State v. Lane, 31243.

• Decision Date: 20 April 1950
• Docket Number: 31243.
• Citation: 36 Wn.2d 227,217 P.2d 322
• Parties: STATE, v. LANE.
• Court: Washington Supreme Court

217 P.2d 322

36 Wn.2d 227

STATE, v. LANE.

No. 31243.

Supreme Court of Washington.

April 20, 1950

Department 1.

Rehearing Granted May 25, 1950.

Deane W Parker, William S. Lewis, Seattle, for appellant.

Charles O Carroll, John C. Vertrees, Seattle, for respondent.

BEALS, Justice.

The prosecuting attorney for King county, by count I of an information filed July 7, 1949, charged the defendant, Francis E. Lane, with the crime of forcible rape, committed on or about June 4 1949, upon Mrs. _____. By count II of the information, the defendant was charged with the crime of burglary in the second degree, committed at the same time and place referred to in count I of the information, by unlawfully and feloniously breaking and entering the dwelling of Mrs. _____ in Seattle, King county, Washington.

July 12, 1949, the defendant was arraigned, and, having no counsel, the court appointed an attorney to represent him and allowed the defendant seven days to enter his plea. July 19th following the defendant, being represented by counsel, was brought Before the court and entered his plea of not guilty as to both counts of the information. In addition to the plea of not guilty, the defendant, by his counsel, filed a written plea of not guilty because of mental irresponsibility, stating that 'such mental irresponsibility still exists.'

July 23rd following, the cause was assigned for trial for September 12, 1949, and, on that day, the case was called Before a department of the superior court, the defendant being represented by the counsel appointed by the court and by associate counsel.

Both the state and the defendant having announced that they were ready for trial, a jury was impaneled and sworn, and, after a statement by the court to the jury and the opening statement of the prosecution, the jury withdrew. Defendant's counsel then advised the court that the information which had been served upon the defendant alleged that the offenses therein referred to had been committed June 4, 1949 (evidently an error, as the offenses were committed July 4, 1949), and that count II of the information, charging burglary, was defective in that the information did not allege that the breaking and entering was with felonious intent.

Counsel for the prosecution then stated that, by leave of court, an amended information had been filed July 8, 1949, the leave to file having been granted in the absence of the defendant, further stating that a motion by the defendant for a continuance would not be opposed. The court remarked: 'The defendant is entitled to a continuance if he is surprised.'

Defendant's counsel stated that the defendant was ready to go to trial upon the information which had been served upon him, and that, although the amended information had been filed prior to his arraignment, the only service upon the defendant had been made by delivering to him a copy of the original information. This statement was not disputed by the prosecuting attorney.

After considerable discussion between counsel for the respective parties and the court, the defendant, on motion of the prosecution and in the absence of the jury, was arraigned upon the amended information, pleaded not guilty, and the trial then continued. Upon returning to the courtroom, the jury was not informed concerning the second arraignment and the entry of the plea, nor were the jurors resworn.

In due time, the jury returned a verdict finding the defendant 'guilty of the crime of Rape, as charged in Count I of the Information herein,' and a similar verdict finding the defendant guilty of burglary in the second degree, as charged in count II of the information.

The defendant interposed a motion for arrest of judgment or, in the alternative, for a new trial. These motions having been denied, a judgment of guilty was entered pursuant to the jury's verdicts, and the court imposed a sentence of twenty years upon count I and fifteen years upon count II, the sentences to run concurrently.

From this judgment and sentence, the defendant has appealed.

In his brief Before this court, the appellant makes the following assignment of errors:

'(1) That the jury was not sworn to try the issue between the State and the defendant as to the crimes charged in the amended information.

'(2) That the bailiff in charge of the jury was not sworn to perform the duties of his office.

'(3) That the following statement of the prosecution at the close of its closing argument, viz.: 'And I certainly want to say that it would be a shock to me and to anybody who knows of this case to not have a verdict of guilty brought in by you. I thank you.' (St. 154) was misconduct and was prejudical to the right of the defendant to have a fair and impartial trial.

