State v. Murley

• Decision Date: 12 December 1949
• Docket Number: 31015.
• Citation: 35 Wn.2d 233,212 P.2d 801
• Parties: STATE v. MURLEY.
• Court: Washington Supreme Court

212 P.2d 801

35 Wn.2d 233

STATE v. MURLEY.

No. 31015.

Supreme Court of Washington

December 12, 1949

Department 2

Rehearing Denied Jan. 20, 1950.

Edward Murley was convicted in the Superior Court for Pacific County, John I. O'Phelan, J., for taking indecent liberties with the person of a nine-year old girl, and he appealed.

The Supreme Court, Mallery, J., affirmed the judgment, and held that the evidence was sufficient to sustain the verdict.The court found no prejudicial error in the admission of testimony in improper order, and held that a challenge to the competency of the complaining witness could not be raised for the first time on appeal.The court also held that prior out-of-court complaints of the child to a police officer were correctly admitted by way of rebuttal.

Charles B. Welsh, Prosecuting Attorney, South Bend, Robert A. HannanDeputy Prosecuting Attorney, Raymond, for appellant.

Fred M Bond, South Bend, for respondent.

MALLERY Justice.

This is an appeal from a conviction of the crime of taking indecent liberties upon the person of a nine year old girl.Appellant's assignments of error challenge the court's denial of his various motions and raise questions of admissibility and sufficiency of evidence.

The assignment of error involving the sufficiency of the evidence to sustain the verdict is without merit.

Appellant seeks a review of the admissibility of certain testimony of the child's parents which the trial court admitted over the objection that it was improper rebuttal.A complete answer to this assignment is found in Hardman v Younkers,15 Wash.2d 483, 496, 131 P.2d 177, 181, 151 A.L.R. 868,

where we said:

'* * * the precise limits of rebuttal evidence is a matter resting largely in the discretion of the trial court, and the action of the court in such matters will not be reviewed except for manifest abuse resulting in prejudice to the complaining party.* * * [Citing cases.]'

Even if it be conceded that the parents' testimony was admitted in improper order, we can observe no prejudice arising out of this fact.Moreover, the damaging effect of the substance of the testimony was largely overcome on cross-examination by emphasizing appellant's denial of the act.

Appellant's challenge to the competency of the complaining witness was not asserted on trial and cannot be raised for the first time on appeal.Earles v. Bigelow,7 Wash. 581, 35 P. 390;Kroenert v. Falk,32 Wash. 180, 72 P. 1010;Morrison v. Bernot,58 Wash. 302, 306, 108 P. 772;State v. Gunn,85 Wash. 121, 147 P. 401;Nordlund v. Pearson,91 Wash. 358, 362, 157 P. 875;Fisher v. Jackson,120 Wash. 107, 109, 206 P. 929;Hudson v. Pacific Northwest Traction Co.,136 Wash. 4, 6, 238 P. 982;Denning v. Quist,181 Wash. 667, 44 P.2d 771;American Products Co. v. Villwock,7 Wash.2d 246, 277, 109 P.2d 570, 132 A.L.R. 1010.

On direct examination the complaining witness identified appellant, especially referring to his red hair.On cross-examination appellant laid a foundation for the impeachment of her credibility by prior inconsistent out-of-court statements.She was asked if she had not told appellant's mother, that the defendant wore a red hat.The witness denied that she had ever said red hat but later stated that she did not remember.

There was a three months delay in arresting appellant.On trial, he sought to impeach the complaining witness' credibility by causing the jury to infer that she and her parents were slow in complaining of the offense.The great weight of this inference is based on the theory that unexplained silence, at a time when it would have been natural for a female victim to speak, tends to cast doubt upon her credibility and supports an inference that the charge was recently fabricated.The child and her parents denied that they had delayed in complaining and asserted that they notified the police the same day.

Appellant's cross-examination of the complaining witness suggested that her parents had coached her to testify as she did.Thus an inference of recent fabrication assumed large proportions in appellant's defense.

In rebuttal the state called the officer who had interviewed the child and her parents the day following the act complained of.Over objection the court permitted him to make this statement:

'I asked her who was the man that bothered her and she said it was a red headed boy.I said what did he do to you and she took her finger and pointed at her belly (indicating) and said something about her pants, I can't recall what she said about the pants.'

This is claimed as reversible error.

When, or trial, no attempt has been made to impeach a witness' credibility, his prior out-of-court statements consistent with his oral testimony are inadmissible.State v. Manville,8 Wash. 523, 524, 36 P. 470;State v. Spisak,94 Wash. 566, 162 P. 998;State v. Braniff,105 Wash. 327, 330 et seq., 177 P. 801;State v. Lynch,176 Wash. 349, 351, 29 P.2d 393;Sweazey v. Valley Transport, Inc.,6 Wash.2d 324, 107 P.2d 567, 111 P.2d 1010, 140 A.L.R. 1 et seq.;28 R.C.L. 655 (8 Perm.Supp. 6181);41 L.R.A., N.S., 879.

Also, when a witness' credibility has been assailed by prior out-of-court statements inconsistent with his in-court testimony, prior out-of-court statements consistent with his in-court testimony are excluded.The reason for the latter rule is that, once the impeaching damage is done, it cannot be undone, irrespective of the volume and weight of the rehabilitating evidence, because the fact remains that the witness was inconsistent as to one matter and the inference remains that, once inconsistent, the witness may be inconsistent with respect to any or all matters encompassed by his testimony.To save trial time and to reduce possibilities of confusing juries, prior out-of-court statements consistent with oral testimony are held inadmissible.Sweazey v. Valley Transport, Inc.,supra, 6 Wash.2d at 332-333, 107 P.2d at page 871, citing41 L.R.A.,N.S., 857, at page 890and8 Ann.Cas. 477;4 Wigmore on Evidence, 3d Ed., § 1126.

An exception to these exclusionary rules is that in criminal trial for sex offenses the credibility of the complaining witness, irrespective of whether it is assailed or unassailed, may be supported by evidence of her timely prior out-of-court complaint.This exception stems from the feudal doctrine of hue and cry.This doctrine rests on the ground that a female naturally complains promptly of offensive sex liberties upon her person and that, on trial, an offended female complainant's omission of any showing as to whenshe first complained raises the inference that, since there is no showing that she complained timely, it is more likely that she did not complain at all the therefore that it is more likely that the liberties upon her person, if any, were not offensive and that consequently her present charge is fabricated.Thus, formerly, to overcome the inference, it became essential to the state's case-in-chief to prove affirmatively that she made timely hue and cry.3 Wigmore, op. cit., § 1042;4 Wigmore, op. cit., § 1134 et seq.;140 A.L.R. 1, at pages 174-176; 41 L.R.A.,N.S., 857, at pages 886-889;O'Neill, Previous Consistent Statements, 6 Wash.Law.Rev. 112.

Modernly the inference affects the woman's credibility, generally, and the truth of her present complaint, specifically, and consequently we permit the state to show in its case-in-chief when the woman first made a complaint consistent with the charge.

Under the ancient doctrine of hue and cry the details of the prior out-of-court complaint consistent with her present complaint...