State v. Meyerkamp

• Court: Washington Supreme Court
• Writing for the Court: MAIN, J.
• Citation: State v. Meyerkamp, 82 Wash. 607, 144 P. 942 (Wash. 1914)
• Decision Date: 15 December 1914
• Docket Number: 12270.
• Parties: STATE v. MEYERKAMP.

144 P. 942

82 Wash. 607

STATE v. MEYERKAMP.

No. 12270.

Supreme Court of Washington

December 15, 1914

Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

G. W Meyerkamp was convicted of rape, and he appeals. Affirmed.

John Mills Day, of Seattle, for appellant.

John F Murphy and Thos. J. L. Kennedy, both of Seattle, for the State.

MAIN J.

The defendant in this case was charged with the crime of rape. The information, aside from the formal parts, is as follows:

'He, said G. W. Meyerkamp, in the county of King, state of Washington, on the 13th day of September, 1913, did then and there forcibly, willfully, unlawfully, and feloniously perpetrate an act of sexual intercourse with one Mary Walls then and there a female person over the age of 10 years, not the wife of said G. W. Meyerkamp, against her will and without her consent, the resistance of the said Mary Walls to said act of sexual intercourse being then and there by the said G. W. Meyerkamp overcome by means of force and prevented by fear of immediate and great bodily harm, which she had reasonable cause to believe would be inflicted upon her by said G. W. Meyerkamp.'

To this information a demurrer was interposed, but overruled by the trial court. The cause was tried to a jury, and a verdict of guilty returned. A motion in arrest of judgment, and, in the alternative, for a new trial, being made and overruled, the appeal is prosecuted from the judgment entered upon the verdict.

The first question is whether the information charges a crime. It is claimed that the information charges that the crime was perpetrated in two ways which are inconsistent. The statute (Rem. & Bal. Code, § 2435), after defining rape, provides that:

'Every person who shall perpetrate such an act of sexual intercourse with a female of the age of ten years or upward 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 * * *'

--shall be punished as therein provided.

The resistance spoken of in the statute is not one of the elements of the crime. It is evidence of the want of consent which is an element. McClain on Criminal Law, § 440.

Where the statute provides that a crime may be committed in different ways or by different means, it is proper to charge in the information that the crime was committed in one of the ways or by one of the means specified in the statute, or in all of the ways. Even though the statute disjunctively connects the different ways or means, the information may allege them conjunctively, provided the different ways or means are not repugnant to each other. State v. Adams, 41 Wash. 552, 83 P. 1108.

In the present case the information charges that the resistance of the complaining witness was overcome by means of force, and prevented by fear of immediate and great bodily harm. The ways or means charged by which the resistance was overcome are not inconsistent or repugnant. Both may have existed; and if the evidence of the complaining witness in this case is true, they both did exist at the time the crime was perpetrated.

It is next claimed that the court erred in the scope which it allowed to the redirect examination of the prosecuting witness. On cross-examination, after asking a number of questions as to what had been said to her by other members of her family prior to the time she was taken to the county jail, where she identified the defendant, the following occurred:

'Q. Did they tell you they had caught the man who assaulted you? A. Well, they said they caught a man. Q. Didn't say it was the man who assaulted you? A. No; they said it was a man that insulted the little Goza girl. Q. Didn't tell you it was the man that assaulted you? A. No; how did they know?

'Mr. Day: I move that the answer be stricken.'

The motion to strike was resisted, and the court, without specifically ruling upon it, directed that the examination proceed. On redirect examination the prosecuting attorney, over the objection of the defendant, was permitted to inquire of the witness further as to what was said to her prior to the time that she went to the jail to make the identification. In answer to one question, she stated that she had been told that the little Goza girl had identified the man.

The general rule is that, where upon cross-examination a part of the conversation upon a particular subject-matter is brought out, the opposite party, on redirect examination, has a right to the whole thereof. State v. Regan, 8 Wash. 506,...