State v. Morden

• Decision Date: 29 September 1915
• Docket Number: 12511.
• Citation: 151 P. 832,87 Wash. 465
• Court: Washington Supreme Court
• Parties: STATE v. MORDEN.

151 P. 832

87 Wash. 465

STATE v. MORDEN.

No. 12511.

Supreme Court of Washington

September 29, 1915

Department 2.Appeal from Superior Court, Pacific County; Edward H Wright, Judge.

W. C Morden was convicted of statutory rape, and he appeals.Reversed and remanded.

Lockerby & Couden and J. J. Brumbach, all of South Bend, for appellant.

John I O'Phelan, of Raymond, and G. Dolph Barnett, M. M. Richardson, H. W. B. Hewen, and Herman Murray, all of South Bend, for the State.

ELLIS J.

The defendant was prosecuted for the crime of statutory rape under an information the charging part of which is as follows:

'That the said W. C. Morden, in the county of Pacific, state of Washington, on or about the 30th day of September, 1913, did, then and there being, unlawfully and feloniously assault and carnally know one Ruth Ford, an unmarried female child under the age of 18 years, to wit, of the age of 15 years, of previously chaste character, and not the wife of the said W. C. Morden, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Washington.'

We shall not attempt even an epitome of the evidence, which was voluminous.We shall merely refer to it so far as necessary in the course of our discussion of the several claims of error assigned.The jury returned a verdict finding the defendant guilty of the crime as charged in the information.The defendant moved for a directed verdict of not guilty at the close of the state's evidence, and renewed the motion at the close of all the evidence.Both of these motions were overruled.After the return of the verdict, the defendant moved for a new trial, which was denied.From a judgment of conviction, and sentence, he has appealed.

The many assignments of error are presented in the briefs under a number of heads, which we shall discuss in what seems to us their logical sequence.

1.It is first contended that one or the other of the motions for a directed verdict should have been granted, for the reason that there was not sufficient corroboration of the testimony of the prosecuting witness as to the commission of the crime.In this connection it may be noted that the appellant requested an instruction to the effect that, where in such a casethe defendant denies the crime, the jury should not convict on the testimony of the prosecuting witness alone, unless it is corroborated in some particulars at least by other evidence.It is admitted that since the passage of the act of 1913(Session Laws of 1913, page 298), repealing section 2443, Rem. & Bal.Code, which repealing act was passed prior to the time of the commission of the offense as charged in the information, there has been no statute in this state requiring corroboration in such cases.It is urged, however, that under the common law the uncorroborated testimony of the prosecuting witness is insufficient to warrant a conviction in cases where her statements are denied by the defendant, and where such denial is itself supported by corroborative evidence.It is argued that the repeal of the statute expressly requiring corroboration in all cases did not repeal this rule of the common law.A number of authorities from other jurisdictions tending to support the appellant's view as to the common-law rule are cited.

The question, however, is not an open one in this state.Prior to the passage of the act of 1907(Rem. & Bal. Code, § 2155), requiring corroboration in such cases, this court had repeatedly held that corroboration of the prosecuting witness was unnecessary.State v. Roller,30 Wash. 692, 71 P. 718;State v. Fetterly,33 Wash. 599, 74 P. 810;State v. Patchen,37 Wash. 24, 79 P. 479;State v. Mobley,44 Wash. 549, 87 P. 815;State v. Conlin,45 Wash. 478, 88 P. 932;State v. Aker,54 Wash. 342, 103 P. 420, 18 Ann. Cas. 972.While it is true that in nearly all of the above-cited cases there was some slight evidence tending to corroborate the prosecuting witness, it is also true that the decision in each case was rested distinctly upon the ground that no corroboration was necessary in any case, and that the question was one for the jury upon a conflict of evidence.This is pointed out in State v. Conlin, supra, as follows:

