landlady of the hotel shortly afterwards went to the room and asked appellant if the girl was his wife. He stated that she was. The landlady asked him why the girl wore her hair down in braids, and wore such short dresses.
The first assignment of error by appellant is that the court erred in refusing him the right to lay the foundation for impeaching witness John Morgus, the father of the prosecuting witness.
Morgus testified as witness for the state and, among other things, testified as to the visit of the girl to St. Helens, her return journey, stopping at Chehalis, and going on to Centraba with appellant. All of this testimony was over the objection of counsel for appellant arid, on motion, was stricken by the court and the jury instructed to disregard it. Counsel for appellant then questioned Morgus as to his acquaintance with a Mrs. Leber of South Bend, and upon objection being sustained thereto upon the ground that it was not proper cross-examination, appellant offered to lay the foundation by the witness that he had made statements to Mrs. Leber to the effect that he did not know anything about the journey of the girl to Chehalis and Centraba from St. Helens, and that the girl did not always tell the truth in any event.
The testimony of Morgus having been stricken respecting the journey of the girl from St. Helens to Chehalis and Centraba, the offer of proof made by counsel for appellant was certainly improper. The proposed questioning of the witness Morgus was not within the scope of his direct examination, was not
The next error claimed is that the court allowed the witness Amanda Williams to testify as an expert and give impeaching testimony of Dr. Kennicott, who was another of the state’s witnesses.
No testimony was asked of Mrs. Williams as an expert. She was merely asked to state what she saw at the examination of the girl by Dr. Kennicott. This was perfectly proper and competent. The whole of her testimony was confined to what she observed during the examination. Her testimony disagreed somewhat with that of Dr. Kennicott, but the state is not bound to produce witnesses who agree entirely in their statements concerning a transaction. The question of cred-' ibility of witnesses is for the jury to weigh and determine.
The next error assigned is that the court refused to grant a continuance to enable appellant to secure the testimony of one S. M. Kagan. Ragan was a person mentioned by appellant as having occupied a room'in another hotel in Centralia than the one shown by the state, in company with appellant on the night of December 2-3, 1918. He had been subpoenaed as a witness at the previous trial of the same case in September, 1919, and appeared two days late for the trial. Upon this trial counsel for appellant made an attempt to show why Ragan was late at the previous trial, and also some kind of a written showing to the court to explain the necessity of the attendance of Ragan as a witness, the materiality of his testimony, and why counsel believed he was not present when the case was tried in March, 1920. Whatever showing appellant made to the trial court as to the materiality of the testimony of Ragan and the circumstances excusing his
The next error assigned is that the court allowed Mrs. Landers, a witness for the state, to restate the whole case in rebuttal. There is no merit whatever in this contention. Mrs. Landers was the landlady of the hotel at which it was shown appellant and the girl stayed all night. She was asked and answered four questions to rebut evidence given by appellant. Her testimony in rebuttal was proper rebuttal testimony of the testimony of appellant, which had not been covered by her testimony in the ease in chief. In any event, it cannot be presumed that appellant was prejudiced thereby.
The judgment is affirmed.
Parker, C. J., Bridges, Mackintosh, and Fullerton, JJ., concur.