State v. Leach
Decision Date | 26 June 1950 |
Docket Number | 31296. |
Court | Washington Supreme Court |
Parties | STATE, v. LEACH. |
Department 1.
Ray R. Greenwood, Frank A. Shiers, Port Orchard, for appellant.
James Munro, Roy A. Holland, Bremerton, for respondent.
Appellant was charged with the crime of carnally knowing his seven-year-old daughter. Upon the trial the court withdrew from the consideration of the jury the charge of carnal knowledge and submitted to them the question of appellant's guilt or innocence of the crime of attempted carnal knowledge. The jury found appellant guilty of the latter charge and he appeals from the judgment and sentence resulting.
The seven-year-old girl testified that her mother was dead; that she lived in the housing project at Bremerton with her father and eleven-year-old brother, that sometimes she slept with her father. With regard to the particular transaction she testified:
'Q. Well, along about the first part or the middle of March, did your father sleep with the on some of these occasions? A. Yes, I think so. * * *
'Q. Genie, will you tell the jury just what your father did? Could you do that? A. Well, he'd lay on me and bother me and he'd just--oh, he'd just bother me--and I went to Joey and he went over and got a housekeeper and she came over and I went to her house and stayed.
'Q. And when he bothered you--would that be after he came to bed at night? A. Yes.
'Q. And could you tell the jury a little more in detail just how he bothered you?
A. Well, he'd bother my parts.
'Q. And how would he bother your private parts? A. He would lay on them.
'Q. He would lay on you? A. Yes.
'Q. And did that hurt you? A. Yes, it did.
'Q. And on this one occasion, would he have any clothes on when he'd do that? A. Just what he slept in.
'Q. What he slept in. What did he sleep in, do you recall? A. His underwear.
'Q. And would he press his body against yours? A. Yes.
'Q. And on this one occasion, did he hurt you? A. On one night, he did,--on one night.
'Q. One night he did. And that is the night you went and got Joey? A. Yes.
'Q. Were you crying, then? A. Yes.
'Q. Because he had hurt you? A. Yes.
'Q. And were you sore and was it hard for you to walk?
'Mr. Greenwood Now, just a moment. Wait a minute,----
'The Court No,--objection sustained.
'Q. Would you tell the jury how you felt after he laid on you? A. Well, I was sick and I threw up and that is the way I went to school and I threw up, then.
'Q. Did he say anything about who was to be the momma in the house? A. Yes.
'Q. What did he say?
'Mr. Greenwood: I think Your Honor, that is leading.
'The Court: Overruled. She may answer.
'A. He said I should be the mother.
Q. That you'd have to be the mother. Did he press any particular part of him against you? A. Yes.
'Q. What was it--his private parts?
'Mr. Greenwood: Just a minute! Counsel, please! Now, he has told her what to say.
'The Court: Yes. Don't do that.
'Mr. Greenwood: You ought to know better.
'The Court: Don't lead. 'Mr. Greenwood: This is serious.
'The Court: This is a very, very serious thing. What part?
'The Witness: His private parts.
'Mr. Greenwood: Well, she was told.
Mr. Munro: I believe you may question the witness.
'Cross Examination: By Mr. Greenwood:
'
'
'
'
'The Court: What?
'The Witness: I knew that Before .
'
' A. No.
'Q. You didn't tell it to me, did you? A. Yes.
'Q. That he put his private parts against you? A. Yes.
'Q. Didn't you just say he laid on you? A. Yes, he did.
'Q. All right. But your clothes were always on and his clothes were always on, is that right? A. Yes. Mr. Greenwood: That is all.
'Redirect Examination: By Mr. Munro:
'You never have seen me Before today, have you? A. No.
'Q. You told Mrs. Govro that in March, didn't you? A. Yes. 'Q. And you told her then that he put his private parts against yours, didn't you? A. Yes.
'Mr. Munro: That is all.
'Mr. Greenwood: That is all.'
At the close of the testimony counsel for appellant made a motion to dismiss for lack of evidence, which motion was denied.
The following statutes are necessary for our consideration:
Rem.Supp.1943, § 2436. 'Every male person who shall carnally know and abuse any female child under the age of eighteen years, not his wife, and every female person who shall have sexual intercourse with any male child under the age of eighteen years, not her husband, shall be punished as follows:
'(1) When such an act is committed upon a child under the age of ten (10) years, by imprisonment in the state penitentiary for life; * * *.'
Rem.Rev.Stat. § 2437. 'Any sexual penetration, however slight, is sufficient to complete sexual intercourse or carnal knowledge.'
Rem.Rev.Stat. § 2264. 'An act done with intent to commit a crime, and tending but failing to accomplish it, is an attempt to commit that crime; * * *.'
Rem.Rev.Stat. (Sup), § 2442(2). 'Every person who shall take any indecent liberties with or on the person of any female under the age of fifteen years, or make any indecent, or obscene exposure of his person, or of the person of another, whether with or without his or her consent, shall be guilty of a felony, and shall be punished by imprisonment in the state penitentiary for not more than twenty years, or by imprisonment in the county jail for not more than one year.'
The acts testified to did not constitute the crime of carnal knowledge. Our sole inquiry, therefore, is whether or not the facts established the crime of attempted carnal knowledge. In State v. Cass, 146 Wash. 585, 264 P. 7, we stated that an attempt to commit a crime consisted of two elements: first, a criminal intent; and second, some form of overt act. A more comprehensive definition of the elements of an attempt is set forth in 14 Am.Jur. 813, Criminal Law, § 65:
In 22 C.J.S., Criminal Law, § 75, p. 139, it is stated: * * *.' See also, 1 Wharton's Criminal Law (12th ed.) 279, Attempts, § 212; and 1 Bishop on Criminal Law (9th ed.) 518, Attempts, § 728.
While it is essential that the overt act must be coupled with...
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