State v. Gibson

• Decision Date: 13 July 1911
• Citation: 64 Wash. 131,116 P. 872
• Parties: STATE v. GIBSON.
• Court: Washington Supreme Court

116 P. 872

64 Wash. 131

STATE v. GIBSON.

Supreme Court of Washington

July 13, 1911

Department 2. Appeal from Superior Court, Grant County; R. S. Steiner Judge.

Robert J. Gibson was convicted of statutory rape, and he appeals. Reversed.

Lambert & Jeffers and C. C. Upton, for appellant.

Daniel T. Cross, for the State.

ELLIS J.

The appellant was convicted of the statutory crime of rape committed upon the person of Violet May Leighton, a female child under the age of 15 years, and appeals from the judgment and sentence of the court. Insufficiency of the evidence to sustain the verdict, and an alleged improper instruction given by the court are assigned as error.

It is urged that the testimony of the prosecutrix was not corroborated as required by the statute (Rem. & Bal. Code, § 2155) which is cited and quoted by both appellant and the state as the controlling statute, and which reads as follows 'No conviction shall be had for the offense of rape, or seduction, in this state upon the testimony of the female raped, or seduced, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense.' Neither in the briefs nor in argument was there any intimation that this statute had been repealed or modified, but both briefs and the entire argument were based upon and directed to the above-quoted section. The section discussed by counsel was repealed by section 52 of the Penal Code of 1909, being section 2304 of 1 Rem. & Bal. Code. The present corroborative requirement in cases of rape and other sexual crimes is found in section 191 of the Penal Code of 1909, being section 2443 (1 Rem. & Bal. Code), which is as follows: 'No conviction shall be had for violation of any of the foregoing provisions of this chapter upon the testimony of the female upon or against whom the crime was committed, unless supported by other evidence.' This section, however, in order to have any force must be construed as requiring corroborative evidence of the same character as that required by the repealed section. The other evidence in support of the testimony of the female must support her testimony upon the main facts namely, that the crime was committed and that the accused was the person who committed it. Under neither statute could it be held that corroboration or support of her testimony could be found in other evidence which supports her testimony only on immaterial or irrelevant matters. The obvious purpose of the new section is to extend the requirement of corroboration to other sexual crimes beside rape and seduction; not to abrogate or change the rule as to those two crimes. The law still requires other evidence than the testimony of the female corroborating her in the main facts, otherwise her testimony would not be 'supported by other evidence.' Such other evidence must still emanate from an independent source and have some tendency to connect the accused with the crime.

There is no question in this case that the crime was committed by some one about the latter part of June, 1909. The prosecutrix gave birth to a matured child on March 17, 1910, the end of the period of gestation from June preceding. The prosecutrix testified that the appellant on the morning of a Monday, June 19 or 20, 1909, went upstairs in her father's house, with a light, before daylight, and committed the crime while she was in bed with her two sisters aged six and four years, and while her two older sisters were downstairs getting breakfast. It is urged that there is an inherent improbability in this since these were near the longest days of the year, when daylight began not long after 3 o'clock in the morning, and that it is hardly credible that other members of the family would be up and about their daily cares at or before that hour. That the case therefore calls for a rigid application of the rule of corroboration required by the statute. Both the father and an older sister of the prosecutrix testified that the family never arose so early.

The prosecutrix had lived for some two years in the family of one Jeff Killian, consisting of himself, his wife, and two sons, Bill and John, aged, respectively, 22 and 20 years. She slept in a room between that occupied by Killian and his wife and the bedroom of the two young men. The three rooms were connected by doorways, with curtains instead of doors. She testified that she went to her father's home, seven miles from the Killian's, the Sunday night before the crime was committed, and that the appellant and her older sister Alice brought her back to the Killian home Tuesday night about 10 o'clock. Both her father and her sister Alice testified that prosecutrix was not at her father's home at all during the month of June, but visited there in the month of May, 1909.

The corroborating or supporting circumstances relied upon by the state are all found in the testimony of Jeff Killian and Mrs. Killian. They are as follows: (1) The testimony of Mr. and Mrs. Killian that prosecutrix went to the home of her father on Sunday between the middle and last of June, 1909, and Mrs. Killian's testimony that appellant and her sister Alice brought her home about 10 o'clock on the following Monday night. Neither of them nor any one testified to seeing prosecutrix at her father's house or to taking her there. This evidence, however, does to a degree corroborate her testimony that she was at her father's home about the time she claims, and that she was in company with the appellant within a few days of the time when in the nature of things the crime must have been committed. No one, however, testified that the two were ever at any time isolated from others.

2. The testimony of Killian and wife that the appellant, who was brother-in-law to the prosecutrix, was on terms of friendly familiarity with her, and on several occasions visited the Killian home for no apparent reason except to see her, on which visits he romped and played with her and with the Killian boys and with Killian himself. There is no evidence that he was ever alone with her on these occasions, nor evidence of what the witnesses considered improper conduct prior to the offense, except that on one occasion he, the prosecutrix, her older sister Florence, and a Mrs. Lindsey her relative, sat and reclined upon a bed at the same time: that at a certain pioneer's picnic he, the prosecutrix, and Florence went up on a hill above the crowd, but in plain view, and watched a ball game, which the Killians did not think looked well as the girls were wearing short dresses. These things established the fact of a familiar and intimate acquaintance, and with the Killian's...