'(4) That the following statement of the prosecution directed to counsel for defendant, during the trial of the cause, viz.: 'After all, this is a brutal rape case,' (St. 96) was misconduct and prejudicial to the right of the defendant to have a fair and impartial trial.

'(5) That the statements mentioned in paragraphs 3 and 4 above, taken together, were misconduct and were prejudicial to the right of the defendant to have a fair and impartial trial.

'(6) That the court erred in giving instruction No. 5 (St. 141) to which an exception was duly made (St. 156).

'(7) That the written verdict of the jury (Tr. 36) should be set aside as it found the defendant guilty of the crimes charged in the information, whereas the defendant was tried for the crimes charged in the amended information which changed the date of the crimes charged and which also remedied the error in the second count of the original information which said second count did not charge a crime.'

We find it necessary to discuss only appellant's assignment of error No. 6, as the error referred to in that assignment requires reversal of the judgment appealed from and the granting of a new trial. The matters referred to in appellant's other assignments will, therefore, be disregarded.

The crime of rape is defined in Rem.Rev.Stat. § 2435, the pertinent portions of that section reading as follows:

'Rape is an act of sexual intercourse with a female not the wife of the perpetrator committed against her will and without her consent. Every person who shall perpetrate such an act of sexual intercourse with a female of the age of ten years or upwards not his wife; * * *

'(2) When her resistance is forcibly overcome; or

'(3) When her resistance is prevented by fear of immediate and great bodily harm which she has reasonable cause to believe will be inflicted upon her; or * * *'.

The court's instruction No. 5 reads as follows: 'Rape is an act of sexual intercourse with a female not the wife of the perpetrator, committed against her will and without her consent (1) when her resistance is forcibly overcome, or (2) when her resistance is prevented by fear of immediate or great bodily harm which she has reasonable cause to believe will be inflicted upon her.'

The appellant preserved the following exception to this instruction: 'The defendant also excepts to the Court's Instruction No. 5 in that, briefly, Instruction No. 5 sets out a definition of rape which includes the first two acts which constitute rape in the statute, Rem.Rev.Stat. 2435. The Court has set forth the first two subdivisions. Now the amended information of the state alleges forcible rape in terms of the statute, and there is no allegation in the state's amended information which would cover the second subdivision of Rem.Rev.Stat. 2435. The defendant's exception against Instruction No. 5 is based upon a decision in the case of State v. Severns, found in 13 Wash.2d page 542 . In that case the facts were the same as in this case as regards the allegations of the state's information, and the fact the Court there also included in its instructions the second subdivision of the statute on rape, namely, Section 2435 of Rem.Rev.Stat.'

The fact that appellant's counsel, in excepting to instruction No. 5, referred to the two subdivisions of Rem.Rev.Stat. § 2435, which were included by the court in the instruction, as the 'first two subdivisions' of that section, instead of the second and third subdivisions, is immaterial.

From the evidence, it appeared that, prior to the commission of the act complained of, Mrs. _____ had suffered a broken leg and, July 4, 1949, was able to walk only with the aid of crutches.

In connection with appellant's criticism of the court's instruction No. 5, it may be noted that, on direct examination of the prosecutrix by counsel for the state and after some preliminary testimony concerning her resistance, the witness stated: '* * * And I tried to kick him with this leg, but when I did, every time I did it, he bounced my leg back on the floor. And then I thought, 'Well, he's just going to kill me' right there. So I just, I had to give up.'

Again, in answer to a question by the prosecuting attorney, 'Were you in fear of the defendant?' the witness said, 'Yes, I was.'

Counsel for the state argue that, in view of the court's instruction No 2, it should not be held that instruction No. 5 constitutes reversible error. By its instruction No. 2, the court stated that, in order to find the defendant guilty of the crime of rape, as charged in count I of the amended information, the state must have proved,...