State v. Hart

• Decision Date: 11 April 1922
• Docket Number: 16830.
• Citation: 205 P. 836,119 Wash. 529
• Parties: STATE v. HART.
• Court: Washington Supreme Court

205 P. 836

119 Wash. 529

STATE v. HART.

No. 16830.

Supreme Court of Washington

April 11, 1922

Department 1.

Appeal from Superior Court, King County; E. M. Card, Judge.

Charles Hart was convicted of attempted carnal knowledge of a female child, and he appeals. Reversed and remanded, with directions.

Albert D. Martin and Wm. R. Bell, both of Seattle for appellant.

Malcolm Douglas and Bert C. Ross, both of Seattle, for the State.

MITCHELL J.

The appellant was charged by an information with the crime of carnal knowledge of a female child not his wife. He was by a jury found guilty of attempted carnal knowledge of the girl and has appealed.

We shall notice only two assignments of error: (1) The giving of an instruction; and (2) the denial of a motion for a new trial.

The prosecuting witness testified that the appellant had sexual intercourse with her on four occasions: About March 12, 1920 March 19, 1920; April 20 to 25, 1920; and June 7, 1920. The acts occurred at different places, the last one at 3410 Albion place, Seattle. It appears that she testified fully and frankly that each transaction was a completed act. She did not mention any other occasion, nor did she testify that he attempted to have sexual intercourse with her at any time that he did not fully accomplish his purpose. Another witness for the state, one Harry A. Cook, testified that, after the appellant was apprehended, he was present at an office at the police headquarters building when a representative of the prosecuting attorney's office questioned the appellant concerning the complaint against him, and that the appellant denied the accusation, but latter admitted he had attempted sexual intercourse with the girl. At the close of the state's case, upon motion of counsel for the appellant the state elected to stand upon the act testified to have occurred on June 7.

The defense was a denial of any improper relations with the prosecutrix, and an alibi. There was an abundance of evidence to support the alibi, but it of course was a matter for the jury.

After instructing the jury generally, including the law upon the subject of the crime charged, the court submitted to them the lesser offense of attempt to commit the crime charged. The instruction was as follows:

'An act done with intent to commit a crime, and tending, but failing, to accomplish it, is an attempt to commit that crime. Every person who shall do any act with intent to commit the crime of carnal knowledge of a child, and tending, but failing, to accomplish it, shall be guilty of the crime of attempted carnal knowledge of a child.'

The giving of this instruction, duly excepted to, is one of the errors assigned. Certainly there is no testimony in the case showing anything but completed acts of sexual relations, other than the testimony of Harry A. Cook; and his testimony as to the admission made by the appellant does not invest that admission with the remotest idea of either place or time. If the testimony had been that the appellant had admitted he made an attempt on June 7, 1920, or at the place the girl testified the completed act, relied on by the state, took place, the instruction would be differently circumstanced; but, as the case was made, the state having elected to stand upon that date as the time of the offense for which a conviction was asked, and she having testified as to the place, the instruction was erroneous.

Section 2060, Rem. Code, provides that the precise time when the crime was committed need not be stated, but it may be alleged to have been committed at any time before the date of the signing of the indictment or filing of the information, and within the time an action may be commenced therefor. But there is the added qualification contained in the section of an exception where the time is a material ingredient. However, the proposition presented in this case is one of proof, and not of pleading. It is a question of proof in a case where the defense is a general denial, supplemented by that of an alibi, which is always a proper procedure under the general issue of 'not guilty.' In the case of State v. Moss, 73 Wash. 430, 131 P. 1132, which was a prosecution for adultery, wherein a number of acts were shown, and wherein there was no defense of alibi, the court, after finding there had been, in legal effect, an election by the state to rely on a particular act for a conviction, said:

'While under Rem. & Bal. Code, § 2060, the precise time at which the crime was committed need not be stated in the indictment or information, but may be placed at any time prior to the finding of the indictment or

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