State v. Harold

• Decision Date: 08 November 1954
• Docket Number: No. 32592,32592
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Arlie HAROLD, Appellant.

Page 505

45 Wn.2d 505

275 P.2d 895

The STATE of Washington, Respondent, v. Arlie HAROLD, Appellant.

No. 32592.

Supreme Court of Washington, Department 2.

Nov. 8, 1954.

Southard & Palmer, Ephrata, for appellant.

Robert S. Campbell, Jr., Pros. Atty., Grant County, Ephrata, for respondent.

SCHWELLENBACH, Justice.

This is an appeal from a judgment and sentence upon conviction for the crime of carnal knowledge of a female child under the age of eighteen years. The information charged:

'* * * That the said Arlie Harold in the County of Grant, State of Washington between the 1st day of April and the 4th day of April 1953, wilfully, unlawfully and feloniously did carnally know and abuse one Jane Doe, then and there a female child under the age of eighteen years, to-wit, of the age of sixteen years, and not then and there the wife of the said Arlie Harold, * * *.'

The prosecuting witness was the defendant's granddaughter. She was sixteen years old at the time of the alleged crime. Her parents were divorced in 1944 and the custody of her brother and herself was awarded to the father, who placed them with his parents who resided on a farm about five miles outside of Coulee City in Grant county.

The girl testified that around two or three o'clock in the morning between April 1 and 4, 1953, her grandfather came into her bedroom and had sexual intercourse with her. She testified that there had been about fifty acts of intercourse within the past four years. She stated that while the act was being consummated she turned her head and could see a light in the chicken house and that her grandfather told her that her grandmother was out there looking after the chickens.

She ran away in the early morning of April 17 and caught a ride from Coulee City of Everett. From there she took a bus to Seattle where she went to live with an aunt and uncle. That evening the defendant reported to Marvin Collier, the town marshal of Coulee City, that his granddaughter had run away. He stated that he was afraid she would tell anything to get him in trouble. This statement aroused the curiosity of Collier. He obtained $75 from the defendant for expense money, and investigated as to her whereabouts. He learned that she was in Seattle and went over there to see her. After questioning her for five hours, she finally complained about her grandfather's conduct. He then returned to Grant county and reported to the sheriff. Later, he took defendant to the sheriff's office in Ephrata, where the prosecutor placed defendant under a lie detector and questioned him. As a result of the questioning, and of certain admissions made by defendant, he was arrested, and charged with the crime of carnal knowledge.

Defendant denied having intercourse with his granddaughter at the time charged or at any other time. He testified that he was never alone with her at any time; that his wife did not go out to the chicken house in the night time between April 1 and 4, and that the only time she did go out during that month was on April 10. This testimony was corroborated by his wife, his son (the girl's father), and by his grandson (the girl's brother). He also testified that he had suffered three strokes, two in 1940, and one in 1944; that he went to a chiropractor in Soap Lake, and later to a doctor at Coulee Dam; that he took aspirin tablets for relief. He testified that the strokes affected his sexual capacity and also resulted in his making irresponsible statements which he could not later remmber. A number of his neighbors and acquaintances of many years' standing testified for him as character witnesses. The jury evidently believed the girl and the state's witnesses and did not believe defendant and his witnesses. It returned a verdict of guilty and this appeal follows the judgment and sentence.

Error is assigned in the following respects: that the information does not charge facts sufficient to constitute the crime; failure to grant motion to dismiss; giving certain instructions and refusing to give instructions proposed by defendant; refusing to propound interrogatories; admission and exclusion of testimony; denial of motion in arrest of judgment or for new trial; and prejudicial misconduct by prosecutor.

Appellant attacks the information because it does not allege that he is a male person. Chapter 112 of the Laws of 1943, Cf. RCW 9.79.020, provides: 'Every male person who shall carally know and abuse any female child under the age of eighteen years, not his wife, and every female person who shall have sexual intercourse with any male child under the age of eighteen years, * * *.' The information charged that Arlie Harold did carnally know and abuse a female child under the age of eighteen years, not his wife. The necessary implication, from the language of the information, is that Arlie Harold is a male person. We find no merit in the assignment.

Error is assigned in that the trial court refused to grant appellant's motion to dismiss on the ground that there was a failure to prove the time alleged as to the commission of the crime. The information alleged that the act occurred between the 1st and 4th day of April, 1953. The girl testified that she was not sure of the exact date, but was certain that the act occurred between those dates. The court did not err in denying the motion. State v. Biggs, 57 Wash. 514, 107 P. 374; State v. Oberg, 187 Wash. 429, 60 P.2d 66.

Error is assigned in the giving of certain instructions and in the refusal to give certain requested instructions. We find no merit in this contention. The trial court instructed the jury fairly and completely on all of the issues of the case. Each instruction properly stated the law. A number of appellant's requested instructions were incorporated therein. He was not entitled, under the evidence, to any of the proposed instructions not given.

Appellant contends that the court erred in refusing to propound certain proposed interrogatories to the jury concerning the time of the alleged crime. In Robinson v. Silver Lake Ry. & Lumber Co., 163 Wash. 31, 299 P. 356, 358, we said:

'It is the settled law of this court that it is discretionary with the trial judge to refuse to submit interrogatories to the jury, or to withdraw interrogatories theretofore submitted, and his action in that regard will not be reviewed except for abuse of discretion. [Citing cases.]'

The trial judge stated that he felt that the question of time was very well covered by the general instruction on 'What is Essential to Convict', and he was afraid that the submission of the interrogatories might unduly emphasize that issue and might have a tendency to somewhat confuse the jury. We find no abuse of discretion here.

Error is assigned in the refusal to admit a certain book in which appellant had written that he plowed on April 10th. He testified that he had plowed on that day and was tired and that that was the reason his wife had gone out to look after the chickens that night. It seems obvious that the book in question was not a business record as contemplated by RCW 5.44.110. It was, at most, a private diary. In Griffith v. Whittier, 37 Wash.2d 351, 223 P.2d 1062, we held that notations on a desk calendar book did not constitute a business record. Not being a business record, the book was a self-serving declaration and not admissible. Furthermore, it would not have proved any essential issue in the case.

Appellant complains of the admission of testimony concerning prior acts of intercourse. Such testimony is admissible to show lustful disposition toward her. State v. Crowder, 119 Wash. 450, 205 P. 850. While appellant concedes that this is the law, he contends that the prior acts relied on are too remote to have any probative value. In State v. Stevenson, 169 Wash. 10, 13 P.2d 47, we said that the question of excluding evidence because of remoteness rests largely in the sound discretion of the trial court, and the ruling of that court will not be disturbed unless the evidence offered was so remote in point of time as to be immaterial. Ordinarily, remoteness affects the weight, rather than the admissibility of the evidence. By...