State v. Hardin

• Decision Date: 26 November 1912
• Citation: 63 Or. 305,127 P. 789
• Parties: STATE v. HARDIN.
• Court: Oregon Supreme Court

127 P. 789

63 Or. 305

STATE v. HARDIN.

Supreme Court of Oregon

November 26, 1912

Appeal from Circuit Court, Clackamas County; J.U. Campbell, Judge.

William M. Hardin was convicted of statutory rape, and appeals. Affirmed.

The defendant was tried and convicted of the crime of statutory rape upon his stepdaughter, Eva Phelps, formerly Eva Woods, a girl under the age of 16 years, and from a sentence following such conviction he appeals.

Grant B. Dimick, of Oregon City, and Q.L. Matthews, of Portland (Dimick & Dimick, of Oregon City, M. Morehead and Christopherson & Matthews, all of Portland, on the brief) for appellant.

E.B Tongue, of Hillsboro, and Livy Stipp, of Oregon City, for the State.

BEAN J.

The indictment charges the crime to have been committed on the 15th day of October, 1911, and alleges the defendant, William Marlin Hardin, did then carnally know said Eva Phelps, a female child under the age of 16 years. The defendant entered a plea of not guilty. At the commencement of the trial counsel for defendant requested the prosecution to fix a date of the offense upon which it was intended to base the case. The district attorney stated that the state would rely upon the act which produced the pregnancy committed on or about October 15, 1909, the date "1911" in the indictment being an error, of which defendant's counsel were notified. The evidence tended to show that the defendant had criminal relation with the girl from the time she was about 12 years old, extending over a period of about three years, and until August, 1910, when she was married and left his home; that Eva Phelps was of the age of 16 years August 30, 1911, and prior to the date named in the indictment.

On account of the prosecutrix being of the age of consent at the alleged date of the commission of the crime, counsel for the defense asked the court to direct a verdict of acquittal, and contended that the state could not sustain the indictment by proof that the victim was under the age of 16 years at the time of the commission of the offense, at a date prior to that alleged; that the court erred in admitting such proof over the objection of the defendant, and instructing the jury that the alleged date of the commission of the crime was immaterial. The instruction given upon this point of the case was as follows: "It is therefore necessary for the state to prove to you beyond a reasonable doubt that this crime was committed as charged in the indictment, within three years from the time of finding the indictment, the particular date not being material, the particular act, however, being material; that is, the prosecuting attorney stated that he intends that this particular date shall cover the time of the sexual intercourse by which the prosecuting witness, or this Eva Phelps, became pregnant of a child stillborn during the month of January, 1910, claiming that it had taken place the latter part of October, or the early part of November. Now to that particular time you are confined. They must prove that this act they complain of occurred on or about that time; the exact date not being material. They must also show to you that at the time the act complained of was committed against this girl she was under the age of 16 years. *** It is incumbent upon the prosecution in this case to prove to you beyond a reasonable doubt that the defendant is guilty of the particular act charged in the indictment, and if the testimony is so indefinite that you cannot all agree upon the same act, or if, having agreed upon the same act, there is reasonable doubt in your minds as to whether the defendant committed the crime or not, then your verdict must be for the defendant." Section 1443, L.O.L., provides that: "That the precise time at which the crime was committed need not be stated in the indictment, but it may be alleged to have been committed at any time before the finding thereof, and within the time in which an action may be commenced therefor, except where the time is a material ingredient in the crime." See, also, upon this phase of the case State v. Eggleston, 45 Or. 346, 358, 77 P. 738. It is well settled in this state that in criminal actions the prosecution is compelled and required to prove some particular act constituting the crime, and to rely upon that for a conviction, but it is not compelled...