State v. Mobley

• Decision Date: 05 December 1906
• Citation: 87 P. 815,44 Wash. 549
• Parties: STATE v. MOBLEY.
• Court: Washington Supreme Court

87 P. 815

44 Wash. 549

STATE v. MOBLEY.

Supreme Court of Washington

December 5, 1906

Appeal from Superior Court, Yakima County; H. B. Rigg, Judge.

Max A Mobley was convicted of rape, and appeals. Reversed and remanded.

E. B. Preble and Ira P. Englehart, for appellant.

CROW J.

The defendant Max A. Mobley has appealed to this court from the judgment and sentence of the superior court of Yakima county entered upon his conviction of the crime of rape, committed upon the person of one Lydia G. Palmer, a female child under the age of 18 years.

The particular act upon which the state elected to rely for conviction was alleged to have been committed on January 15 1905, at which time the prosecuting witness was something over 15 years of age. She testified, that three several acts of sexual intercourse took place between the appellant and herself. That the first occurred shortly after Christmas in 1904. That the last act, being the one upon which the state elected to rely for conviction, occurred about January 15 1905. That she lived at the house of appellant from the fall of 1904, to February, 1905. That appellant's wife, by soliciting the prosecutrix to have intercourse with appellant, aided and abetted him in the commission of the crime with which he is charged, and was present with appellant and herself in a room at their home on each of the three occasions above mentioned. That by reason of her relations with the appellant she was pregnant at the date of the trial, which occurred on October 9, 1905, and that she had never sustained sexual relations with any man other than the appellant, and never with him except on the three occasions named. She failed to state whether the appellant's acts were accomplished by force, or whether she actually consented to the same, although legally incapable of giving consent. Her evidence, which was emphatically denied by the appellant and his wife, was without any corroboration other than her condition of pregnancy to which she testified, and which, if it actually existed, must have been apparent to the jury.

The appellant has made numerous assignments of error, but we will only discuss those which we regard as of controlling importance. He contends that the trial court erred in admitting, over his objection, evidence of acts of intercourse between the prosecuting witness and himself subsequent to the first act to which she had previously testified, and also in charging the jury that the state had elected to rely upon the third act for conviction. The substance of this objection is that the state should not have been permitted to introduce evidence of any acts of intercourse other than the single one upon which it relied for conviction. This contention is without merit, as shown by previous holdings of this court. State v. Wood, 33 Wash. 290, 74 P. 380; State v. Fetterly, 33 Wash. 599, 74 P. 810; v. Osborne, 39 Wash. 548, 81 P. 1096.

The undisputed evidence shows that during all the time the prosecutrix lived at the home of appellant, his family and household consisted of himself, his wife, their two small children, the father and brother of his wife, and a young lady, a Miss McArdle. The appellant produced William Nichol and Charles Nichol, the father and brother of Mrs. Mobley and also Miss McArdle, as witnesses, and in substance asked each of them to state to the jury whether or not the prosecuting witness, Lydia G. Palmer, during the time she and the witnesses were all residing at appelllant's house, was in the almost constant habit of being out alone late at nights and returning at any time from midnight to 4 o'clock in the morning. Upon objections interposed by the state, the witnesses were not permitted to answer these questions. Thereupon the appellant by his attorney attempted to state what he offered to prove by these witnesses. But the trial court interrupted him, with the statement that his offer would not be permitted. Upon these rulings the appellant has assigned error. In...