State v. Hornaday

• Decision Date: 27 March 1912
• Citation: 67 Wash. 660,122 P. 322
• Parties: STATE v. HORNADAY.
• Court: Washington Supreme Court

122 P. 322

67 Wash. 660

STATE v. HORNADAY.

Supreme Court of Washington

March 27, 1912

Department 1. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

William Hornaday was convicted of incest, and he appeals. Affirmed.

J. Matthew Murray and Walter M. Harvey, for appellant.

J. L McMurray and A. O. Burmeister, for the State.

CROW J.

The defendant, William Hornaday, was convicted of the crime of incest, and has appealed.

The evidence, which was sufficient to sustain the verdict, will not be discussed. When the state first rested its case, appellant moved for a directed verdict of acquittal for the want of proof that the prosecuting witness was his daughter. We find there was evidence of that fact. Before the motion was decided by the trial judge, the prosecuting attorney was granted leave to reopen the case and introduce further evidence of such relationship. Appellant now insists this was reversible error. We cannot sustain this contention. The privilege granted the state was within the sound discretion of the trial judge, and no abuse of discretion has been shown.

Appellant contends that the evidence of the prosecuting witness, if accepted, discloses the fact that she was his accomplice, and that the trial judge erred in failing to instruct the jury that he could not be convicted upon her uncorroborated evidence. The court instructed as follows: 'If you find from the evidence, beyond a reasonable doubt, that the prosecutrix, Grace Hornaday, was the daughter of the defendant, and if you further find, beyond a reasonable doubt, that the defendant did have sexual intercourse with her at any time within three years prior to the filing of the information herein, and you further find that her credibility has not been successfully impeached, and you believe her testimony and disbelieve the defendant, you have a right to return a verdict of guilty against the defendant even though there is no corroborative evidence as to any specific act of intercourse between them. You are further instructed that if you believe from the evidence that the crime charged against the defendant rests alone upon the testimony of the prosecuting witness, Grace Hornaday, then you should scrutinize her testimony with care and caution.' These instructions were as favorable as appellant could ask. In State v. Aker, 54 Wash. 342 103 P. 420, an incest case, this court held that corroboration of the prosecuting witness was not necessary. Appellant, however, insists that, according to the statements of the prosecuting witness, she was his accomplice, and that not only should the jury have been cautioned to carefully weigh her evidence, but they should also have been warned against a conviction upon her uncorroborated statement. Her evidence shows that she was not his accomplice, but the unwilling victim of his lust; that she was within his power; and that she at no time consented to criminal relations with him. Mr. Wharton, in his work on Criminal Evidence (9th Ed.), at section 440, says: 'An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of a crime. The co-operation in...