State v. Clark, 22335.

• Decision Date: 28 April 1930
• Docket Number: 22335.
• Citation: 287 P. 18,156 Wash. 543
• Parties: STATE v. CLARK.
• Court: Washington Supreme Court

287 P. 18

156 Wash. 543

STATE v. CLARK.

No. 22335.

Supreme Court of Washington

April 28, 1930

Department 1.

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

Franklyn G. Clark was convicted of rape, and he appeals.

Affirmed.

J Peter P. Healy, of Tacoma, for appellant.

Bertill E. Johnson, Ray C. Roberts, and Byron D. Scott, all of Tacoma, for the State.

MILLARD J.

Defendant was convicted of the crime of forcible rape, and has appealed from the judgment and sentence.

About 4 o'clock of the afternoon of December 6, 1928, the prosecuting witness, age fourteen years, departed from school at Roy, Wash., for her home. While following a trail through a wooded section, a man jumped out behind the girl from a blind alongside the path, bound a white cloth over her face, picked her up from the ground where she had fallen, carried her some distance further into the woods, and forcibly had sexual intercourse with her. Upon the consummation of the crime, the cloth was removed from the girl's face and she was permitted to arise. She then for the first time saw the man who had assaulted her. He had on dark overalls, a dark coat and cap, brown high-topped shoes with the overalls rolled up a short distance. He also had a mask of white cloth over his face. At the trial the girl identified the cloth which the man had tied about her face from the peculiar odor with which it was charged, and which sickened her and made it difficult for her to breathe while it was over her face. The cloth identified by the girl is one that was taken from the suitcase of the appellant at the time of his arrest. Upon her release, the girl, when she got back to the trail, turned and saw the man standing. She ran to her home, and there related the occurrence to her mother. That evening the appellant was arrested in his room in a hotel at Roy, where was found a dirty cloth wrapped up in a clean towel, and both tucked away in his suitcase. Upon the appellant was found a three-bladed knife, one blade of which was covered with pitch. Between 4 and 5 p. m. the afternoon of the crime the appellant brought three cedar boughs into the kitchen of the hotel where he lived. The appellant admitted that the three boughs which were introduced in evidence were cut by him with the knife taken from his person.

At the point where the man jumped from the woods on to the girl while she was walking along the trail was a blind consisting of fir saplings laid against a fir tree, the fir tree standing alongside the trail. The fir saplings had been cut with a knife, and the cut ends were sticking in the ground, and the ground directly under the lower branches of the fir tree and behind the fir saplings had been freshly disturbed. It appears from the evidence clearly that the fir saplings which were cut for the construction of the blind and the three cedar boughs appellant admitted cutting with his knife were all cut by the same blade. It was the theory of the state that the appellant prepared the blind a few days prior to the assault, and there laid in wait to attack the girl. About the same hour of the afternoon (3:45 p. m.) three days prior to the commission of the crime, the appellant was seen in the woods near where the assault took place, and was at that time unable to give a satisfactory explanation to one who asked him what he was doing. One witness saw the prosecuting witness walk down the trail leading into the woods near the scene of the crime about five minutes after 4 December 6, 1928, and about 4:30 p. m. a man came out of the woods and crossed a field in a northerly direction and in the direction of the cedar tree from which three branches were cut with the knife taken from the appellant. The man had his collar pulled up in a manner to conceal his head. Another witness saw the appellant about 3:30 p. m., about one-half to three-quarters of an hour prior to the commission of the crime, on the railroad tracks east of Roy. At that time the appellant had on high-topped shoes with his overalls rolled up a short distance.

During the assault the man talked to the girl. She also heard the appellant talk the night of December 6th, shortly after he was arrested. She testified that the voice of the appellant was the same as the voice of the man who attacked her. She saw the man in the woods stand up, and she testified at the trial that the appellant was the same height as the man who attacked her and was of the same general size. The fir saplings forming the blind and the three cedar boughs appellant admitted he cut were introduced in evidence, and the photographs of the cut surface of each of the saplings and each of the cedar boughs were submitted to the jury as evidence that the same knife, that of appellant, cut all of them. Appellant was found guilty as charged, and sentenced to serve a penitentiary term of from twenty to thirty years.

Counsel for appellant complains that he was not permitted to inspect a sworn statement obtained by the prosecutor from the appellant between the time of appellant's arrest and the time the information waf filed. He also assigns as error the refusal to permit him to inspect certain articles taken from the appellant.

The state did not make any use of the written statement on the trial of the appellant. If the appellant could disclose information to the prosecuting attorney, he certainly could have given the same information to his counsel. If the state had introduced the statement to impeach the testimony of the appellant a different question might have been presented. However, the statement was not used, nor did the appellant take the stand in his own behalf. While the jury were instructed that no inference of guilt should be drawn from failure of the appellant to take the stand, it does not follow that we can infer, as suggested by argument of counsel, that failure of appellant to testify was due to fear of impeachment by the written statement he had made to the prosecuting attorney. Counsel may know that appellant did not take the stand because of that, but we do not know it nor may we so assume.

The only articles taken from the appellant that were introduced in evidence were the knife and the cloth. Counsel for appellant was permitted prior to the trial to inspect the knife. He was also permitted to examine the cloth before it was introduced in evidence. No request was made at any time that he be permitted to have the articles examined by experts. The trial court did not abuse its discretion in this matter.

'No request was made that the garments be placed at the disposal of the appellant so that he could have them microscopically examined by his own experts, and, of course, there was no denial of such a request.' State v. Allen, 128 Wash. 217, 222 P. 502, 505.

Counsel for appellant next contends that in ordering the appellant to stand up and walk over in front of the chair upon which the prosecuting witness was sitting, to enable her to identify the appellant, the court compelled the appellant to be a witness against himself.

The contention is without...