State v. Kincaid

• Decision Date: 09 July 1912
• Citation: 124 P. 684,69 Wash. 273
• Court: Washington Supreme Court
• Parties: STATE v. KINCAID.

124 P. 684

69 Wash. 273

STATE v. KINCAID.

Supreme Court of Washington

July 9, 1912

Department 2. Appeal from Superior Court, Whatcom County; John A Kellogg, Judge.

John C Kincaid was convicted of statutory rape, and he appeals. Affirmed.

Henry C. Beach and George Livesey, for appellant.

Frank W. Bixby and H. C. Thompson, both of Bellingham, for the State.

ELLIS J.

The defendant was found guilty by a jury of the crime of statutory rape, committed upon the person of a 12 year old girl. A motion and supplemental motion for a new trial were overruled by the court. From a judgment of conviction, and sentence to imprisonment in the penitentiary, the defendant has appealed.

The appellant's first contention is that the state failed to prove venue as laid in the information. There was no direct statement by any witness that the crime was committed in Whatcom county. The rule, however, is established by overwhelming authority that venue, like any other fact, may be found upon circumstantial evidence, and that, where it may be reasonably inferred from the evidence that the crime was committed in the county designated in the information, the venue is sufficiently established. 'The venue need not be proved by direct and positive evidence. It is sufficient if it may be reasonably inferred from the facts and circumstances which are proven and are involved in the criminal transaction. It is enough if it may be inferred from the circumstances by the jury that the crime was committed in the county alleged in the indictment. The venue need not be proved beyond a reasonable doubt. If the only rational conclusion from the facts in evidence is that the crime was committed in the county alleged, the proof is sufficient. The venue may be proved by circumstantial evidence. It is not necessary that a witness expressly testifies that the crime was committed in the county as charged in the indictment. Such direct and positive testimony may be dispensed with; for it has been repeatedly held, where there is no direct testimony showing the venue, that if there are references in the evidence to streets, public buildings, or other landmarks, at or near the scene of the crime, which are either known to the members of the jury or which may probably be familiar to them, the jury may safely presume that the venue has been proved.' Underwood, Crim. Ev. (2d Ed.) pp. 59, 60, 61, § 36; 13 Ency. of Evidence, p. 932; 12 Cyc. pp. 494, 495; Wilson v. State, 62 Ark. 497, 36 S.W. 842, 54 Am. St. Rep. 303; McCune v. State, 42 Fla. 192, 27 So. 867, 89 Am. St. Rep. 225; People v. McGregar, 88 Cal. 140, 26 P. 97; State v. Burns, 48 Mo. 438; State v. Ruth, 14 Mo.App. 226; Commonwealth v. Ackland, 107 Mass. 211; People v. Smith, 121 Cal. 355, 53 P. 802; Cox v. State, 28 Tex.App. 92, 12 S.W. 493; State v. Grear, 29 Minn. 221, 13 N.W. 140; State v. Cantieny, 34 Minn. 1, 24 N.W. 458; State v. Meyer, 135 Iowa, 507, 113 N.W. 322, 124 Am. St. Rep. 291, 14 Ann. Cas. 1; Brooke v. People, 23 Colo. 375, 48 P. 502; State v. Thomas, 58 Kan. 805, 51 P. 228; State v. Gilluly, 50 Wash. 1, 96 P. 512; State v. Fetterly, 33 Wash. 599, 74 P. 810.

The prosecuting witness testified that the appellant conducted a photographic studio 'over the Empire Market on Holly street'; that the prosecuting witness lived in Bellingham on Forrest street; that while living there she went to Sunday school on Holly street; that she went to appellant's stuido, sometimes every day and sometimes less frequently; that he often gave her money, and that he was the only person in the city of Bellingham who would give her money with which to go to shows; that the offense was committed in the appellant's studio on one of these visits. The chief of police testified that he was chief of police of the city of Bellingham; that he went up to the photographic gallery of the appellant and discovered him in a compromising position with the prosecuting witness. Many other circumstances tending to show that the whole transaction occurred in the city of Bellingham also appear in the evidence. This court will take judicial notice of the fact that the city of Bellingham is in Whatcom county. Under the rule announced in the foregoing authorities, the venue as laid in the information was fully established.

It is next urged that the consummation of the crime was not established, in that there was no proof of actual penetration. The statute declares that 'any sexual penetration, however slight, is sufficient to complete sexual intercourse or carnal knowledge.' Rem. & Bal. Code, § 2437. ...