State v. Hunter

• Decision Date: 23 February 1898
• Citation: 52 P. 247,18 Wash. 670
• Parties: STATE v. HUNTER.
• Court: Washington Supreme Court

52 P. 247

18 Wash. 670

STATE v. HUNTER.

Supreme Court of Washington

February 23, 1898

Appeal from superior court, King county; Charles H. Ayer, Judge.

Newton Hunter was convicted of an assault with intent to commit rape, and he appeals. Affirmed.

John F. Dore, Daniel T. Cross, and John B. Wright for appellant.

James F. McElroy and John B. Hart, for the State.

GORDON J.

The information upon which the appellant was convicted is as follows (omitting formal parts): "He, the said Newton Hunter, in the county of King, state of Washington, on the 22d day of February, A. D. 1897, in and upon one Kate Simey a female child under the age of twelve years, to wit, of the age of eight years, an assault did make, with the intent then and there to commit the crime of rape in and upon the said Kate Simey, and did then and there beat bruise, wound, and illtreat the said Kate Simey, with the intent then and there her, the said Kate Simey, by force and violence, and against her will, unlawfully and feloniously to ravish, carnally know, and abuse." From the judgment of conviction and the order denying a new trial he has appealed. Error is predicated upon various rulings occurring at the trial.

We think it was not error for the court to permit the mother of the prosecutrix, who was a witness, to describe the condition of the clothing of the child, nor to state what she found upon it. It was descriptive merely. Nor was it error to permit the mother to testify that the prosecutrix made complaint to her immediately, or at least within an hour, after the assault was committed. The authorities bearing upon this question are numerous, and very conflicting. All, or nearly all, of them hold that it may be shown that the prosecutrix made complaint immediately or soon after the alleged injury was committed. In addition to this, numerous cases hold that the particulars of the complaint may be shown. State v. De Wolf, 8 Conn. 93; Burt v. State, 23 Ohio St. 394; Johnson v. State, 17 Ohio, 593; Benstine v. State, 2 Lea, 175; Phillips v. State, 9 Humph. 246; State v. Murphy (R. I.) 17 A. 998; State v. Fitzsimon (R. I.) 27 A. 446. After a pretty thorough examination of the cases, we think the better rule is to restrict the evidence to the fact of complaint, and that anything beyond that is hearsay of the most dangerous character. 2 Bish. Cr. Proc. § 963; Whart. Cr. Law, § 566; Baccio v. People, 41 N.Y. 265; Scott v. State, 48 Ala. 420; Pleasant v. State, 15 Ark. 624; People v. Graham, 21 Cal. 261; Thompson v. State, 38 Ind. 39; State v. Richards, 33 Iowa, 420; State v. Gruso, 28 La. Ann. 952; State v. Shettleworth, 18 Minn. 208 (Gil. 191); State v. Jones, 61 Mo. 232; 1 Rosc. Cr. Ev. (8th Ed.) p. 45; 19 Am. & Eng. Enc. Law, p. 959. But we do not think that the evidence complained of was received in violation of this rule, and, under the circumstances, it was not error to receive it.

The next exception relates to the reception in evidence of a plat or plan of the scene of the alleged assault. This plan was prepared by the witness Lane, and did not purport to accurately describe the premises. An examination of the record, however, shows that it was received for the sole purpose of enabling the witness to illustrate his testimony, and by a special instruction the court correctly directed the attention of the jury to it, and stated the purpose for which they were permitted to consider it.

Assignments Nos. 4, 5, 6, and 8 do not, in our opinion, warrant special mention. We think they are without merit.

Indorsed upon the information as a witness for the state was the name of Eugene Sayer. At the trial the witness stated that his name was Eugene Sears. Appellant objected to his testifying on the ground that his name was not indorsed upon the information. The court overruled the objection. Appellant concedes that, had the prosecutor, on ascertaining his mistake, applied to the court to rectify it, he might have had leave of court to indorse the correct name of the witness, and that, had such course been pursued, appellant would have had no ground for exception. We are unable to perceive how the appellant was prejudiced by the course that was pursued. No application was made for continuance, and we think the court did not err in overruling the objection.

At different stages of the trial, and also at the close of the evidence, appellant requested the court to have the jury view the scene of the crime. It appears that counsel for the appellant expressed the opinion that it would be error for the jury to go without the court and defendant and counsel on both sides, "because it would be a part of the trial." It also appears that the court, after considering the distance and length of time that such an examination would consume, denied the request. This was a matter within the discretion of the trial judge (2 Hill's Code, § 1312), and we cannot say from the record that the discretion was abused.

The state introduced evidence to show the character of footprints found near the scene of the assault shortly after it was committed, and the appellant offered to show by certain witnesses that they had heard one Fred Sears, who was at the time of the trial absent from the state, say that the footprints referred to were made by him (Sears). We think that the testimony was properly excluded. It was clearly hearsay.

The following instruction was requested by the appellant, and the refusal of the court to give it constitutes the twelfth assignment of error: "The court instructs you that, in order to find defendant guilty of the offense charged in this information, that the alleged assault with intent to commit rape must have been committed without the consent of Kate Simey, the party injured." The case of Whitcher v. State, 2 Wash. 286, 26 P. 268, is cited by appellant in support of the instruction as asked. It is not clear that the rule contended for by the appellant received the sanction of a majority of the court in that case. It was agreed to by two of the judges. Of the other members of the court two concurred specially in the judgment of reversal on the ground that the information in the case did not charge a crime, and the remaining member concurred in holding the information sufficient; but did not concur in the disposition made of the case, and expressly dissented from the view advanced in the principal opinion that the consent of the female constituted a defense to the felonious assault. We now think that the view expressed in the dissenting opinion of Judge Dunbar in that case better accords with the spirit of the law, with reason, and the authorities bearing on the question. Since the decision in Whitcher v. State was reached, we have held the act of 1886 (page 84), which attempted to amend the prior law (section 28, Pen. Code) by substituting the word "sixteen" for the word "twelve," void. State v. Halbert, 14 Wash. 306, 44 P. 538; State v. Dillon, 14 Wash. 703, 46 P. 1119. And the present law on the subject fixes the age of consent at 18 years. Laws 1897, p. 19. However, the principle underlying the question now under discussion is unaffected by these changes. All of the authorities agree that force and want of consent are conclusively presumed where carnal knowledge is had of a female under the age of consent. But a distinction is made in some of the cases-in so far as relates to the consent or nonconsent of the female-between an assault with intent to carnally know a female child and carnal knowledge of such child. There are a few-and only a few-American cases which hold that the statute which makes the child's consent immaterial in defense of the substantive crime does not extend to the assault, upon the common-law theory that violence consented to does not constitute an assault. Smith v. State, 12 Ohio St. 466; State v. Pickett, 11 Nev. 255; Bish. St. Cr. (2d Ed.) § 496. We do not think that there is, in principle, any sound basis for the distinction. The offense of carnally knowing a female child under the age of 12 years necessarily includes the less offense of assault with intent. The complete offense is merely an aggravation of the felonious assault, and the child's legal inability to consent to the sexual...