State v. Carter

• Citation: 8 Wash. 272,36 P. 29
• Court: United States State Supreme Court of Washington
• Decision Date: 21 February 1894
• Parties: STATE v. CARTER.

36 P. 29

8 Wash. 272

STATE v. CARTER.

Supreme Court of Washington

February 21, 1894

Appeal from superior court, Lincoln county; Wallace Mount, Judge.

G. E Carter, convicted of seduction, appeals. Reversed.

Hoyt J., dissenting.

Thomas C. Griffitts, for appellant.

J. W Merritt, for the State.

SCOTT J.

The defendant was convicted of seduction, and has appealed. It is contended that the proof was insufficient to show any seduction, in that there was no evidence of any promise or seductive influences on the part of the defendant, and that the verdict was contrary to the weight of the evidence. There was testimony to show a number of attempts by the defendant to have sexual intercourse with the prosecuting witness beginning when she was but 12 years of age. Such attempts were carried to the extent of a contact of the sexual organs, but it appears by the testimony of the complaining witness that there was no actual penetration until after several such attempts had been made. She was unable to name the first time when the defendant did have complete sexual intercourse with her, but her testimony, if true, shows that he did have intercourse with her a great many times, extending over a period of two years or more. Her testimony was unsatisfactory in many respects, as it appears by the record, but its truthfulness was a matter for the jury to determine. She was but 15 years old at the time of the trial, and had recently given birth to a child. She was corroborated, to some extent, by other witnesses. The defendant was a married man, 25 years of age. He denied having had any sexual intercourse with the complainant, or of having attempted to have any. As to the inducements held out, the testimony was meager. There was testimony that he told her that he would not hurt her, and would not do her any harm; that it was not wrong to have sexual intercourse, and told her not to tell any one; that he kissed and fondled her, and felt of her person. According to the complainant's testimony, these representations were made, and this conduct occurred, upon a number of occasions when he attempted to have intercourse with her, and also thereafter, when he succeeded. We would not feel justified, under all the circumstances proven, in interfering with the conviction upon the ground of the improbability of the truthfulness of her testimony, and we think the inducements held out, considering her tender age, were sufficient to constitute the offense seduction.

In considering this case, we cannot allow the condition of appellant's briefs and the record to pass unnoticed. A multitude of questions are argued which seem to have no foundation in the record, and for that reason some, which may arise on a new trial, and which would otherwise be noticed, must be passed. Many of such points purport to be based upon parts of the record, the pages whereof are not indicated in his brief, thus necessitating searches through the entire transcript by the court, and often resulting in a failure to find any such. Had this been fully understood by the court before the argument, the case would not have been heard, and severe terms would most likely have been imposed upon counsel before an amendment thereof would have been permitted to get the case in a condition to be heard.

One of the points urged by appellant as error has its foundation in a motion which he made for a continuance of the trial upon the ground of the absence of a material witness. It is contended by appellant that the prosecuting attorney, to avoid a continuance, admitted that certain testimony set forth in the affidavit would be given by such witness if present, and that the court allowed certain parts of it to be considered as given. After a diligent search we have failed to find any such admission or action by the court set forth in the record. However, counsel for the respondent in his brief, practically admits that such action was had in the premises, and this view is strengthened by the fact that testimony was introduced by the state to impeach the witness in question, which would, of course, have been entirely irrelevant and inadmissible if the testimony of such witness was not considered in the case. In view of this, and of the fact that it is a criminal case, and that upon the oral argument the case was treated as though such testimony had been given, we shall consider it as of record. The witness referred to was one Mrs. Franz, and it appears by the affidavit in question that she would testify that the prosecuting witness told her, after the seduction complained of, in substance, that she had had sexual intercourse with a number of men,...