State v. Camp

• Decision Date: 10 November 1965
• Docket Number: No. 37374,37374
• Citation: 67 Wn.2d 363,407 P.2d 824
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Joe CAMP, Appellant.

Page 363

67 Wn.2d 363

407 P.2d 824

STATE of Washington, Respondent, v. Joe CAMP, Appellant.

No. 37374.

Supreme Court of Washington, En Banc.

Nov. 10, 1965.

Rehearing Denied Jan. 11, 1966.

John M. Warnock, Everett, for appellant.

Robert Schillberg Pros. Atty., Gerald R. Gates, Deputy Pros. Atty., Everett, for respondent.

DONWORTH, Judge.

Appellant was charged with the crime of abduction by an information which contained the following allegations:

That he, the said Joe Camp, in the County of Snohomish, State of Washington, on or about the 12th day of April, 1963, without the consent of the person having legal custody of one Glenna May Penix, to-wit: her father, Kenneth Penix or her mother, Mrs. Jean Penix, wilfully, unlawfully and feloniously did take the same Glenna May Penix, then and there a female under the age of eighteen (18) years, to-wit: seventeen (17) years, for the purpose of marriage.

He pleaded not guilty and, after a trial before a jury, a verdict of guilty was returned. After his post-trial motions were heard and denied, he was sentenced pursuant to the mandatory provisions of RCW 9.79.050 to serve a maximum term of ten years in the state penitentiary. The court suspended the sentence upon five conditions which were stated in the judgment and sentence as follows:

IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED by this court that the sentence by suspended upon the following terms and conditions:

1. That the defendant serve One (1) year in the Snohomish County Jail; said term to commence upon the date of the signing of this judgment.

2. That the defendant be under the charge of the Board of Prison Terms and Paroles and follow implicitly such instructions, rules, and regulations as may be adopted and promulgated by said Board for the conduct of the defendant during the whole term of the sentence herein imposed, that, Ten (10) years.

3. That the terms of probation herein imposed shall at all times be subject to revocation, modification and suspension by this court as provided by law.

4. That the defendant shall refrain from any contact in any manner with Glenna Mae Penix, a/k/a Glenna Mae Camp, during the sentence consisting of one year including contact by mail, telephone or otherwise.

5. That the defendant shall pay cost of the action within one year after release from County Jail. ¹

Upon his appeal to this court, appellant has made six assignments of error, three of which relate to certain rulings made by the court during the trial and three of which complain of the court's refusal to give three proposed instructions requested by him.

We shall briefly state the facts as shown by the state's evidence. Appellant did not take the stand and did not call any witnesses to testify on his behalf. Consequently, the only evidence for the jury to consider was the testimony of the state's five witnesses.

Glenna May Penix was born January 11, 1946, and at the time of her marriage to appellant was 17 years and 3 months old. Prior to the marriage, she resided with her parents in Everett on the same side of the street on which appellant resided. There was only one residence between their two houses.

For about a year prior to the marriage, Glenna had been employed by appellant to do bookkeeping work for him. She worked part of the time in appellant's garage and part of the time in his house.

Glenna's parents were acquainted with appellant and were aware of his desire to marry their daughter. Each of her parents testified at the trial that neither of them had ever consented to Glenna's marrying appellant prior to the time the marriage took place, although they had consented to their being engaged. They objected to Glenna's marrying until she became 18 years of age.

On the morning of April 12, 1963, Glenna told her parents that she was going down town with her girl friend to shop. They took a taxicab from her parents' home, and Glenna did not return. Later in the day, her father received a telephone call from appellant in which he stated that he and Glenna were married.

Appellant and Glenna were married by a justice of the peace at his law office in Burlington, Washington, on April 12, 1963. The record does not disclose how or with whom Glenna had traveled from Everett to Burlington. The justice testified that he had performed the ceremony, and that the contracting parties had furnished him a marriage license issued by the county auditor. He identified a certified copy of his return which was signed by him and by the contracting parties. This was admitted in evidence without objection.

The only other witnesses who testified at the trial (besides the parents and the justice) were two officers of the Everett police department. We do not consider it necessary to discuss their testimony since it has no bearing upon appellant's assignments of error.

