State v. Glindemann

• Decision Date: 03 March 1904
• Citation: 75 P. 800,34 Wash. 221
• Court: Washington Supreme Court
• Parties: STATE v. GLINDEMANN.

75 P. 800

34 Wash. 221

STATE v. GLINDEMANN.

Supreme Court of Washington

March 3, 1904

Appeal from Superior Court, Spokane County; William E. Richardson Judge.

John Glindemann was convicted of incest, and appeals. Reversed.

P. C. Shine, Townsend & Moore, and W. F. Townsend for appellant.

Horace Kimball and Miles Poindexter, for the State.

HADLEY, J.

Appellant was charged with the crime of incest, committed with his own daughter. Having been tried and convicted, he has appealed to this court.

He first assigns as error that the court overruled his demurrer to the information. The essential part of the information is as follows: 'That the said defendant, John Glindemann, in the county of Spokane and state of Washington, on or about the 1st day of January, 1902, did willfully, unlawfully, and feloniously have sexual commerce with and carnally know one Marie Glindemann, the said Marie Glindemann then and there being a female, and a daughter of said John Glindemann thereby committing the crime of incest.' Incest is defined in sections 7228, 7229, 2 Ballinger's Ann. Codes & St. as follows: 'Incest is the sexual commerce of persons related within the degrees wherein marriage is prohibited.' Persons being within the degrees of consanguinity or affinity, within which marriages are prohibited by law, who intermarry with each other, or who commit fornication or adultery with each other, or who carnally know each other, shall be deemed guilty of the crime of incest. * * *' It is urged that actual knowledge on the part of the accused that the relationship is within the said degrees of consanguinity is necessary in order to constitute the crime. It is insisted that the criminal intent cannot exist without actual knowledge of the relationship. Appellant contends that the statute defining incest should include the element of knowledge on the part of an accused, and that its failure so to do is in violation of the fourteenth amendment to the Constitution of the United States, as an attempt to deprive one of liberty without due process of law. But if the statute itself shall not for that reason be held to be violative of the constitutional principle, it is urged that in any event the information must go farther than the statute, and include the element of knowledge in its charging part, before it can be held that it charges a crime. Appellant cites State v. McGilvery, 20 Wash. 240, 55 P. 115, as supporting the view that the information charging one with the crime of incent must charge knowledge of the relationship on the part of the defendant. What is said at page 250, 20 Wash., page 117, 55 Pac., is particularly referred to, as follows: 'The third and last objection to the sufficiency of the information is that it does not allege that Carrie Barnett had knowledge of the relationship existing between herself and the defendant. The information does allege that defendant had knowledge of the relationship, and this is sufficient, under our statute, without alleging that the female also had that knowledge.' It is true, the inference may be drawn from the above language that the court in that case might have held that the allegation of knowledge was necessary, if it had been omitted as to the defendant. However, the point raised here was really not decided in that case. On this subject the following statement of the rule appears in volume 16, Am. & Eng. Enc. of Law (2d Ed.) 138 'Where the statutes are silent as to any scienter, as where they do not use the words 'knowingly,' 'willfully,' or the like, in describing the offense, it will not be necessary to allege and prove affirmatively that the defendant knew the relationship existing between him and the particeps. While this is true, still it would seem, upon reason, that the defendant's ignorance of such fact would constitute a valid defense.' The crime here is charged substantially in the language of the statute, and is sufficient, within the rule above stated. See the following cases in support of the rule, as applied particularly to cases of incest: State v. Bullinger, 54 Mo. 142; Simon v. State, 31 Tex. Cr. R. 186, 20 S.W. 399, 716, 37 Am. St. Rep. 802; State v. Wyman, 59 Vt. 527, 8 A. 900, 59 Am. Rep. 753; State v. Dana, 59 Vt. 614, 10 A. 727. It was held by the United States District Court, District of Washington, In re Nelson, 69 F. 712, that a statute of Washington Territory similar to the present state statute was not invalid because of the omission of the word 'knowingly,' or any equivalent word or phrase to make knowledge of the relationship an element of the crime. Under the above authorities, we hold here that the court did not err in overruling the demurrer to the information.

It is next assigned that the court erred in excluding evidence offered by appellant that the wife of appellant had been and then was, the duly appointed, qualified, and acting guardian of appellant. Appellant not only denied the commission of the alleged crime, but also interposed the defense of insanity. A record was introduced to the effect that he was adjudged to be insane by a California court in the year 1898, and also another record showing, that he was in September, 1902 adjudged by the superior court of Spokane county to be then insane. Following the last adjudication, the said superior court appointed Anna Glindemann, the wife of appellant, as his guardian, on the ground the appellant was of unsound mind. It was the record of said appointment that appellant sought to introduce in evidence. It is argued that the fact that appellant was still under guardianship tended to support the presumption of mental disability. We believe, however,...