State v. Clevenger

Decision Date11 August 1966
Docket NumberNo. 38326,38326
Citation69 Wn.2d 136,417 P.2d 626
PartiesThe STATE of Washington, Respondent, v. Wayne L. CLEVENGER, Appellant.
CourtWashington Supreme Court

Agranoff & Perlman, Efrem Z. Agranoff, Everett, for appellant.

Robert E. Schillberg, Pros. Atty., Mark T. Patterson, Deputy Pros. Atty., Everett, for respondent.

TURNER, Judge. *

Appellant was charged by information in two counts with the crimes of incest and indecent liberties, both committed on his 3-year-old daughter. A jury found him guilty as charged. From a judgment and concurrent sentences of life and 20 years, he appeals, assigning eight errors, of which five require discussion.

The facts relating to the first and fifth assignments are these: On February 8, 1965, shortly after 5 p.m., appellant's wife went to a neighbor's house, leaving appellant at home alone with their three daughters. At that time, the children were unharmed. At about 8 p.m., appellant told his wife that 'Dee-Dee,' the 3-year-old, had been hurt, and asked her to come home immediately. On arrival there, she found the child undressed and lying in a pool of blood in appellant's bed. The blood was coming from the child's vagina. There was no object present which could have caused such an injury, and there was nothing to suggest that any man other than appellant had been in the house. Appellant took the child to the hospital, where the family physician found a jagged tear of the vagina and adjacent tissues. In order to effect such a wound, the instrumentality must necessarily have been at least 5 inches long and 1 1/2 to 2 inches in diameter.

Appellant, his wife and their other two children stayed that night at the home of appellant's father and stepmother, Mr. and Mrs. Benjamin. The next day (February 9th) appellant was arrested and questioned, and the officers learned that the clothing appellant had worn on the night of the crime had been left at his parents' house. On the 10th, the deputy sheriffs returned to the Benjamin home without a search warrant. They were admitted by Mrs. Benjamin and, with her assistance, located the clothing in question, a pair of jeans and a T-shirt, which were obviously stained. The officers took these items without objection. Laboratory tests disclosed that on the inside of the trousers in the area of the left front pocket there were stains of seminal fluid and blood of the same grouping as that of the injured child.

Appellant told the doctor at the hospital that the child's bleeding was the result of his actions, and he later admitted to the officers that he 'must have done it.'

Appellant moved to suppress the clothing items on the ground that the officers had obtained them by a search of a private dwelling house without the authority of a search warrant, not incident to an arrest, and without the consent of the occupier of the premises. The denial of this motion, and the subsequent admission of the clothing into evidence forms the basis of appellant's first assignment of error.

Appellant had no proprietary or possessory interest in the Benjamin premises. The consent of the owner of the premises made the search lawful, and dispensed with the necessity for a search warrant. Maxwell v. Stephens, 348 F.2d 325 (8th Cir.1965); State v. Kinderman, 271 Minn. 405, 136 N.W.2d 577 (1965); Cutting v. United States, 169 F.2d 951, 12 Alaska 143 (9th Cir.1948); Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (D.C.Cir.1958); cert. denied 357 U.S. 930, 78 S.Ct. 1375, 2 L.Ed.2d 1372.

Appellant's claim that no proper foundation was laid for the admission of the clothing in evidence has no merit. There was substantial evidence accounting for the custody and condition of this clothing from the time appellant left it at the Benjamin home until it was offered in evidence.

Under the fifth assignment of error, appellant contends that the evidence was insufficient to establish the Corpus delicti, and that his motion to dismiss should have been granted. The Corpus delicti of incest consists of (1) an act of sexual intercourse (2) between male and female persons within the prohibited degrees of relationship to each other.

The argument is that there was no direct testimony concerning the nature of the instrumentality that caused the injuries to appellant's daughter. Inherent in the challenge is the point that even if the evidence shows commission of the first element by someone, it must go further and establish the prohibited degree of relationship in order to satisfy the second.

