State v. Huey

• Court: Washington Supreme Court
• Writing for the Court: JEFFERS, Justice.
• Citation: State v. Huey, 128 P.2d 314, 14 Wn.2d 387 (Wash. 1942)
• Decision Date: 30 July 1942
• Docket Number: 28669.
• Parties: STATE v. HUEY.

128 P.2d 314

14 Wn.2d 387

STATE v. HUEY.

No. 28669.

Supreme Court of Washington

July 30, 1942

Department 2.

Raymond V. Huey was convicted of taking indecent liberties with a female under the age of 15 years, and he appeals.

Affirmed.

Appeal from Superior Court, Yakima County; Robert J. Willis, judge.

George M. Martin, of Yakima, for appellant.

Lloyd L. Wiehl and Owen Clarke, both of Yakima, for respondent.

JEFFERS Justice.

On October 7, 1941, defendant, Raymond L. Huey, was, by information filed in the superior court for Yakima county charged with the crime of taking indecent liberties with a female under the age of fifteen years, to-wit, of the age of three years. See Rem.Rev.Stat. Sup. § 2442. On November 17th defendant was arraigned, and he entered a written plea of not guilty, and also a special plea of not guilty by reason of mental irresponsibility at the time of the act alleged in the information, further stating in his special plea that he has become mentally responsible since the time of the alleged act. Thereafter, on the same day, the cause came on for trial Before the court and jury, and resulted in a verdict of guilty. A motion for new trial was made and denied, and judgment and sentence on the verdict was imposed on December 10, 1941. Oral notice of appeal was given by the defendant on December 10, 1941.

Appellant contends that the trial court erred in withdrawing from the consideration of the jury the question of mental irresponsibility, as covered by instructions Nos. 5, 6, 7, 8 and 9, originally submitted to the jury; in giving to the jury new instructions Nos. 5 and 8, together with introductory and closing instructions therewith; and in refusing to grant appellant's motion for a new trial.

It is not contended that there was not sufficient evidence to warrant the jury in finding that the act charged in the information was committed by appellant. Neither is there any claim that the trial court exceeded its power, in so far as the time and manner in which the above instructions were withdrawn and new instructions given is concerned, but the sole question argued by appellant is that the court erred in withdrawing from the consideration of the jury the question of the mental irresponsibility of appellant at the time of the alleged act.

We shall set out the substance of the testimony which we deem necessary to consider in a determination of the question presented. Robert Alderson, and employee of the Pacific Power & Light Co., and Archibald Woest, the driver of a milk wagon were called by the state. They both testified that on October 6, 1941, in Yakima, Washington, about eleven-thirty in the morning, they saw appellant taking liberties with the person of a little girl about three years of age. They described just what they saw take place. The substance of this testimony was that they saw appellant sitting on the curb of the street, in a location more or less protected from houses by low trees; that when first seen, the little girl named in the information was lying on the ground, with her dress pulled up, and appellant had his hand on her privates that appellant then took the little girl on his lap, where he continued the same operation.

Mr. Woest testified that he stopped his truck, and asked appellant what he was doing, and told him to leave the child alone; that appellant answered, 'I ain't doing nothing;' that at the time Mr. Woest spoke to appellant, he had the child on his lap, but immediately released her and she went down the street. This witness further testified that he talked to appellant, and did not notice anything to indicate appellant was intoxicated, although the witness could smell liquor on him; that when appellant left, the witness followed him in his truck, and when he caught up with appellant, he asked him where he was going, to which appellant answered 'down town,' whereupon Mr. Woest asked him to jump in; that appellant got in the truck, and Mr. Woest then turned the truck around to go back to the scene of the alleged act, and appellant said that was not the direction he was going. Mr. Woest testified that he then drove to where he had first seen appellant, and stopped the truck, when appellant said, 'What are you stopping here for'; that after the truck stopped, appellant got out and ran in between some buildings by the Straus apartments; that the witness drove around the corner just as appellant came out of one of the apartment houses, and the witness jumped out of his truck and walked up to appellant; that by that time an officer had arrived.

Frank Pozarich, a police officer called by the state, testified that he received a call about eleven-forty-five on the morning of October 6th, to go to North Fourth avenue and pick up a man; that Mr. Alderson pointed out appellant to him, whereupon he arrested appellant and took him in; that appellant had been drinking, but was not in such a condition that he would have been picked up on the street as a drunk; that appellant walked all right and talked all right.

Ray Derby, another police officer, testified that he saw appellant when he was brought to the police station, and that while he could smell liquor on him, appellant seemed to talk normally and walked all right; that he was not drunk.

James Carter was called by appellant, and testified that he had known appellant about four months; that appellant had a room at the Straus apartments; that he saw appellant between eleven and twelve o'clock, on October 6th, lying out in the road, drunk, and saw him a few minutes later when they took him to jail. While this witness testified he saw appellant lying in the street, he further stated that he passed by him and did not attempt to speak to him. He testified that he did not know that appellant was drunk, but that he had seen him drinking the night Before and he thought he was drunk. This witness admitted that he had been twice convicted of crime, and at the time of the trial was in the county jail, in the same tank with appellant.

Appellant took the stand and testified in his own behalf. His testimony was to the effect that he had taken care of children in the neighborhood many times, among them the little girl involved herein; that at the time he was arrested, he did not know what he was arrested for. On cross-examination he testified that he had been drinking the morning of October 6th; that no one forced him to drink; that he did not know when they picked him up and put him in jail. While appellant denied ever having molested this little girl, and denied that he had committed the act with which he was charged, his denial was qualified by other answers to the effect that, so far as he knew, he did not commit the act charged. Appellant was asked, among others, the following questions:

'Q. You can remember, then, you didn't do it? A. I just said I don't even remember when they put me in jail; didn't know anything that afternoon. * * *

'Q. Is it possible that it could have happened and you not know it? * * * A. Well, I don't know how I would answer that for I know that I've been places that they've--they've told me I've been places, when I was drinking, that I don't remember being.

'Q. Do you remember everything that happened on this particular day? A. No, I don't.'

Appellant admitted that he had been convicted three or four times previous to the present charge, but for minor offenses.

There was no medical testimony introduced in this case, and there was no testimony tending to show any mental irresponsibility on the part of appellant other than as indicated herein. If any temporary mental irresponsibility was shown, in our opinion, it appears conclusively from the testimony that such mental condition was the result of voluntary intoxication.

The trial court originally gave instructions Nos. 5, 6, 7, 8 and 9. These instructions dealt with the question of voluntary intoxication and mental irresponsibility because of intoxication. After the jury had deliberated for some time, the court called them in and withdrew from their consideration the above mentioned instructions, and in their place gave and following:

'Gentlemen of the Jury, you are instructed that it is provided by a statute of this state that 'no condition of mind induced by the voluntary act of a person charged with a crime shall be deemed mental irresponsibility.'

'The court further instructs you that because of such above quoted statutory provision, any temporary mental irresponsibility which might have affected the defendant at the time of the alleged offense would not be an excuse or justification for the commission of such offense, if in fact it was committed.

'You are further instructed, therefore, that even though the defendant was in a condition of mental irresponsibility at the time of the commission of the alleged offense, such mental irresponsibility if resulting solely from a state of voluntary intoxication would not excuse the defendant, or in any way affect the question as to whether or not the alleged offense had or had not been committed.

'The court further instructs you that there has been no evidence introduced in this case tending to establish a condition of...