State v. Griffin

• Citation: 86 P. 951,43 Wash. 591
• Parties: STATE v. GRIFFIN.
• Decision Date: 08 September 1906
• Court: United States State Supreme Court of Washington

86 P. 951

43 Wash. 591

STATE v. GRIFFIN.

Supreme Court of Washington

September 8, 1906

Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

D. A Griffin was convicted of rape, and he appeals. Reversed, and new trial ordered.

Fairchilds & Bruce, for appellant.

Virgil Peringer and E. E. White, for the State.

RUDKIN J.

The information in this case charges that the defendant, on or about the 9th day of December, 1904, in the county of Whatcom, state of Washington, did wrongfully, unlawfully, and feloniously, by force and against her will, rape and carnally know Winnie Johnson, a female child under the age of 18 years, to wit, of the age of 15 years. From a judgment of conviction the present appeal is prosecuted.

The material facts are as follows: The prosecuting witness was 15 years of age on the 29th day of March, 1904, and the alleged offense was committed on the 9th day of the ensuing December. She lived in or about Deming, a small town in Whatcom county, from childhood, except for a period of about 3 years immediate before taking up her residence with the appellant and his wife. She had attended the public schools and Sunday school in the town, and had a passing acquaintance with nearly all the people residing there. She commenced to reside with the appellant and his wife at their hotel in Deming about 2 1/2 years prior to the commission of the alleged offense, and continued to reside there on terms of apparent intimacy with the appellant, until the 1st day of July, 1905. She testified that the appellant came to her room in the nighttime at various times during the spring and summer of 1904, in the absence of his wife in Portland or Whatcom, and took liberties with her person, but nothing beyond this occurred until the night of October 10th. At that time the appellant attempted to ravish her by force and against her will, and similar attempts were made on the nights of the 17th day of October and the 17th day of November, following but on each occasion some person appeared in the hallway of the hotel near her room, and the appellant left without accomplishing his purpose. On the night of December 9, 1904 the appellant again came to her room, and ravished her by force and against her will. She resisted to the utmost of her power, and screamed for assistance at the top of her voice. As stated above, she continued to live at the hotel with the appellant and his family until the 1st day of July, 1905. She further testified that she first complained of the outrage to the lady cook at the hotel during the first week of June, 1905, and that a few days later she complained to a young man, a nephew of the appellant. Some days later she complained by letter to her stepmother, who resided in Seattle. Her reasons for not making complaint sooner are thus stated in her own language: 'I was there, and I had no home but theirs, and I was not able to make a living for myself, I thought. I didn't realize that he would do or could do what he did, or it would come to that. I was partially blind, and I was not able to make a living for myself very easy, and I thought a good deal of his wife, Mrs. Griffin, and I thought that if I ever told her and she believed me, it would cause a great deal of trouble, perhaps separation; if she did not believe me she would throw me out like a dog, and I had no place that I could really go to, at least, I thought I didn't, as my stepmother was not able to provide for me, and I was an orphan girl and partially blind, and my health was at the time not very good.' The persons to whom these several complaints were made were called as witnesses on the part of the state, and were permitted to testify, over the objection of the appellant, to the fact that complaints were made to them at or about the time stated by the prosecuting witness, and were permitted to testify, over like objection, to the details of such complaints to the extent of naming the appellant as the guilty party.

In its charge to the jury the court stated, among other things, that they had a right to consider 'whether or not under such circumstances as disclosed by the testimony in this case and the nature of the offense charged, whether complaint was likely to be made under all the circumstances as detailed, and if complaint was made, to whom, and the circumstances under which made, and whether made in a reasonable time, taking into consideration all the circumstances as detailed by the witness on the stand,' and that 'such facts and circumstances are all admissible in evidence as testimony to corroborate the testimony of the prosecuting witness.'