'It is argued that the story of the prosecuting witness is improbable and uncorroborated.Her testimony was, however, direct and positive as to all the essential elements of the offense charged, and, if true, it is sufficient to convict the appellant.In such a case'this court cannot, without a usurpation of authority, hold that the evidence is insufficient to warrant a conviction.'State v. Fetterly,33 Wash. 599, 74 P. 810.Within the rule stated in the above case, and also in State v. Roller,30 Wash. 692, 71 P. 718, it is not necessary that there shall be actual corroboration of the prosecutrix in such cases, since there is no statute requiring it.While it is true that certain corroborating circumstances were found in each of those cases, yet the actual rule there declared by the court is such that the uncorroborated testimony of the prosecutrix is sufficient if the jury find it to be true.Of its truth the jurors shall be the judges, and they shall apply the usual, necessary, and proper tests to determine whether it is true or false.'

It is true that in none of the foregoing decisions is there any direct statement that at common law corroboration was unnecessary.The distinct holding, however, found in all of them, that in the absence of a statute so requiring corroboration is unnecessary, is tantamount to such holding, since it carries the necessary implication that at common law no such corroboration was required.It may he remarked in passing that in this case also there were some slight circumstances in evidence tending to corroborate the prosecuting witness.We prefer, however, to place our decision unequivocally upon the authority of the foregoing decisions of the effect that at common law corroboration was unnecessary.These decisions were undoubtedly the occasion of the passage of the statute requiring corroboration.It is equally plain that by repealing that statutethe Legislature intended to restore the law to its former status.

2.For some days, both before and after the date upon which it was charged the offense was committed, the prosecuting witness had been working for the appellant picking cranberries.She had testified that the crime was committed in a barn on appellant's premises on the 30th day of September, 1913.At the time of his arrest the appellant owed her a small balance for her services.She testified that shortly after the arrest she sent him an itemized statement of this balance.On cross-examination the appellant admitted receiving a statement, but could not say definitely that the statement offered was a correct copy of that received.He admitted, however, that the amount he paid her in response to the statement was the same as the amount of the statement lacking a few cents.The appellant's principal line of defense as developed by his evidence was that the prosecuting witness did not work for him on the 30th day of September, 1913, and was not present on his premises on that day.At the trial a copy of this statement was admitted in evidence over the appellant's objection that it was incompetent, irrelevant, immaterial, improper rebuttal, and not the best evidence.The purpose of the state in introducing the statement was to show that the prosecuting witness had charged him for labor on that day and that he had paid substantially the amount so charged.Since there was no conflict in the evidence as to when the prosecuting witness commenced work, or when she finally ceased work for the appellant, it is obvious that the statement had some tendency to show that she was present on the appellant's premises on the day when it was charged the offense was committed.The objection to the relevancy and materiality of the statement was therefore untenable.

This seems to be conceded, but it is now strenuously argued that the court committed error in receiving secondary evidence of the contents of this statement, and that the copy was inadmissible without notice first having been given to the appellant to produce the original.Under our own decisions this claim is also untenable.In State v. McCauley,17 Wash. 88, 49 P. 221, 51 P. 382, this exact contention was made touching the admissibility of evidence concerning certain checks which had been traced to the defendant's possession.This court said:

'It was beyond the power of the court to enforce such a demand, for the simple reason that the defendant could not be compelled to furnish evidence against himself; and while upon this question of giving notice to a defendant in a criminal case to produce papers or other exhibits there are conflicting decisions, and it is probably true that a majority of the cases require that such notice be given, we are unwilling to adopt it as an invariable rule.'

In the very recent case of State v. Jackson,83 Wash. 514, 145

Pac. 470, where the same question was under discussion, this court, following the McCauley Case, held that the right of the state to introduce secondary evidence in such a case does not depend upon a notice to produce documents possessed by the defendant, and which are believed to be incriminating, for the reason that it is beyond the power of the court to enforce the demand.As pointed out in the McCauley Case, the correct rule as adopted by this court is that stated in Rice on Evidence, vol. 3, page 45, as follows:

'If the indictment itself alleges that the accused is the custodian of the document needed in evidence, or where the evidence in the case shows it to be in his possession or in that of an

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