State v. Bailey

• Decision Date: 18 February 1903
• Citation: 71 P. 715,31 Wash. 89
• Parties: STATE v. BAILEY.*
• Court: Washington Supreme Court

71 P. 715

31 Wash. 89

STATE v. BAILEY.*

Supreme Court of Washington

February 18, 1903

Appeal from superior court, King county; Arthur E. Griffin, Judge.

George Bailey was convicted of the crime of rape, and appeals. Affirmed.

James Hamilton Lewis, Alex. S. Jeffs, and Robert Welch, for appellant.

Walter S. Fulton and Vince H. Faben, for the State.

HADLEY J.

Appellant was tried for the crime of rape, and a verdict of guilty was returned by the jury. A motion for new trial was denied, and judgment rendered upon the verdict, imposing a sentence of 12 years' imprisonment in the penitentiary. From said judgment this appeal is prosecuted.

It is first assigned as error that the verdict is unsupported by the testimony. It is urged that the testimony of the prosecuting witness is contradictory to the extent of being self-destructive. While her testimony may have seemed contradictory in some particulars, yet we think upon the whole record it is reasonable to conclude that the apparent inaccuracies were due to a misunderstanding upon her part as to portions of her examination. She was but a child of 12 years of age, and we think it reasonably appears from the record that she may have been embarrassed to the extent of showing some apparent confusion. Other corroborative testimony is such, however, that we think her testimony can by no means be said to be self-destructive. The appellant is a man of mature years, and was 50 years of age at the time of the alleged crime. The evidence shows, without contradiction that the two were together in appellant's sleeping room at night; that both were disrobed, and had been together occupying the appellant's bed. The officers found them both in a disrobed condition when they entered the room, and appellant himself admits that they had been occupying the bed together. The child testified, and in this she is corroborated by the woman who kept the place, that she went to appellant's lodging house in search of her sister who, it appears, had been lodging there for a time. Appellant knew her sister, and the child met him in the hall, and they talked about the sister. While waiting for the sister, she entered appellant's room. She remarked that she was hungry, and appellant went out and procured some food, which he brought to the room, and which she ate there. Soon after this, appellant left the room for a short time and during his absence the child testifies that she felt ill and 'threw up' what she had eaten. Upon appellant's return she told him of her illness, and he then gave her a glass of beer, a small portion of which she drank. There is no dispute as to the above-stated facts. The child further testified that soon after appellant's return to the room he locked the door, disrobed himself, and forcibly disrobed her, keeping his hand over her mouth meanwhile, and thereafter forcibly accomplished his purpose, which she plainly describes in her testimony. Appellant denies all this. He admits, however, that they were occupying the bed together when the officers rapped upon the room door, but denies any assault upon the child's person. While parts of the child's testimony may have seemed contradictory upon the subject of the accomplishment of the actual assault, yet her positive testimony upon that subject, we believe, was given in the light of a fuller understanding of the matter about which she was then interrogated, the apparent confusion being due, perhaps, to her extreme youth and to her embarrassment under her surroundings. Her testimony upon that subject, taken together with the attendant circumstances already detailed, was such as came within the peculiar province of the jury to weigh, and it cannot be said as a matter of law that it does not support the verdict.

It is further urged that the verdict is unsupported by the evidence because of certain testimony concerning the alleged impotency of the appellant. The evidence upon that matter was subject to being weighed by the jury as any other evidence. The only testimony of a positive nature upon that subject was that of the appellant himself. The testimony of a physician introduced by appellant upon that matter was to the effect that he could not say that appellant was impotent from any physical appearances which he discovered upon a personal examination. The jury heard the testimony of appellant, and it was for them to pass upon its truthfulness when considered with all other facts and circumstances in evidence before them. It has been held by this court that a verdict will not be disturbed if there is evidence tending to establish the material facts necessary to show the guilt of the accused. State v. Kronert, 13 Wash. 644, 43 P. 876; State v. Murphy, 15 Wash. 98, 45 P. 729; State v. Maldonado, 21 Wash. 653, 59 P. 489; State v. Coates, 22 Wash. 601, 61 P. 726. There was evidence in the case at bar tending to establish the material facts showing the guilt of the accused, and, unless errors are shown by the record, the verdict will not be disturbed.

It is assigned as error that the court denied appellant's motion to strike the testimony of the prosecuting witness on the ground that she did not understand the nature of an oath. The motion was not made until after the witness had testified in chief, and no objection upon that ground had been previously made to her testimony. But, even...