The rule is that a confession is not sufficient to establish the Corpus delicti, but if there is independent proof thereof, the Corpus delicti may be established by a combination of the independent proof and the confession. The circumstantial evidence summarized above is clearly sufficient independent proof of both elements of the crime to warrant consideration of appellant's admission that he was responsible. State v. Meyer, 37 Wash.2d 759, 226 P.2d 204, and cases cited; Annotation, 40 A.L.R. 460, Necessity and character of corroboration of confession of sexual offense.

Under the second assignment, appellant alleges error in allowing appellant's wife to testify in violation of the privilege granted by RCW 5.60.060(1). As of the date of the crime, this statute read The following persons shall not be examined as witnesses:

(1) A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage. But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other.

The trial court permitted the wife's testimony pursuant to Laws of 1965, chapter 13, § 7, which amended RCW 5.60.060(1) so as to remove the privilege in a criminal prosecution of this nature. Appellant contends (1) that the 1965 statute, if construed to apply to the crime charged here, is Ex post facto and unconstitutional as to him; and (2) that it should be construed to apply only to prosecutions for crimes committed after its effective date.

Laws of 1965, chapter 13, §§ 1, 7, and 8 read as follows:

Section 1. In order to protect children whose health and welfare may be adversely affected through the infliction, by other than accidental means, of physical injury and/or physical neglect, or sexual abuse, requiring the attention of a practitioner of the healing arts, the Washington state legislature hereby provides for the reporting of such cases by such practitioners to the appropriate public authorities. It is the intent of the legislature that, as a result of such reports, protective services shall be made available in an effort to prevent further abuses, and to safeguard and enhance the general welfare of such children.

Section 7. Section 392, Code of 1881, and RCW 5.60.060 are each amended to read as follows:

(1) A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the order, examined as to any communication made by one to the other during marriage. But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, Nor to a criminal action or proceeding for a crime committed by said husband or wife against any child of whom said husband or wife is the parent or guardian. (Italics ours.)

Section 8. This act is necessary for the immediate preservation of the public peace, health and safety, the support of the state government and its existing public institutions, and shall take effect immediately.

Laws of 1965, chapter 13, took effect March 19, 1965. Before its effective date, the crime had been committed and the original information herein filed. After the effective date, an amended information was filed on which the trial was held from May 10 to 13, 1965.

Appellant accepts the definition of Ex post facto laws as stated in Calder v. Bull, 3 U.S. (Dall.) 305, 309, 1 L.Ed. 648:

1st. Every law that makes an action done...

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24 cases
  • State v. Palmer
    • United States
    • Nebraska Supreme Court
    • 29 December 1986
    ...law, and in each instance determined that it does not. See, Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977); State v. Clevenger, 69 Wash.2d 136, 417 P.2d 626 (1966); Ritchey v. State, 407 S.W.2d 506 (Tex.Crim.1966); Wester v. The State, 142 Ala. 56, 38 So. 1010 As part of his "ex post......
  • State v. Ray, 63617-6
    • United States
    • Washington Supreme Court
    • 27 November 1996
    ...cases involving indecent liberty crimes, the criminal act has been established through numerous means. See, e.g., State v. Clevenger, 69 Wash.2d 136, 417 P.2d 626 (1966) (physical injuries to three year old established the corpus delicti); State v. Acheson, 48 Wash.App. 630, 740 P.2d 346 (1......
  • State v. Angulo
    • United States
    • Washington Court of Appeals
    • 10 February 2009
    ...knowledge of an 8-year-old girl requires corroborating evidence of "sexual penetration, however slight"); see State v. Clevenger, 69 Wash.2d 136, 139, 417 P.2d 626 (1966)("The corpus delicti of incest consists of (1) an act of sexual intercourse (2) between male and female persons within th......
  • State v. Eldredge
    • United States
    • Utah Supreme Court
    • 1 February 1989
    ...U.S. at 589, 4 S.Ct. at 210; accord Underwood v. State, 111 Tex.Crim. 124, 125, 12 S.W.2d 206, 206 (1927); State v. Clevenger, 69 Wash.2d 136, 140-42, 417 P.2d 626, 629-30 (1966); State v. Slider, 38 Wash.App. 689, 693-95, 688 P.2d 538, 541-42 (1984) (statute similar to section 76-5-411). S......
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