State v. Mertz

• Citation: 129 Wash. 420,225 P. 62
• Decision Date: 28 April 1924
• Docket Number: 18473.
• Court: United States State Supreme Court of Washington
• Parties: STATE v. MERTZ.

225 P. 62

129 Wash. 420

STATE v. MERTZ.

No. 18473.

Supreme Court of Washington

April 28, 1924

Department 1.

Appeal from Superior Court, Clarke County; Simpson, Judge.

Joseph Mertz was convicted of rape, and he appeals. Reversed and remanded.

Miller Wilkinson & Miller, of Vancouver, for appellant.

Jos. E Hall and Dale McMullen, both of Vancouver, for the State.

TOLMAN, J.

Appellant who was defendant below, appeals from a conviction upon a charge of forcible rape under subdivision 2 of section 2435 of Rem. Comp. Stat.

The complaining witness was 19 or 20 years of age, not strong mentally, with very defective eyesight--so much so that she had for several years been in attendance at the State School for the Blind during the school year. The appellant is her uncle, and she had made her home with him and his wife for about 10 years, and he had stood in the place of a father to her for the greater part of her life. The details of the actual offense charged are shown by her testimony alone and that testimony as to her resistance being forcibly overcome is meager at the best. The appellant complains that the evidence fails to show that any resistance was made, or that any force was used, and also complains of the manner and form in which this question was presented to the jury. The court gave the following instructions on this subject:

'As I have instructed you, in order to constitute the crime of rape force must be used by the male, and that force must be sufficient to overcome the will and consent of the prosecuting witness. The court cannot define the exact amount of force that is necessary, but does instruct you that before you can find the defendant guilty you must find beyond a reasonable doubt that the defendant did by force overcome her will and commit the act of sexual intercourse without her consent.

'You are instructed that you cannot find the defendant guilty in this case upon proof alone that defendant had intercourse with the complaining witness.

'To authorize a conviction of rape the jury must believe from the evidence beyond a reasonable doubt that the defendant had carnal connection with the prosecuting witness forcibly and against her will, and that she did not yield her consent during any part of the act. To constitute the crime of rape the will of the female alleged to have been outraged must have been overcome by force or violence. If she consents to sexual intercourse in the least during any part of the act, there is no such opposing will as the law requires to convict on the charge of rape.'

There are not wanting cases which hold that the female must use all of her powers of resistance and defense, but, under the particular facts of this case, and bearing in mind the physical and mental condition of the prosecuting witness, and the relations then and theretofore existing between the parties, we think the evidence was sufficient to carry the question to the jury, and this case is peculiarly one for the application of the more modern and humane rule:

'In all cases the circumstances and conditions

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