State v. Marselle

• Decision Date: 27 July 1906
• Citation: 86 P. 586,43 Wash. 273
• Parties: STATE v. MARSELLE.
• Court: Washington Supreme Court

86 P. 586

43 Wash. 273

STATE v. MARSELLE.

Supreme Court of Washington

July 27, 1906

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Joe Marselle was convicted of an assault with intent to commit rape, and he appeals. Reversed.

Morris Southard & Shipley, for appellant.

Kenneth Mackintosh and John F. Miller, for the State.

HADLEY J.

The defendant was charged with the crime of rape by having unlawful carnal knowledge of a female child under the age of 18 years. The cause was tried before a jury and a verdict was returned finding the defendant guilty of assault with intent to commit the crime of rape. He was sentenced to two years' imprisonment in the penitentiary and he has appealed from the judgment.

It is assigned that the court erred in overruling objections interposed by appellant to various questions propounded by the prosecuting attorney to the prosecuting witness, relative to transactions between the appellant and a girl whose name is Mattie Morton. Objections were also urged to similar questions propounded to the said Mattie Morton, who also testified as a witness. Over said objections said witnesses were required to testify concerning conversations and transactions between the appellant and Mattie Morton which were not connected with the relations charged to have existed between the complaining witness and appellant. This testimony related to an alleged arrangement between appellant and the Morton girl by which they were to be married; also to an alleged promise and offer of appellant to give Mattie Morton a diamond ring and some money as an inducement to illicit intercourse which he sought with her. The only purpose such testimony could have served before the jury was to indicate to them that appellant might have committed another crime and that his character was such that he might have sought and obtained similar relations with the complaining witness. We think the evidence was both incompetent and highly prejudicial, and that it was error to permit it to go to the jury. The circumstances at the trial were unusual. The prosecuting attorney was greatly surprised by the testimony of the complaining witness, who refused to testify that improper relations had ever been sustained between her and appellant, and positively stated that such was not the case. She admitted that she had theretofore made contrary statements to the prosecuting attorney, but declared that she 'lied' when she did so, and that her statements made upon the witness stand were the truth. She explained that her motive for lying in the first instance was to prevent implicating another young man whom she subsequently married, and who was her husband at the time of the trial. She said she was determined that he should not be sent to the penitentiary, and, as the prosecuting attorney had threatened that he would cause a physician to ascertain that she had sustained illicit relations with some one, she therefore determined to falsely charge that appellant was the guilty one. Under such circumstances it was highly important that no incompetent testimony should go to the jury. In Stevens v. People, 158 Ill. 111, 41 N.E. 856, the court observed as follows: 'Long ago it was said by Lord Hale in regard to the charge of such a crime, 'that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.' 1 Hale, 635. Accordingly, the testimony of the prosecuting witness must be scrutinized with caution, and, where the defendant denies the crime, her evidence should be corroborated. * * * Examined in the light of these principles, the evidence in this record cannot be said to so clearly preponderate in favor of the prosecution as to lead us to the conclusion, that no harm was done by the erroneous admission of the evidence hereinafter referred to.' Again, it was held in Gifford v. The People, 148 Ill. 173, 35 N.E. 754, that where the evidence in such a case is conflicting and the case is close upon the facts, no incompetent testimony should be permitted to go to the jury which might improperly influence their verdict. The evidence was incompetent and prejudicial within the following decisions of this court: State v. Carpenter, 32 Wash. 254, 73 P. 357; State v. Eder, 36 Wash. 482, 78 P. 1023.

It is next contended that the court erred in admitting in evidence the testimony of police officers Peer and Keefe as to certain alleged statements which they testified were made by appellant. The objection to the admission of this testimony was on the ground that there had been a failure...