State v. Linton, 30893.
| Decision Date | 03 April 1950 |
| Docket Number | 30893. |
| Citation | 36 Wn.2d 67,216 P.2d 761 |
| Parties | STATE, v. LINTON. |
| Court | Washington Supreme Court |
Rehearing Denied May 12, 1950. Robertson and Smith, Spokane, George N Apostol, Seattle, for appellant.
John Hancock, Okanogan, for respondent.
This is an appeal from a conviction on a two-count information.
Count I was based upon Rem.Rev.Stat, § 2436, and charged the defendant with carnally knowing and abusing a female child under the age of eighteen years, to wit, of the age of seventeen years not then his wife.
Count II read as follows:
'And the Prosecuting Attorney aforesaid charges the defendant Ralph Linton, in Count II of this amended Information and as a part of the same act and transaction as set out in Count I of this Amended Information and connected therewith, with the crime of assault in the second degree, committed as follows to-wit:
'That he, the said Ralph Linton, in the County of Okanogan, State of Washington, on or about the 10th day of August, 1948, willfully and unlawfully did make an assault upon one ________, a female child under the age of 18 years, not the wife of said defendant, with intent then and there to commit a felony, to-wit: The crime of carnal knowledge upon the person of said ________, and said Ralph Linton did willfully and unlawfully inflict grievous bodily harm upon the person of said ________, a human being, by then and there striking and hitting the said ________ with his hands and fists, all contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Washington.'
We will not fully set out the evidence in the case. We may say, however, that it would have sustained a verdict of guilty if the defendant had been charged under § 2435 of the code, since it sufficiently established that the complaining witness made a most vigorous resistance, which was forcibly overcome.
However, some quotation from the evidence is necessary to establish a background for discussion of certain questions raised by the appellant's assignments of error.
It was charged that the alleged crime was committed on August 10, 1948. The complaining witness testified that, having been born on February 3, 1931, she was seventeen years and about six months old at the time of the alleged assault. That she was born on February 3, 1931, was corroborated by the introduction of state's exhibit No. 1, a certified copy of the registry of births of the county of Roseau, state of Minnesota. She further testified that, on the evening of August 10, 1948, she went to the bus depot at Omak, Washington, to meet her brother, and, finding that the bus on which he was expected to arrive would be an hour late, decided to go to the home of a girl friend, rather than to wait at the station; and that, while she was en route to her girl friend's house, the defendant, Linton, in an automobile, pulled over to the curb and called her name, and she went over to the car.
'
This side road, locally called the 'corkscrew grade,' is a lonely and little traveled road leading into the Colville Indian Reservation. The complaining witness further testified that, after driving up this road for a little distance, defendant made a U-turn and parked the car, headed in the direction from which they had come.
According to her further explicit testimony, the defendant then removed portions of her clothing and consummated the act which constituted carnal knowledge, as defined in Rem.Rev.Stat. § 2437.
The complaining witness further testified:
'
In giving his version of the matter, the defendant, Linton, as would be expected, denied a great deal of the testimony given by the prosecuting witness. For example, while she testified that he called to her from his car and she went over to him and he asked her if she would like to take a drive with him, he testified that she came over to his car and asked him to take her to Okanogan. She testified that, after she got into the car, he produced a bottle of whiskey, which she refused. He testified that she took two drinks of whiskey on the drive from Omak to Okanogan.
In addition to a transcription of Linton's testimony given at the trial, we have an exhibit, called a statement, which opens with the following:
'I, Ralph Linton, make the following statement and confession of my own free will and accord, without threat of any kind being made to me or without any promise of immunity being made to me.'
We quote the following excerpts from the body of the instrument:
* * *
The statement closes as follows:
'I have read the above and foregoing statement, and the statements contained therein are true.
'Dated at Okanogan, Washington, this 11th day of August, 1948.
[Signed] Ralph Linton
Witnesses:
Lester H. Moss
John Hancock'
The complaining witness testified that, at or about the time, or immediately after, the defendant accomplished his purpose, she saw the lights of an approaching car and began screaming; whereupon the defendant got out of the car and pulled up his trousers, and she got out of the car and grabbed her jeans and panties, and ran over to the approaching car to ask for help. That she did so scream and run over to the car was admitted by the appellant. However, he testified that at that time her jeans and panties were pulled up above her knees, which was consistent with his other testimony that she had left the car to answer a call of nature. Testimony of the complaining witness that she was carrying her jeans and panties was corroborated by the occupants of that car.
Charles Hassenphlug and wife testified that they lived on a farm about eighteen miles from Okanogan on the Indian reservation, and on August 10, 1948, that date being fixed in their minds because August 10 was Hassenphlug's birthday, they drove up the 'corkscrew grade' about eleven p.m., en route home after having had a birthday dinner with their children in Okanogan. Mr. Hassenphlug testified that, as they rounded a curve coming up the grade, they saw a car ahead of them, parked alongside the road. As appellant contends that a great deal of his testimony was inadmissible, we find it necessary to quote a considerable portion thereof.
'A. * * * All at once we noticed the right door was swinging back and forth and Mamma says, 'There must be some trouble.' I decided maybe it was just a party of some kind and was going to go on an just as we got on by we heard some sort of scream and so I stopped, and Mamma says, 'There is somebody in that car hurt.' There was a piece of floor mat hanging there and she thought there was somebody underneath the car so I stopped. At that time she took the flashlight and about that time we heard another party...
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...in nature.” State v. Salinas, 87 Wash.2d 112, 121, 549 P.2d 712 (1976) (internal quotations omitted) (citing State v. Linton, 36 Wash.2d 67, 95–96, 216 P.2d 761 (1950)). Current law defines “substantial bodily harm” as bodily injury which involves a temporary but substantial disfigurement, ......
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