State v. Harsted

• Decision Date: 04 December 1911
• Citation: 66 Wash. 158,119 P. 24
• Parties: STATE v. HARSTED.
• Court: Washington Supreme Court

119 P. 24

66 Wash. 158

STATE v. HARSTED.

Supreme Court of Washington

December 4, 1911

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Ole Harsted was convicted of crime, and he appeals. Affirmed.

Gill Hoyt & Frye, for appellant.

John F Murphy, Hugh M. Caldwell, and H. B. Butler, for the State.

GOSE, J.

This is an appeal from a judgment entered upon a verdict finding the appellant guilty of an assault in the second degree. The body of the information is as follows: 'He, said Ole Harsted in the county of King, state of Washington, on the 6th day of March, 1911, did then and there willfully, unlawfully, and feloniously make an assault upon the person of one Virgil Cooper, a male person, with intent then and there to commit the crime of sodomy upon said Virgil Cooper.'

A demurrer to the information, upon the ground that it does not state facts sufficient to constitute a crime or misdemeanor, was overruled. This ruling is assigned as error. The information was drawn under the provisions of Rem. & Bal. Code, § 2414, subd. 6. It provides: 'Every person who, under circumstances not amounting to assault in the first degree, * * * (6) shall assault another with intent to commit a felony * * * shall be guilty of assault in the second degree.' Sodomy is defined in Rem. & Bal. Code, § 2456. It is argued that, because the completed offense may be committed in more than one way, the precise facts constituting the attempt should have been set forth in the information. This argument might have merit if the appellant had been charged with having committed the crime of sodomy. It is obvious that one may be guilty of an attempt to commit the offense without the acts having proceeded far enough to indicate anything further than a general intent to commit the completed offense. Moreover, the crime is charged in the language of the statute, and that, subject to exceptions not applicable here, issufficient. People v. Williams, 59 Cal. 397; Honselman v. People, 168 Ill. 172, 48 N.E. 304; Kelly v. People, 192 Ill. 119, 61 N.E. 425, 85 Am. St. Rep. 323; State v. Ward, 35 Minn. 182, 28 N.W. 192; State v. Johnson, 114 Iowa, 430, 87 N.W. 279; State v. Phelps, 22 Wash. 181, 60 P. 134. The Honselman Case is directly in point. State v. Carey, 4 Wash. 424, 30 P. 729, cited by the appellant, is not in point. In that case Carey was charged with having practiced medicine without first having obtained a license. The information was held defective, in that in did not charge the acts which the statute makes definitive of the crime. State v. Campbell, 29 Tex. 44, 94 Am. Dec. 251, also cited by the appellant, supports his contention, but we do not desire to follow it.

Virgil Cooper, the boy upon whom the assault is alleged to have been made, testified that he was 11 years old, and that after the arrest of the appellant his throat and mouth were sore. While the boy was being detained one of the juvenile officers informed the prosecuting attorney that he had reason to believe that the boy had syphilis. Acting upon this statement, the prosecutor had the appellant's bond increased. Later he had the boy examined by two physicians, who reported to him that the boy did not have that disease. These facts in reference to the syphilitic symptoms of the boy appear from the statement of the prosecuting attorney. Appellant's counsel thereafter offered to prove that the county physician 'examined the boy and reported' that he had syphilis in the mouth, that the appellant's blood had been tested and 'found free from exterior evidence of siphilis,' and 'found free from taint.' His counsel further stated: 'I want to examine Dr. Hall, and ask whether he has made a blood test of the boy to determine whether he has syphilis, * * * and whether he did report to any official that the boy had syphilis in the mouth. * * * If he had it, then he had been in the habit of committing the offense with other men. That is where we think its materiality rests.' The offer was denied by the court. It is argued in the brief, and was pressed with much earnestness at the bar, that this ruling was error. We cannot acquiesce in this view. There was no direct offer to prove that the boy had syphilis. Counsel merely wanted to show that such a condition had been reported, and further wanted to inquire of the physician whether he had tested the boy's blood with a view of ascertaining whether it showed the presence of that disease. In proper cases the general reputation of a witness for immorality may be shown, but we think the better rule is that particular acts of immorality cannot be shown, either upon cross-examination or by the evidence of third persons, for the purpose of discrediting the witness. Cases may arise, however, where the evidence offered is of such a nature that it may be admitted within the discretion of the court. 2 Elliott on Evidence, § 978.

In two instructions the court admonished the jury that they should free their minds from prejudice and sympathy, 'whether for the defendant or any other person,' and that they should 'bring to bear a judgment that is cool, calculating, and sober, unaffected by any feeling of prejudice, uninfluenced by any feelings of sympathy, untrammeled by any anxiety or fear as to penalty.' In criticism of these instructions it is said that they reiterate the caution to the jury that they must determine the case 'freed from any of the mental processes by which human beings usually arrive at conclusions.' We cannot think that the instructions are erroneous. It is certainly the duty of the jury to free their minds from passion, prejudice, and sympathy, and determine the case solely upon the evidence. In other words, it is the plain duty of the jury to determine the guilt or innocence of the accused from the evidence in the case, leaving the penalty, if any, to be adjudged by the court. This is not a case where by reiteration and emphasis the court indirectly gets before the jury its view of the facts. If it were, we would not hesitate to order a new trial.

There was no error in the failure of the court to instruct as to an assault in the third degree. There is no evidence calling for such instruction. The appellant was either guilty as charged or not guilty. The law does not warrant an instruction covering an included crime when there is no evidence supporting it. State v. Kruger, 60 Wash. 542, 111 P. 769.

In defining a reasonable doubt, the court instructed the jury as follows: 'The burden is on the state of proving every fact material and necessary to a conviction by competent evidence beyond a reasonable doubt. It is not sufficient that the state should prove these facts by a mere preponderance of the testimony, nor, on the other hand, is it necessary that they should prove conclusively in such manner as to leave room for any doubt whatever. Very few things in the whole domain of human knowledge are susceptible of absolute proof. We can have a moral certainty or a reasonable certainty which may vary in degree, but rarely an absolute certainty. The expression 'reasonable doubt' means in law just what the words imply--a doubt founded upon some good reason. It must not arise from a merciful disposition or a kindly sympathetic feeling, or a desire to avoid performing a disagreeable duty. It must arise from the evidence or lack of evidence. It must not be a mere whim or a vague conjectural doubt or misgiving founded upon mere possibilities. It...