State v. Clayton

• Decision Date: 18 February 1949
• Docket Number: 30707.
• Parties: STATE v. CLAYTON.
• Court: Washington Supreme Court

202 P.2d 922

32 Wn.2d 571

STATE v. CLAYTON.

No. 30707.

Supreme Court of Washington

February 18, 1949

Department 1

M. R Clayton was convicted of an unlawful and felonious attempt to carnally know and abuse a female child, not his wife, of the age of fifteen years, and he appeals.

Affirmed.

Appeal from Superior Court, Walla Walla County; B B. Horrigan, judge.

John C Hurspool, of Walla Walla, for appellant.

Albert N. Bradford, of Walla Walla, for respondent.

STEINERT Justice.

Defendant was by information charged with an unlawful and felonious attempt to carnally know and abuse a female child, not his wife, of the age of fifteen years. Trial Before a jury resulted in a verdict of guilty. From a judgment of conviction and sentence, defendant appealed.

The state's evidence, although disputed by the appellant, was ample to support the verdict of the jury, and no contention to the contrary is made on this appeal.

Appellant's assignments of error are directed (1) to an instruction given by the trial court, and (2) to alleged misconduct on the part of the prosecuting attorney.

The instruction upon which error is assigned reads 'You are instructed that it is the law of this State that a person charged with attempting to carnally know a female child under the age of eighteen years may be convicted upon the uncorroborated testimony of the prosecutrix alone. That is, the question is distinctly one for the jury, and if you believe from the evidence and are satisfied beyond a reasonable doubt as to the guilt of the defendant, you will return a verdict of guilty, notwithstanding that there be no direct corroboration of her testimony as to the commission of the act.'

Appellant does not contend that this instruction constitutes an incorrect statement of the law. In fact, it is conceded that under the law as it has existed in this state since the enactment of chapter 100, p. 298, Laws of 1913, repealing Rem. & Bal.Code, § 2443, corroboration of the prosecuting witness in cases of this nature is not required. State v. Morden, 87 Wash. 465, 151 P. 832; State v. Davis, 20 Wash.2d 443, 147 P.2d 940.

Appellant challenges the instruction solely upon the ground that it constitutes a comment on the evidence, violative of Article IV, § 16, of the state constitution, in that the instruction singles out the prosecutrix from all the other witnesses and tells the jury that the weight of her testimony is such that a conviction can be based upon it alone, and, further, in that the instruction fails to state that the guilt or innocence of the appellant is to be determined from all the evidence and surrounding circumstances shown at the trial.

The constitutional provision that a trial judge shall not charge with respect to matters of fact, nor comment thereon, means no more than that the judge is forbidden to convey or indicate to the jury, by word or act, his personal opinion as to the truth or falsity of any evidence introduced upon the trial. State v. Brown, 19 Wash.2d 195, 142 P.2d 257; State v. Cooper, 26 Wash.2d 405, 174 P.2d 545; State v. Hart, 26 Wash.2d 776, 175 P.2d 944.

In the early case of State v. Mitchell, 32 Wash. 64, 72 P. 707, 708, contention was made by the defendant therein that a certain instruction given by the trial court offended the constitutional provision referred to above. Disposing of that contention, this court said:

'It is the duty of the court to apply the law to the respective theories of the state and the defendant. While the court would go beyond its province in a discussion of the testimony which would indicate to the jury what weight the court attached to such testimony, yet it may tell the jury, that if it finds certain facts from the testimony, what the law is applicable to such facts, providing, always, of course, that such instruction must be confined to testimony given in the case.'

In the case at bar, the trial court expressed no opinion as to the truth or falsity of the testimony of the prosecutrix, or as to the weight which the court attached to her testimony, but submitted all questions involving the credibility and weight of the evidence to the jury for its decision thereon.

In State v. Rosi, 120 Wash. 514, 208 P. 15, 16, this court held that, upon an issue concerning an alibi, an instruction containing the words 'the incriminating evidence introduced by the state,' did not, under the facts and circumstances of that case, constitute an unlawful comment on the evidence, inasmuch as the jury was repeatedly told that the jurors were the sole judges of the facts and of the force and effect they should give to the testimony of each witness, and that they should disregard any seeming comment made by the court upon any question of fact.