Appellant first assigns error to the trial court's striking the negative answer of Glenna's father when asked by appellant's counsel, 'Do you now have any objection to this marriage?' The trial court was correct in directing the jury to disregard the answer. The question asked for an immaterial answer. Appellant was charged with taking Glenna for the purpose of marriage on April 12, 1963, without the consent of her parents. If the jury found that he did so (as they evidently did), appellant was guilty of the crime charged. Whether either or both of her parents had any objection to the marriage at the time of trial (September 26, 1963) was immaterial. In such a case, parental consent may not be given nunc pro tunc for the purpose of furnishing the abductor with a defense which did not exist at the time of the marriage.

Next, appellant complains that the court erred in denying his motion for a continuance at the commencement of the trial because of a matter then pending in this court which he argues involved the same problems.

The proceeding referred to is In re Penix, 63 Wash.2d 977, 387 P.2d 371 (1963), which was an application by Joseph O. Camp (who is appellant herein) for a writ of certiorari to review an order of the juvenile court entered June 6, 1963, declaring his wife to be a dependent child. In that proceeding, this court never had occasion to consider the merits because, on December 5, 1963, it ordered that the writ of certiorari be quashed for lack of jurisdiction.

We are unable to see what bearing the juvenile court proceeding had on the crime alleged to have been committed by appellant on April 12, 1963. Glenna was not a ward of the juvenile court on that date. Compare State v. Speer, 36 Wash.2d 15, 216 P.2d 203 (1950).

The trial court's stated reasons for denying the motion for continuance were, first, that it had not been timely made, and,

Secondly, the motion is denied in addition on the ground that there is no showing that the defendant was deprived from seeking those witnesses he wished to utilize in the defense of his case for the purpose of discussing this case with them. All we have are oral statements not substantiated by any corroborating evidence or affidavits which would enable the State to rebut. We will now proceed with the trial.

We cannot say that there was any abuse of the trial court's discretion in denying appellant's motion for a continuance.

At the same pretrial hearing held in the trial judge's chambers on the day of the trial, appellant's counsel called the court's attention to an affidavit signed by Glenna's parents and filed by their own counsel, stating, in substance, that it was their desire that the charge of abduction against appellant be dismissed with prejudice and that no prosecution be had thereon. In denying appellant's motion for dismissal, the trial court said:

Well, I am denying this motion for two reasons: Number one is that the sole discretion as to whether a motion for dismissal is made is based--in a criminal case--is based upon affidavits having to do with ends of justice best being served; and secondly, as I understand it, the complaining witness is a ward of the Court, am I correct in that Counsel? I should say, the girl involved here is a ward of the Court and any disposition concerning her person or even concerning any proceedings in which she may be involved must be performed subject to the approval of the Juvenile Court and she is a ward of the Court.

We agree with the trial court's first reason for denying the motion and hold that there was no abuse of discretion in denying the motion. In this connection, respondent invites our attention to RCW 10.46.090, which provides:

The court may, either upon its own motion or upon application of the prosecuting attorney, and in furtherance of justice, order any criminal prosecution to be dismissed; but in such case the reason of the dismissal must be set forth in the order, which must be entered upon the record. No prosecuting attorney shall hereafter discontinue or abandon a prosecution except as provided in this section.

The state contends that, under this statute, only the prosecutor or the court, on its own motion, may cause the dismissal of a criminal action, and that no other person has standing to request such dismissal. We need not pass on this contention because, for the reason already stated, there is no merit in appellant's third assignment of error.

Next, we consider the three requested instructions, the refusal of which to give, appellant contends, constituted reversible error.

Appellant's requested instruction No. 1 would have instructed the jury that 'if you find that the young woman (naming her) went to the defendant of her own volition, that is not a taking within the meaning of the statute.' That a taking for the purpose of marriage need not be by force in order to come within the purview of RCW 9.79.050 was held by this court in State v. Richards, 88 Wash. 160, 152 P. 720 (1915), where it was said:

By this statute, every person who shall take a female under the age of 18 years for the purposes therein stated is guilty of...