State v. Jennen

• Decision Date: 27 April 1961
• Docket Number: No. 35569,35569
• Citation: 58 Wn.2d 171,361 P.2d 739
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. George JENNEN, Appellant.

Page 171

58 Wn.2d 171

361 P.2d 739

STATE of Washington, Respondent, v. George JENNEN, Appellant.

No. 35569.

Supreme Court of Washington, En Banc.

April 27, 1961.

Gleeson & Smith, Carl Diana, Spokane, for appellant.

John J. Lally, Pros. Atty., Frank H. Johnson, George A. Kain, Deputies, Spokane, for respondent.

HILL, Judge.

The defendant, George W. Jennen, was charged with carnal knowledge of a female, fifteen years of age and not his wife. The defense was that he did not know the prosecutrix and had never seen her before. From a judgment and sentence, entered on a verdict of guilty, he appeals.

The most devastating testimony, in view of the defense interposed, was that of a policewoman who, with the knowledge and consent of the prosecutrix, listened over an extension telephone while the prosecutrix discussed her pregnancy with Mr. Jennen prior to his arrest. During two conversations he admitted his responsibility for her condition, fixed the date of their illicit relationship, cautioned her not to tell her parents, and promised to take care of her.

The admission of this testimony was assigned as error, having been obtained by means of a wire tap in violation of the defendant's constitutional right to be secure in his person and house 'against unreasonable searches and seizures' (United States constitution, amendment four) and not to be 'disturbed in his private affairs, or his home invaded, without authority of law' (Washington constitution, Art. I, § 7); and a violation of 47 U.S.C.A. § 605 (Federal Communications Act), which provides that:

'* * * no person not being authorized by the sender shall intercept any communication [by wire] and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * *.'

The Supreme Court of the United States has said:

'We hold that § 605 applies only to the exclusion in federal court proceedings of evidence obtained and sought to be divulged in violation thereof; it does not exclude such evidence in state court proceedings. Since we do not believe that Congress intended to impose a rule of evidence on the state courts, we do not decide whether it has the power to do so.' Schwartz v. State of Texas, 1952, 344 U.S. 199, 73 S.Ct. 232, 235, 97 L.Ed. 231.

However, we are not concerned in this case with any question of the application of the Federal Communications Act to intrastate communications because the Supreme Court made it abundantly clear in Rathbun v. United States, 1957, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134, that there has been no 'interception' within the purview of Section 605, supra, where an extension telephone was used with the consent of one of the parties to the conversation. The court stated (355 U.S. at pages 109, 110, 111, 78 S.Ct. at page 163):

'The telephone extension is a widely used instrument of home and office, yet with nothing to evidence congressional intent, petitioner argues that Congress meant to place a severe restriction on its ordinary use by subscribers, denying them the right to allow a family member, an employee, a trusted friend, or even the police to listen to a conversation to which a subscriber is a party. * * *

'* * * The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone. It has been conceded by those who believe the conduct here violates Section 605 that either party may record the conversation and publish it. The conduct of the party would differ in no way if instead of repeating the message he held out his handset so that another could hear out of it. We see no distinction between that sort of action and permitting an outsider to use an extension telephone for the same purpose.

* * *

* * *

'Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. * * *'

The foregoing quotations dispose of any contention by the defendant in this case: that his constitutional right of privacy has been violated by the policewoman's listening in on an extension to conversations between the prosecutrix and himself, she having consented thereto.

The information charged the defendant with carnal knowledge of Beverly Moreau. The state, on the basis of information gained after the trial began, was granted permission to add the words, 'whose true name is Beverly Keegan,' to the information. The circumstances were that Beverly Keegan's father had died when she was quite young. When she was four years old her mother had married Claude Moreau, and the child had, from that time forward, used the name Moreau. The defendant claimed surprise, and urges that the trial court abused its discretion in not granting a continuance and further erred in overruling his objections that the amendment was a matter of substance (not of form); and that there had been no arraignment plea, or opportunity to demur to the information thus amended. It is conceded that if there is a substantial amendment of an information it is necessary that the accused be rearraigned on the amended information. It is beyond cavil that there was no change in identity of the prosecuting witness. We not only have statutes (RCW 10.37.056(5) and 10.37.090) intended to relieve the administration of justice of the extremely technical objections referred to in Garland v. State of Washington, 1914, 232 U.S. 642, 646, 34 S.Ct. 456, 58 L.Ed. 772, 775, but we have held in a case involving the rape of a nine-year-old child that,

'* * * Whatever name the child was generally known by was her proper designation in the information. Where a person upon whom a crime is committed is referred to by the name he or she is generally known by in the neighborhood where the crime is committed, the use of such name in the information is proper, and there can be no fatal variance upon proof that the baptismal name or true name is otherwise. Such is the undoubted rule. * * * [fourteen cases cited]' State v. Myrberg, 1909, 56 Wash. 384, 386, 105 P. 622, 624.

Another case in point, which quotes one of the statutes to which we have referred, is State v. Ewing, 1912, 67 Wash. 395, 121 P. 834, where the defendant was charged with first degree assault on Sylvia Russell, and the evidence tended to show that the person assaulted was Sylvia Ewing, the wife of the accused. Answering the claim that there was a fatal variance, we said (67 Wash. at page 397, 121 P. at page 835):

'Formerly in the prosecution of offenses involving injuries to the person it was necessary to set forth in the indictment the name of the person injured with strictness, and slight variances, if the names were not idem sonans, were held fatal. But the modern rule is to treat the question as one of identify, and if the offense is otherwise described with sufficient certainty to identify the act to hold the variance immaterial, unless the misnomer actually misleads the defendant. 14 Ency.Pl. & Pr., 286. In this state such is the rule by statute. Section 2061 of Rem. & Bal.Code [now RCW 10.37.090], is as follows:

"When the crime involves the commission of or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured is not material."

Had the state not amended the information in the present case, the evidence that the girl known in the community as Beverly Moreau was actually Beverly Keegan, would not have been a fatal variance; the amendment was not necessary.

The defendant has made no showing as to any way in which a continuance would have been of any avail to him or of any way in which he was prejudiced by the failure to grant it. Any information concerning the age of the prosecutrix that the defendant could have secured, had he known the name of the prosecuting witness to be Keegan, was immediately made available to him by the production of her birth certificate. The amendment was a matter of form and not of substance.

It is urged that Claude Moreau, her stepfather, in whose home the prosecuting witness had lived for twelve years, should not have been permitted to testify as to her age. The case of State v. Rackich, 1911, 66 Wash. 390, 119 P. 843, 37 L.R.A.,N.S., 760, answers all of the contentions of the defendant on this issue. As we point out in that case, a witness may testify as to the ages of the other members of his family. Being a stepfather, such evidence as to the age of a stepchild may be weaker than that of the natural parents; however, any objection would go to its weight and not to its admissibility.

The defendant assigns error to the instruction on presumption of innocence, which told the jury that (instruction No. 7):

'* * * This presumption continues with the defendant throughout all the stages of the trial...