Instructions of this same nature and effect were carefully and comprehensively given by the trial court in the case now Before us.

In State v. Roberts, 144 Wash. 381, 258 P. 32, where it was contended that an instruction amounted to a comment on the evidence, this court disposed of the contention with the sententious statement that 'The trial court is not forbidden to make reference to the evidence, but is only forbidden to comment thereon.'

It is true that, in the instruction of which complaint is here made, the trial court in a sense singled out the testimony of the prosecutrix. However, what the court thereby told the jury was not that the uncorroborated testimony of the prosecutrix in the instant case was sufficient to convict the appellant of the crime with which he was charged, but, rather, that in cases of this particular character, a defendant may be convicted upon such testimony alone, provided the jury should believe from the evidence, and should be satisfied beyond a reasonable doubt, that the defendant was guilty of the crime charged. That was a correct statement of law.

No case has been cited to us wherein, upon a charge of carnal knowledge of a minor female child, an instruction comparable to the one with which we are here concerned was given. However, counsel for respondent has called our attention to two cases involving a situation said to be analogous to the one presented in the instant case. Those cases are: State v. Smith, 127 Wash. 588, 221 P. 603, and State v. Dahl, 139 Wash. 644, 247 P. 1023.

In the Smith case, supra, the defendant was charged with, and convicted of, the crime of unlawful possession of intoxicating liquor. On appeal, error was assigned upon the giving of two instructions. In one of these instructions the trial court told the jury, in effect, that the state had the right to employ special officers for the purpose of collecting evidence in such cases, and that it was for the jury to determine from all of the evidence in the case, including that of the special officers, whether the defendant was guilty of the crime charged against him. In the other instruction, the court informed the jury that where such special officers, in their efforts to collect evidence, sought to, and did, purchase intoxicating liquor from the defendant, their conduct in that respect would not make them accomplices or parties to the offense, and that therefore it was not necessary in such a case that their testimony should be corroborated Before the jury could find the defendant guilty.

The error assigned by the defendant in the case was based upon the contention that 'taken as a whole, these instructions could not do otherwise than given to the jury the impression that the state's witnesses were entitled to special consideration, and amounts to the comment on the evidence prohibited by the constitution.'

Answering that contention, this court said:

'The instructions are given Before the argument of counsel, and the trial court understands from the nature of the trial the legal points involved in the controversy, and should instruct the jury accordingly. In the absence of such instructions, the attorneys would be in a hopeless legal controversy. Our Constitution provides that the court shall declare the law. Const., art. 4,§ 16, supra (Rem.Comp.Stat. § 339) [P.C. § 8504].

'By the nature of the defense, as shown by the cross-examination, the court recognized that the legal status of these special officers was brought into question, and instructed the jury upon these legal points in controversy. The instructions properly state the law. They may have been given to prevent counsel for appellant from arguing to the jury that the testimony of the witnesses should not be accepted, because they were accomplices, and, not being deputy sheriffs, were unauthorized under the law to make such investigations. In view of the fact that one who requests the sale of liquor is to a certain extent involved in the transaction, it was proper for the court to tell the jury that under certain circumstances such persons are not accomplices and that it is not necessary for their testimony to be corroborated. The instructions were properly given.' (Italics ours.)

In the Dahl case, supra, one of the questions involved was the identical question previously considered in the Smith case, supra. Dealing with that question, this court said :

'The argument is that these instructions constitute an unlawful comment upon the evidence by the trial court. The answer to this contention, we think, is found in our decision in State v. Smith, 127 Wash. 588, 221 P. 603, where instructions in substance identical with these were approved.'

While the Smith and Dahl cases, supra, were, in our opinion correctly decided under all the facts, circumstances and conditions there existing, we would nevertheless hesitate to say, as was suggested in the Smith case, supra, that the instructions therein may have been given by the trial court for the purpose of preventing counsel ...