The appellant assigns as error the ruling of the court in permitting the witnesses called to prove the fact that the prosecuting witness had complained to them of the outrage, to testify that she named the appellant as the guilty party. We think this assignment is well taken. While there is a conflict of authority on the question, the great weight of authority sustains the rule announced by this court in State v. Hunter, 18 Wash. 670, 52 P. 247. The court there said: 'After a pretty thorough examination of the cases we think the better rule is to restrict the evidence to the fact of complaint, and that anything beyond this is hearsay of the most dangerous character.' While some of the cases hold that this rule is not violated by permitting the witnesses to state the name of the party accused, yet nearly all the authorities cited in State v. Hunter are to the contrary. Thus, in Thompson v. State, 38 Ind. 39, the court said: 'The following propositions will be found sustained by the authorities, many of which we cite: (1) That the prosecutor may show by the testimony of the prosecuting witness, or that of other witnesses, that she made complaint of the outrage recently after its commission, and when, where, and to whom it was made. (2) That he cannot be allowed to prove the name of the person charged with the crime, or the particulars narrated by her. (3) On the direct examination the practice has been merely to ask whether she made complaint that such an outrage had been perpetrated upon her, and to receive in answer only a simple yes or no. (4) That such statement is only corroborative of her testimony, and is not evidence of the fact upon which the jury can find a verdict of guilty; and when she is not a witness in the case, it is wholly inadmissible.' And many authorities are cited to sustain the rule there announced. See, also, Bray v. State (Ala.) 31 So. 107; Stevens v. People (Ill.) 41 N.E. 856; State v. Daugherty, 63 Kan. 473, 65 P. 695; Ashford v. State (Miss.) 33 So. 174; Anderson v. State (Miss.)

35 So. 202; Wigmore on Evidence, § 1136; 23 Am. & Eng. Enc. of Law (2d Ed.) p. 876.

Error is also assigned to the ruling of the court in admitting in evidence the complaints of the outrage made to third persons under the circumstances above set forth. The origin of the rule admitting such complaints in evidence in this class of cases is thus stated by Mr. Justice Holmes, in Commonwealth v. Cleary, 172 Mass. 175, 51 N.E. 746 'The rule that in trials for rape the government may or must prove that the woman concerned made complaint soon after the commission of the offense is a perverted survival of the ancient requirement that she should make hue and cry as a preliminary to bringing her appeal. Glandville 14, 6; Bracton Fol. 147a, Fleeta 1, c. 25, § 14, Stat. 4, Edw. 1 St. 2. Appeals became obsolete and left rape to be dealt with by indictment before the development of the modern law of evidence. Lord Hale, after stating the old law as to appeals quoting Bracton, went on to deal with the evidence on an indictment for rape. Having stated that the party ravished might give evidence upon oath, the value of which would be affected by corroborative facts, he recurred to the matter of fresh complaint, and said that if she 'presently discovered the offense, made pursuit after the offender,' etc., 'these and the like are concurring evidences to give greater probability to her testimony.' 1 Hale P. C. 632 and 633. Obviously this was suggested by and merely echoed the requirement in appeals, but it gave that requirement a more or less new turn. If it means what it has been taken to mean, that the government can prove fresh complaint as part of its original case, it cannot be justified by the general principles of evidence which now prevail. In general, you cannot corroborate the testimony of a witness by proof that he has said the same thing before, when not under oath. But Lord Hale's statement of the law has survived as an arbitrary rule in the particular case, notwithstanding the later developed principles of evidence, and, although nowadays recognized as an exception attempted to be fortified by exceptional reasons, still is put upon the ground upon which it was placed by his words. The evidence is not admitted as a part of the res gestae, or as evidence of the truth of the things alleged, or solely for the purpose of disproving consent, but for the more general purpose of confirming the testimony of the ravished woman.' Some of the courts adhere to the ancient rule, and exclude evidence of complaints made any considerable length of time after the commission of the offense. People v. Lambert, 120 Cal. 170, 52 P. 307; People v. O'Sullivan, 104 N.Y. 481, 10 N.E. 880, 58 Am. Rep. 530; Dunn v. State, 45 Ohio St. 249, 12 N.E. 826; Lyles v. United States, 20 App. D. C. 559; R. v. Lillyman, 2 Q. B. 167 (1896). Other authorities hold that mere lapse of time will not exclude evidence of the complaint, but is a circumstance for the consideration of the jury. State v. Niles, 47 Vt. 82; ...