State v. Collier

• Decision Date: 22 September 1945
• Docket Number: 29420.
• Parties: STATE v. COLLIER.
• Court: Washington Supreme Court

162 P.2d 267

23 Wn.2d 678

STATE v. COLLIER.

No. 29420.

Supreme Court of Washington

September 22, 1945

Department 2.

Burton M. Collier was convicted of sodomy, and he appeals.

Appeal from Superior Court, King County; James T. Lawler, judge.

B. Gray Warner, of Seattle, for appellant.

Lloyd Shorett and Edgar R. Rombauer, both of Seattle, for respondent.

ROBINSON Justice.

This is an appeal from a judgment and sentence entered on a jury verdict rendered after a trial on two counts which, omitting the names of the prosecuting witnesses, read as follows:

'Count I: He, the said Burton M. Collier, in the County of King State of Washington, on divers dates and days from September 15th, 1943, to March 30th, 1944, wilfully unlawfully and feloniously did carnally know one _____, a living human being and a male person with the mouth and tongue;

'Count II: He, the said Burton M. Collier, in the County of King, State of Washington, on divers dates and days from September 15th, 1943, to March 30th, 1944, wilfully, unlawfully and feloniously did carnally know one _____, a living human being and a male person with the mouth and tongue.'

Twenty-one assignments of error are submitted and discussed in appellant's 250 page brief. It will be impossible to discuss analytically all of these in this one opinion.

At the beginning of the trial, defendant moved for a separate trial on each count, 'on the ground and for the reason,' says the brief, 'that the information did not properly advise the defendant of the charge with which he was confronted.' Upon a denial of that motion, defendant moved for a continuance. That motion was also denied, and these rulings are claimed as legal errors in the first two assignments.

The counts which we have reluctantly quoted above, to our minds, advised the defendant of the charges with which he was confronted with painful accuracy. They were filed long Before the trial. Defendant's attorney, knowing their content, did not move against them until the day of trial. Furthermore, it is well established that rulings of a trial court as to matters of joinder and continuance will not be held erroneous on appeal, except in cases where abuse of discretion is manifest. In this instance, no such abuse appears.

Assignments 3, 4, 5, 6, 7, 9, 11, 13, 19, 20, and 21 question the competency of the prosecuting witness named in each of the counts to testify at all, and, in addition, it is contended that the prosecuting witness, named in the first count, was not legally sworn. These assignments demand full and complete consideration; for, it is clear that, if that evidence was erroneously received, the judgment must be reversed and a new trial granted. But Before taking up the questions raised by these assignments, it will be necessary to state the background of the case.

The crimes charged are alleged to have been committed at various times between September 15, 1943, and March 30, 1944. During that period, the prosecuting witness, named in Count I and who will be hereinafter referred to as 'Butch,' lived with his parents near Bothell, but was accustomed to spend about every other weekend at his grandmother's home in Seattle. Butch was born on July 3, 1935, and, at the time of the trial, June 12, 1944, was within a month of being nine years of age. His grandmother had a large house and kept a number of roomers, among them, a woman who was employed on week-days. Her son, the prosecuting witness in Count II, attended a boarding school north of Seattle, but visited his mother on week-ends.

At the time of the trial, he was seven and one-half years old. He will be hereinafter referred to as 'Bobby.' Both boys were greatly interested in the construction of model aeroplanes. The defendant, Collier, a twenty-nine-year-old shipyard worker skilled in the repair of small electric motors, a trade requiring precision skill comparable, as he testified, to that of a manufacturing jeweler, also roomed in the Nelson house. His hobby, as he further testified, was the construction of model aeroplanes, and he kept tools and materials for that purpose in his room.

Butch testified that Collier performed the act of sodomy as to him on five occasions, the first in the early fall of 1943. He testified that he saw Collier downstairs and Collier asked him to come up to his room to see a model aeroplane. After Collier had shown him the plane, he put him on the bed, kneeled down, and (here the boy described the act charged with great minuteness). He further testified that, several weeks later, he again visited his grandmother, and, taking with him an aeroplane, went up to Collier's room to show it to him.

'Q. Then the second time that you went up there with this airplane model, what happened? A. About the same thing.

