State v. Moss

• Decision Date: 06 May 1913
• Citation: 73 Wash. 430,131 P. 1132
• Parties: STATE v. MOSS.
• Court: Washington Supreme Court

131 P. 1132

73 Wash. 430

STATE v. MOSS.

Supreme Court of Washington

May 6, 1913

Department 2. Appeal from Superior Court, Benton County; O. R. Holcomb Judge.

Cecil A. Moss was convicted of adultery, and he appeals. Reversed and remanded.

Moulton & Henderson, of Kennewick, and H. J. Snively, of North Yakima, for appellant.

Linn &amp Boyle, of Prosser, for respondent.

ELLIS, J.

The appellant, a young man 23 years of age, was convicted of the crime of adultery with Florence Cornwell, a woman 35 years old and wife of one E. H. Cornwell. The information charged the commission of the offense on November 30, 1911, in Benton county, Wash. The appellant was a school-teacher in charge of the school at White Bluffs, a small, unincorporated community in Benton county. He boarded with the Cornwells, and slept in a tent near their home. There was evidence tending to prove four separate and distinct commissions of the offense. The prosecuting witness E. H. Cornwell, the first witness called on behalf of the state, testified positively as to seeing his wife and the appellant in the act of committing the offense on the evening of November 30, 1911, on a couch in the front room of the Cornwell residence. He testified to seeing the same thing again on January 11, 1912, and yet again on February 4, 1912. He made no complaint, told no one, but treated the appellant and his wife as usual until about March 8, 1912, when he claims to have charged his wife with the offense, and on March 10th he also spoke to the appellant about it. One John Bakheit testified that, in the month of June, 1911, he went to the Cornwell home, looked through the window of the tent occupied by the appellant, and there saw him and Mrs. Cornwell in the commission of the offense. Two other witnesses testified to having seen certain acts of familiarity between the parties. The court admitted in evidence a proved copy of a letter couched in somewhat endearing terms, written by Mrs. Cornwell to another man, and intrusted to the appellant for delivery. We will review no further the voluminous evidence, since the foregoing are the salient facts and form the basis of the errors assigned.

It is first contended that the court erred in admitting in evidence the copy of the letter above mentioned. It was admitted on cross-examination of Mrs. Cornwell, who was a witness for the appellant, after she had admitted writing the letter of which it was a copy, and that she had intrusted it to the appellant, unaddressed, but telling him to whom to deliver it. It was admissible on cross-examination as affecting the credibility of the witness and as tending to show a degree of intimacy between the parties. Underhill, Crim. Ev. (2d Ed.) § 381; State v. Nelson, 39 Wash. 221, 81 P. 721. The court by specific instruction limited the consideration of this letter by the jury to the testimony of this witness alone, and as only affecting her credibility. We find no prejudicial error in its admission.

The court gave the following instruction:

'No 4. You are instructed that the exact time of the commission of the alleged offense, charged in the information, is not material, but any time, if proven, on or about the time alleged in the information, and within one year next before the date of filing the information, would be sufficient as to the time thereof.'

'No. 11a. Gentlemen of the jury, you have been instructed that the state is not required to prove the exact date of the alleged crime, but the state is required to prove the exact offense charged in the information and cannot establish the commission of the act charged by the mere proof of other and similar acts; and evidence of the commission of other and similar acts is only to be considered for the purpose of showing the probability of the commission of the act charged, and if there is no evidence of the commission of the act charged, the guilt of the defendant cannot be established by proof or offered proof of other offenses than the one charged in the information.'

While there was evidence tending to prove the commission of similar offenses on three specific dates other than that charged in the information, and the appellant did not demand an election as to which act would be relied upon for a conviction, the case was tried throughout upon the theory that the state did rely for a conviction upon proof of the specific act committed as alleged in the information 'on or about November 30, 1911.' As stated in the state's brief, 'from the beginning to the conclusion of the case the state tried the defendant for the offense of adultery committed according to the information 'on or about November 30, 1911.'' Moreover, the first evidence of the commission of the offense was directed to that specific act and date, and the court in his instructions treated that specific act as the offense necessary to be proved in order to a conviction. The state did not object or except to the instruction. Under these circumstances, no demand for an election was necessary, as the state must be held to have voluntarily made its election.

The appellant claims that, in view of this admitted election by the state, the court committed prejudicial error in giving the foregoing instructions and afterwards in explaining them at the jurors' request. The evidence as to the specific commission of the offense charged in the information was that of the prosecuting witness that the act was committed on the exact date charged. There is no claim of a mistake in time nor evidence on which such a claim could be based. If the specific act charged was committed at all, it was committed on the exact date as charged. While under Rem. & Bal. Code, § 2060, the precise time at which the crime was committed need not be stated in the indictment or information, but may be placed at any time prior to the finding of the indictment or filing of the information within the time in which the action may be commenced, and while this latitude is usually allowable both in allegation and proof, still when an election is made, on proof of several acts, to rely upon an act committed at a specific time, the accused can only be convicted of the specific act constituting the offense committed at about that time and intended to be so designated and distinguished from other acts in evidence. He must be convicted, if at all, of that exact offense, not of another similar act. The question here presented is not one of...