State v. Fetterly

• Decision Date: 29 December 1903
• Citation: 74 P. 810,33 Wash. 599
• Parties: STATE v. FETTERLY.
• Court: Washington Supreme Court

74 P. 810

33 Wash. 599

STATE v. FETTERLY.

Supreme Court of Washington

December 29, 1903

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

William D. Fetterly was convicted of statutory rape, and appeals. Affirmed.

Solon T. Williams and R. H. Lindsay, for appellant.

W. T Scott and Elmer E. Todd, for the State.

FULLERTON C.J.

The appellant, William D. Fetterly, was informed against for the crime of rape alleged to have been committed upon the person of his stepdaughter, a female child of the age of 16 years. He pleaded not guilty to the information, and a trial was had thereon, resulting in a verdict of guilty, on which he was adjudged guilty, and sentenced to a term in the penitentiary.

The appellant first assigns that the court erred in allowing the prosecuting witness to testify to acts of carnal intercourse occurring between herself and the appellant at times other than the one charged in the information. In State v Wood, 74 P. 380, we held that in a prosecution for incest it was permissible for the state to prove acts of incestuous intercourse between the defendant and the prosecuting witness occurring prior to the specific act charged in the information; this, not to prove a substantive offense upon which a conviction might be had, but on the same principle that evidence of the antecedent conduct and demeanor of the parties towards each other is admissible, as tending to show the probability of the commission of the specific act charged, and as corroborative of the testimony of the prosecuting witness. In principle there is no distinction in this respect between a prosecution where the charge is incest and a prosecution where the charge is rape upon a female child under the age of consent. The same reason that renders the testimony admissible in the one case renders it admissible in the other, and such is the effect of the authorities. State v. Wood, supra, and cases cited. Also, State v. Robinson, 32 Or. 43, 48 P 357; People v. Abbott, 97 Mich. 484, 56 N.W. 862, 37 Am. St. Rep. 360; People v. Castro, 133 Cal. 11, 65 P. 13; State v. Peres (Mont.) 71 P. 162.

The appellant argues, however, that the information in this case charges a rape by force, and against the will of the prosecutrix, and that the rule above announced has no application for that reason. The information, it is true, does so charge; but it is also true that it charges that the prosecutrix was of an age when she was incapable of giving consent, and in such a case the allegations of force and nonconsent are mere surplusage, except in so far, perhaps, as proof that the carnal act was committed by the means of the one or without the other might tend to aggravate the offense. But the mere carnal knowledge of a female child under the age of consent is rape whether the act be committed with or without force, or with or without consent, and the nature of the crime, or the proof required or permitted to sustain it, is not changed by the fact that the information charges the unlawful act to have been committed by force. State v. Hunter, 18 Wash. 670, 52 P. 247; State v. Horne, 20 Or. 485, 26 P. 665.

The objection, in this connection, that the information does not allege that the prosecutrix was under the age of consent, is without merit. The age of consent in this state is 18 years. The information alleges that the prosecutrix was at the time of the offense 'of the age of 16 years.' This is good as against an objection made for the first time after verdict. People v. Gardner, 98 Cal. 127, 32 P. 880; State v. Newton, 44 Iowa, 47.

It is next claimed that the state failed to prove the venue of the crime; but it was not necessary, in order to sufficiently prove the venue, that some witness testify directly that the crime was committed in the designated place. It is enough if the evidence incidentally given on the trial of the cause shows that the venue is properly laid. Here the prosecuting witness testified that at the time of the commission of the acts constituting the offense she was living with the defendant and her mother 'at Twentieth and Norman streets, * * * in the city of Seattle,' and that the act occurred at their house. This was sufficient proof of venue. The court knows judicially that the city of Seattle is in King county, state of Washington, and proof that the crime complained of was committed in that city is proof that it was committed within the jurisdiction of the...