State v. Crowder

• Decision Date: 08 April 1922
• Docket Number: 16881.
• Court: Washington Supreme Court
• Parties: STATE v. CROWDER.

205 P. 850

119 Wash. 450

STATE v. CROWDER.

No. 16881.

Supreme Court of Washington

April 8, 1922

Department 1.

Appeal from Superior Court, Skagit County; Augustus Brawley, Judge.

John R Crowder was convicted of carnally knowing a female child under the age of 18, and he appeals. Reversed and remanded.

George A. Joiner, of Anacortes, and R. V. Welts, of Mt. Vernon, for appellant.

W. L Brickey and W. H. Hodge, both of Mt. Vernon, for the State.

TOLMAN J.

This is an appeal from a judgment entered upon a verdict of guilty of the crime of carnally knowing a female child under the age of 18 years.

While a number of assignments of error are made, those chiefly argued and relied upon may be grouped under two heads, and we will confine ourselves to the two questions thus presented.

It is conceded that in cases of this character the prosecuting witness may testify to acts of intercourse other than, and prior in time of occurrance to, the one upon which the defendant is being tried, as showing the relations of the parties, and tending to corroborate other evidence going directly to the offense charged. But it is contended that the details of such prior acts are inadmissible, and more especially that subsequent acts and the details thereof are wholly inadmissible for any purpose. As to the inadmissibility of the details, appellant cites and relies upon State v. Sigler (Wash.) 200 P. 323, and State v. McDonald (Wash.) 200 P. 326; but these cases each deal with a wholly different and independent crime, the details of which would have no bearing upon the issue being tried, and are not controlling upon the question here presented. In this case the prosecuting witness was examined in chief as to her relations with the accused from the beginning to the end of them, the time covered being less than two months, and there being no break in the relations during that period, the prosecutor announcing that he would in due time, elect as to which particular act he would rely upon for conviction. Any one of the acts detailed by the witness would have been sufficient under the information.

'The general rule that evidence of other crimes is inadmissible does not apply to proof of other acts of sexual intercourse between the parties in statutory rape cases, that is, in prosecutions for rape on a female under the age of consent, or on a woman imbecile, even though such other acts constitute separate and distinct crimes. Provided they are not too remote in time or otherwise, such other acts are relevant and admissible to show the lustful disposition of defendant as well as to show the existence and continuance of the illicit relation, to characterize and explain the act charged, and to corroborate the testimony of the prosecutrix as to that act. Evidence of acts prior to the one charged is quite generally held admissible, and, except in a few jurisdictions, evidence of subsequent acts is also admissible.' 16 C.J. 608.

See, also, State v. Fetterly, 33 Wash. 599, 74 P. 810.

We hold therefore that, under the conditions here shown, the evidence of the details of what later proved to be prior and subsequent acts was property admitted.

The second question relates to the cross-examination of the accused, who presented himself as a witness in his own behalf. On direct examination he testified that he became acquainted with the prosecuting witness and called at her home quite frequently; that he ceased to call upon her about April, 1920 (a time subsequent to the particular act which the state elected to rely upon); and that he had not called upon her or been out with her at any time during certain subsequent months. This, with the details of an offer and certain efforts to marry the prosecuting witness, comprise the gist of his testimony in chief so far as it is now material. On cross-examination, over strenuous and detailed objections, he was compelled to testify that he did have intercourse with the prosucting witness on three or four occasions, one being the act upon which the state elected to rely.

Appellant, in support of his position that such cross-examination constitutes reversible error, relies on section 9 of article 1 of our state Constitution, which reads:

'No person shall be compelled in any cirminal case to give evidence against himself, or be twice put in jeopardy for the same offense.'

And upon Rem. Code, § 2148, which, among other things, provides:

'* * * Any person accused of any crime in this state, by indictment, information, or otherwise, may, in the examination or trial of the cause, offer himself, or herself, as a witness in his or her own behalf, and shall be allowed to testify as other witnesses in such case, and when accused shall so testify, he or she shall be subject to all the rules of law relating to cross-examination of other witnesses.'

And also upon Rem. Code, § 2152, which provides:

'The rules of evidence in civil actions so far as practicable, shall be applied to criminal prosecutions.'

As to the constitutional question there is no doubt that, when the accused takes the witness stand in his own behalf and by his testimony in chief opens up a pertinent subject, he thereby submits himself to proper cross-examination on such subject and may not prevent or defeat cross-examination thereon by claiming the protection of the constitutional provision. State v. Duncan, 7...