'Q. About the same thing. Did he have anything to do with you on that occasion,--with your physical organs? A. Yes.

'Q. That is what you mean when you say about the same thing. A. Yes.

'Q. The same type of act was performed. A. Just about. I think it was the same act.

'Q. It happened in just about the same way you told the Court and jury it did the first time? A. Yes.'

He further testified that, about four weeks later, he again went to Collier's room, and in about fifteen minutes Bobby came in. At the time, Collier was working on the model of a Gruman Avenger. Bobby began to work on a puzzle. According to Butch, Before the boys left the room, the act charged had been committed as to both of them. On a later occasion, he was taking a model plane to show Collier, and met him en route to the bathroom. Collier asked him to come along with him and show him the model.

'Q. What did you do when he asked you to come up and show it [the model] to him? A. I come up with him.

'Q. Come up where? To his room? A. To the bathroom.

'Q. What happened after you got in the bathroom? A. He took off his robe.

'Q. What did he do after he took off his robe? Swing around and look at the jury, then you won't be bothered so much. What happened after you got in the bathroom? A. I sat down on the chair. I thought he was going to look at the model. He opened,--he took down my trousers. [Further particulars, quite graphically and minutely described, will be omitted.]'

He testified to another instance occurring late in March.

Bobby testified that one day he went to Collier's room and found Butch there, and Collier did the act to both of them.

'Q. Did he do it to you first, or to Butch first? A. Butch first.

'Q. After he got through doing it, what did he say to you? A. He said, 'Come on; it won't hurt.'

'Q. What did you say? A. First I said, 'No.' Then he said, 'Come on, it won't hurt you.'

'Q. You let him do it? A. He coaxed me.

'Q. Did you do anything else in the room while you were there? A. Yes.

'Q. What did you do? A. He let me try his blow torch out.'

We quote further from Bobby's testimony:

'Q. Now, at any time after that were you ever alone with Mr. Collier? A. Yes, Christmas Eve in the car.

'Q. What happened that night, Bobby? A. He did it to me in the car.

'Q. How did you happen to be in the car with him? A. I asked my mother--he was decorating a tree with another man. He come to see Mrs. Nelson. He come there often. He was helping decorate the tree. So I asked her if I could go down to the store with Bob.

'Q. Had he asked you whether you could go? A. No, I asked him.

'Q. How did you know he was going to the store? A. Because his wife,--whatever she is,--or girl friend,--told him to go down to the store and buy some bread. I don't know whether it was milk.

'Q. Did he ask you whether you wanted to go? A. I asked him, but he said to ask my mother. I went and asked my mother, and she said yes.

'Q. What happened after you got into the car, Bobby? A. Well, he went down,--he went down the street a little ways, then did it to me.

'Q. He didn't do it while driving the car down the street, did he? A. He stopped the car and left the motor going. Then did it to me. Then did it to me. Nobody seen us. Nobody was coming along the street.

'Q. When you say he did it, what did he do, Bobby? [The altogether responsive and very direct answer to this question will not be quoted.]

'Q. Did you go home with him? A. Yes.

'Q. Anything happen on the way home? A. Yes, he did it to me on the way home. Only it was by the house.

'Q. It was when he stopped at the house that he did it? A. Yes.'

Bobby successfully weathered a cross-examination the transcript of which is six pages in length. The testimony designed to corroborate that of the two boys is rather slight, but, if their evidence was admissible, it is clearly more than sufficient to support the verdict.

It is said, in appellant's brief:

'The prosecuting witness [in Count I], as noted heretofore, was eight years old. He was, therefore, presumed to be disqualified as a witness in any trial and Before any court in this state under Rem.Rev.Stat. 1213, which provides as follows:

"Who incompetent. The following persons shall not be competent to testify:

* * *

* * *

"2. Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.'

'Despite the statutory provision above, the only test applied by the court was confined to a determination of whether or not the offered witness understood the difference between right and wrong.'

We do not agree that the only test applied by the court was as to whether the offered witness understood the difference between right and wrong. The court tested his general intelligence. We quote a portion of this inquiry:

'Q. (By the Court) If I ask you to raise your right hand and swear to testify and tell the truth and the whole truth,...