State v. Coffey
| Decision Date | 29 April 1941 |
| Docket Number | 28294. |
| Citation | 112 P.2d 989,8 Wn.2d 504 |
| Parties | STATE v. COFFEY. |
| Court | Washington Supreme Court |
Department 2.
Ira Coffey was convicted of incest, and he appeals.
Judgment reversed and cause remanded, with direction to grant a new trial.
Appeal from Superior Court, Clark County; Charles W. Hall, judge.
McMullen & Snider, of Vancouver, for appellant.
Eugene Cushing, Pros. Atty., and R. DeWitt Jones, both of Vancouver for respondent.
Defendant was convicted of the crime of incest, sexual intercourse with his seventeen-year old daughter, and has appealed.
Counsel for appellant first contend that the facts are not sufficient to support a verdict of guilty of the crime charged.
The prosecutrix testified that appellant, her father, had had sexual relations with her almost continuously since the death of her mother in 1935, and that he had such relations with her on the morning of August 24, 1940, the date he is charged by the information with the commission of the crime in question. If there were no other evidence or evidence from which it might reasonably be inferred that appellant was guilty of the crime charged, the testimony of the prosecutrix is sufficient to sustain the verdict. The guilt or innocence of accused in a prosecution for incest is not affected by the consent of prosecutrix, or that the act was committed without her consent. In the absence of a statute, none has been called to our attention, requiring corroboration, the conviction may be had on uncorroborated testimony of prosecutrix. State v. Aker, 54 Wash 342, 103 P. 420, 18 Ann.Cas. 972. See, also, State v Hornaday, 67 Wash. 660, 122 P. 322.
Appellant next complains of one of the instructions given to the jury. As the instruction of which complaint is made is not set forth in the brief, the assignment is not entitled to consideration. Lund v. Seattle, 163 Wash. 254, 1 P.2d 301; Scott v. Pacific Power & Light Co., 178 Wash. 647, 35 P.2d 749.
The trial court admitted in evidence, over objection, in corroboration of the testimony of the prosecutrix, a page of a diary, without detaching same from the diary, kept by the prosecutrix. This exhibit purports to carry a notation of commission of incestuous acts by appellant during January, February, and May, 1940. The prosecutrix testified that immediately, or not later than the subsequent day, following such an occurrence, she made a notation upon the page in question; that the letters 'D', 'M' or 'N' following the date indicated an occurrence in the daytime, morning or night and that the key and notations were all made previous to the beginning of this memorandum. The trial court permitted the entire diary kept by the prosecutrix to go to and be considered by the jury when no part of that diary other than the one page just described had been admitted in evidence.
Counsel for appellant assign as error the admission in evidence of the above-described exhibit, and also assign as error the permitting of the diary which had not been admitted in evidence to be considered by the jury. Both assignments may be considered together.
Diaries and small memorandum books do not generally belong to the class of books which are admissible in evidence. It should be borne in mind that it is essential to the admission of books of account in evidence that the charges should be in such a state that they may be presumed to be the minutes of the daily business of the party; that is, the book must on its face be a regular and usual book of accounts. A diary such as that in the case at bar is not admissible in evidence under the rule admitting books which are used in the regular course of business and kept by the party as books of account.
In Dennis v. Trick, 165 Wash. 403, 5 P.2d 493, 494, the appellant assigned as error refusal of the court to admit in evidence a diary which appellant claimed was kept each day for five and one-half months. Appellant while testifying was permitted to use the diary in order to refresh her recollection. We said:
'At best, the diary was a self-serving memorandum and was properly rejected. A similar question was presented in the case of Kirkpatrick v. Collins, 95 Wash. 399, 163 P. 919, 920, and we there said: 'We are of the opinion that such is not the law, in the light of what we think is the great weight of authority and the better reasoning in cases where the witness testifies from his present memory, even though it be refreshed by a memorandum made by himself when the facts sought to...
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People v. Hopkins
...114, 115; State v. Winslow, 30 Utah 403, 85 P. 433, 435; State v. Hornaday, 67 Wash. 660, 122 P. 322, 323, followed in State v. Coffey, 8 Wash.2d 504, 112 P.2d 989, 990; Porath v. State, 90 Wis. 527, 63 N.W. 1061, The Pennsylvania courts apply the doctrine of constructive force when mental ......
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State v. Gross, 30503.
... ... factual situations there presented ... In ... Kirkpatrick v. Collins, 95 Wash. 399, 163 P. 919, ... the court quoted with approval the statement of the rule as ... expressed in 40 Cyc. 2467, set forth above. In State v ... Coffey, 8 Wash.2d 504, 112 P.2d 989, 991, we stated: ... 'A diary or other writing is not made evidence by its use ... to refresh the memory of a witness or by the fact that it ... would be permissible to use it for such purpose. If the ... witness after examining the writing ... ...
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State v. Galbreath
...660, 122 P. 322 (1912) (incest charge); State v. Morden, 87 Wash. 465, 151 P. 832 (1915) (statutory rape charge); State v. Coffey, 8 Wash.2d 504, 112 P.2d 989 (1941) (incest charge); State v. Davis, 20 Wash.2d 443, 147 P.2d 940 (1944) (carnal knowledge charge); State v. Clayton, 32 Wash.2d ......
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State v. Huelett
...recollection." 198 Wash. at 164. The witness must actually recall the occurrence, event, or matter in his own mind. In State v. Coffey, 8 Wash.2d 504, 112 P.2d 989 (1941), we said at The general rule is that entries in diaries are inadmissible as evidence although they may be used to refres......