State v. Fairbanks
| Decision Date | 15 August 1946 |
| Docket Number | 29821. |
| Citation | 25 Wn.2d 686,171 P.2d 845 |
| Parties | STATE v. FAIRBANKS. |
| Court | Washington Supreme Court |
Department 2
Rehearing Denied Sept. 25, 1946.
Harold Stanley Fairbanks was convicted for taking indecent liberties with an eight and a nine year old girl, and he appeals.
Appeal from Superior Court, King County; Matthew W. Hill, judge.
James R. Chambers, of Seattle, for appellant.
Lloyd Shorett, J. Edmund Quigley, and James D. McCutcheon, Jr., all of Seattle, for respondent.
The defendant was charged with taking 'indecent liberties with and on the person of * * * a female under the age of fifteen years, to wit: of the age of eight years; and on the person of * * * a female child under the age of fifteen years, to wit: of the age of nine years.' Upon a verdict of guilty as charged, judgment was entered committing defendant to 'the penitentiary * * * for a maximum term of not more than twenty years, and a minimum term to be fixed by the Board of Prison, Terms and Paroles.' Defendant appeals.
Appellant makes fourteen assignments of error, which raise the following questions: (1) Whether the complaining witnesses were competent to testify; (2) whether the evidence was sufficient to justify the verdict; (3) whether Rem.Rev.Stat. (Sup.) § 2442, subd. (2), upon which the information was laid, is constitutional; (4) whether sentence and judgment was properly entered pursuant to Rem.Rev.Stat. (Sup.) § 10249-2; (5) whether evidence was improperly admitted and other evidence improperly excluded; and (6) whether the court erred in denying appellant's motion for new trial.
First. While the older girl was ten years of age at the time of the trial, appellant challenges her competency to testify, as well as the competency of the younger child, who was not yet nine.
Remington's Revised Statutes, § 1213, subd. 2, provides that the following persons are not competent to testify: '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.' However, the mental capacity of young children offered as witnesses and their capability 'of receiving just impressions of the facts respecting which they are examined, or of relating them truly,' is a matter which, of necessity, must be determined by the trial court. And we are committed to the rule that, unless it may be said that the trial judge has abused his discretion in receiving the testimony of a child of tender years, his ruling will not be disturbed. State v. Bailey, 31 Wash. 89, 71 P. 715; State v. Collier, 23 Wash.2d 678, 162 P.2d 267, 271. As was said in the latter case however, 'it is scarcely necessary to invoke this rule.' For, considering the voir dire examination of each girl and her testimony as a whole, we are satisfied that both of them were capable 'of receiving just impressions of the facts respecting which they [were] examined [and] of relating them truly.'
Second. From uncontradicted testimony, the jury was justified in finding the salient facts in the case as follows: That the girls were sisters who lived in the family home located in a suburb of Seattle and which was situated some twelve blocks from the business center of the community; that, on Sunday afternoon, July 8, 1945, they went to a picture show; that, after leaving the place, they were accosted by appellant, who had a real estate office adjacent to the theater; that he took them to his office, where they remained for a considerable length of time; that, while there, he repeatedly, under the guise of playing 'piggy back' and 'touch' or 'tickle,' put his hand under their skirts and inside their underclothing and upon their private parts. That these facts were not only sufficient to take the case to the jury but also to justify the verdict, would hardly seem debatable.
Third. Remington's Revised Statutes (Sup.) § 2442, subd. (2), in so far as it is material to the question raised, provides as follows:
'Every person who shall take any indecent liberties with or on the person of any female under the age of fifteen years, * * * whether with or without * * * her consent, shall be guilty of a felony, and shall be punished by imprisonment in the state penitentiary for not more than twenty years, or by imprisonment in the county jail for not more than one year.'
This statute was enacted in 1937. Laws of 1937, chapter 74, p. 321, § 2. Prior to that, the offense was defined as a gross misdemeanor. Rem.Rev.Stat, § 2442.
Appellant contends that the present statute violates Art. 1, § 14, of the state constitution, which provides: 'Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.' It may be conceded that duration of imprisonment fixed as a penalty may be so incommensurate with the gravity of the offense committed as to be violative of this provision of the state constitution and of the kindred provision contained in the eighth amendment to the Federal constitution. And this is the essence of appellant's argument in his challenge to the constitutionality of the present statute. But we think the argument is made on the erroneous assumption that the duration of the term of imprisonment imposed upon him is the maximum of twenty years. The error in this assumption will, we think, be apparent in the discussion of the following contention made by appellant:
Fourth. The assumption is predicated on the contention that the board of prison, terms and paroles has, under Rem.Rev.Stat. (Sup.) § 10249-2, no authority to fix a minimum sentence in this instance, because Rem.Rev.Stat. § 2442, subd. (2), is a subsequent enactment, and its provisions therefore supersede the provisions of § 10249-2. Appellant's argument, as we understand it, is that the sentence of twenty years in the penitentiary is absolute and is utterly incommensurate with the gravity of the offense charged.
We cannot accept the premise upon which the argument is advanced.
It is a cardinal rule that two statutes dealing with the same subject matter will, if possible, be so construed as to preserve the integrity of both. White v. City of North Yakima, 87 Wash. 191, 151 P. 645; State v. Herr, ...
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State v. Israel
...is insufficient to warrant a new trial. State v. Edwards, 23 Wash.App. 893, 898, 600 P.2d 566 (1979) (citing State v. Fairbanks, 25 Wash.2d 686, 171 P.2d 845 (1946)). Further, although we need not decide the issue, we note that it is highly questionable whether Bryant's conclusory statement......
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State v. Smith
...Massachusetts court held that a challenge to the statute upon Eighth Amendment grounds was totally without merit. In State v. Fairbanks, 25 Wash.2d 686, 171 P.2d 845 (1946), where the appellant had been convicted of taking indecent liberties with a female child and sentenced to a term of no......
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...is not possible does the court separately construe statutes dealing with the same subject matter. Id.; see also State v. Fairbanks, 25 Wash.2d 686, 690, 171 P.2d 845 (1946). We have long held: "Whenever a legislature had used a word in a statute in one sense and with one meaning, and subseq......
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Carter v. State
...liberties with females under the age of 15, by showing a lack of previous incidents, was also held improper in State v. Fairbanks, 25 Wash.2d 686, 171 P.2d 845 (1946). We find ample authority for the rejection of the testimony in the cases cited and find textual support in 22A C.J.S. Crimin......
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A New Approach to Statutory Interpretation in Washington
...materia will be read together for the purpose of ascertaining the legislative intent."). 102. State v. Fairbanks, 25 Wash. 2d 686, 690, 171 P.2d 845, 848 (1946) ("It is a cardinal rule that two statutes dealing with the same subject will, if possible, be so construed as to preserve the inte......
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Confronting Child Victims of Sex Abuse: the Unconstitutionality of the Sexual Abuse Hearsay Exception
..."just impressions of the facts respecting which they are examined, or of relating them truly." State v. Fairbanks, 25 Wash. 2d 686, 688, 171 P.2d 845, 846 (1946)(citing Rem. Rev. Stat. § 1213 (1922)). See also State v. Tate, 74 Wash. 2d 261, 444 P.2d 150 (1968)(7½ year-old could testify bec......