State v. Davis
Decision Date | 12 April 1944 |
Docket Number | 29220. |
Citation | 20 Wn.2d 443,147 P.2d 940 |
Parties | STATE v. DAVIS. |
Court | Washington Supreme Court |
Rehearing Denied May 24, 1944.
Department 1.
Evan Davis was convicted of carnally knowing and abusing a female child under the age of 15 years, and of incest, and he appeals.
Judgment affirmed.
Appeal from Superior Court, Clallam County; Ralph Smythe, Judge.
Warren Hardy, of Seattle, and Grant L. Parrish, of Port Angeles, for appellant.
Max Church and D. E. Harper, both of Port Angeles, for respondent.
Defendant Evan Davis, was, by the first count of an information filed by the prosecuting attorney of Clallam county, on July 20 1943, charged with the crime of carnally knowing and abusing a female child under the age of fifteen years, not his wife. The information further charged the crime to have been committed in Clallam county, on or about July 17, 1943. By the second count of the information, defendant was charged with the crime of incest. Under this count it is alleged that on or about July 17, 1943, in Clallam county, defendant had sexual intercourse with his daughter, who, for obvious reasons, will be hereinafter referred to as the prosecuting witness, and not by name.
Defendant entered a plea of not guilty to each of the above counts. The cause came on for hearing Before the court and jury, and thereafter, on September 18, 1943, the jury returned a verdict of guilty as charged on each count of the information. A motion for new trial was timely filed, and by the court denied. On September 25, 1943, defendant filed a motion for the appointment of a commission to examine the mental condition of the prosecuting witness. This motion was denied. On September 25th, defendant was brought Before the court, and judgment and sentence was entered on the verdict. Defendant has appealed from such judgment.
Both counts in the information are based upon an alleged act of intercourse claimed to have taken place between appellant and his daughter on or about July 17, 1943.
Appellant while on the witness stand, testified that the prosecuting witness was his daughter, and that she was fourteen years of age at the time of the alleged act. No question is raised but that the alleged act, if committed, was committed in Clallam county, Washington.
The above facts having been admitted, it remained for the state to establish that an act of sexual intercourse took place between appellant and the prosecuting witness, on or about July 17, 1943, and within three years next preceding the filing of the information.
Appellant, who was about thirty-five years of age, and his family, consisting of his wife, the complaining witness and two sons, both younger than his daughter, lived on a small farm in what is known as Eden valley, a few miles from Port Angeles. The prosecuting witness had completed the eighth grade, and was ready to enter high school. After school closed, she went to visit her grandparents, Mrs. Davis' mother and father, at Wapato. She returned home by bus on the evening of Thursday, July 15th, and communicated to her mother that the grandfather was in very poor health The next morning, Friday, July 16th, Mrs. Davis and the two boys boarded the bus for Wapato, leaving the prosecuting witness and her father alone on the farm. It appears without dispute that the girl had never theretofore been left alone with her father.
There is evidence, as shown by the testimony of the prosecuting witness, if believed by the jury, to establish that on the night of Friday, July 16th, appellant carried the girl from her bed to his bed, and there had sexual intercourse with her.
It clearly appears from the testimony of this young girl that she was entirely unfamiliar with sex matters, and the names and terms commonly applied to such matters. It is very evident, from her examination and testimony, that she was reluctant to refer to these matters, although her testimony as to the act was not shaken by cross-examination.
The first assignment of error is that the court erred in permitting leading questions to be asked the prosecuting witness to bring out evidence tending to show sexual penetration.
We appreciate the general rule relative to the asking of leading questions, but there are exceptions to this rule. Much discretion is also vested in the trial court in permitting leading questions to be asked. Wharton's Criminal Evidence, 11th Ed., vol. 3, p. 2136, § 1270, has the following to say on this matter:
'Leading questions are also permissible in the examination of children unaccustomed to court proceedings, and in the examination of a young, uneducated, and unsophisticated girl testifying to the details of a rape.'
We will not set out the questions to which objections were made, nor the answers thereto, but we are of the opinion there can be no doubt that the answers of the prosecuting witness, if believed by the jury, sufficiently showed sexual penetration. It may be admitted that the questions asked, to which objections were made, were leading.
In State v. Tenney, 137 Wash. 47, 241 P. 669, 670, the trial court permitted the prosecuting attorney to ask the prosecuting witness almost the identical question propounded to the prosecuting witness in this case. Objection was made to the question and error assigned thereon. In commenting on this matter, this court stated:
We are satisfied that the trial court in the instant case, in permitting the state to ask the questions to which objection was made, did not abuse the discretion vested in it.
We shall next discuss assignments of error Nos. 2 and 5, as they are discussed together in appellant's brief. Assignment of error No. 2 is that the court erred in overruling appellant's challenge to the sufficiency of the evidence at the close of the state's case; and assignment No. 5 is that the court erred in refusing to grant appellant's motion for a new trial.
It is appellant's general contention that there was insufficient evidence to sustain a conviction on either count of the information. While appellant admits that the law requiring corroboration of the testimony of a prosecuting witness has been abolished in this state, it seems to be his contention that the testimony of the prosecuting witness alone is not sufficient to sustain a verdict of guilty, where such testimony is inherently improbable, or is badly discredited.
We are unable to agree that the rule in this state is as contended for by appellant, regardless of what the rule may be in other jurisdictions to which counsel for appellant has called our attention. This matter of corroboration is specifically referred to and discussed in State v. Morden, 87 Wash. 465, 151 P. 832, 834, a case decided after the repeal of the law requiring corroboration. The same argument was advanced in the cited case as is advanced by appellant. In the cited case we quoted with approval the following statement found in State v. Conlin, 45 Wash. 478, 88 P. 932:
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