State v. Newell

• Decision Date: 13 June 1928
• Docket Number: 21198.
• Citation: 268 P. 130,148 Wash. 82
• Parties: STATE v. NEWELL.
• Court: Washington Supreme Court

268 P. 130

148 Wash. 82

STATE v. NEWELL.

No. 21198.

Supreme Court of Washington

June 13, 1928

Department 1.

Appeal from Superior Court, Lewis County; H. E. McKinney, Judge.

Ernest Newell was convicted of carnally knowing and abusing a female child of the age of 10 years, and he appeals. Affirmed.

Rice &amp Stinson, of Chehalis, for appellant.

William H. Grimm, of Centralia, and Russell L. Ponder, of Chehalis for the State.

MITCHELL J.

Ernest Newell was prosecuted on an information charging him with the crime of carnally knowing and abusing a female child of the age of 10 years, and was found guilty by a jury. His motion for a new trial was denied, and he has appealed from a judgment on the verdict.

First it is claimed the evidence was insufficient to justify the verdict. We refrain from setting out in detail the revolting evidence that fully justified the conviction. The clear and positive testimony of the girl, together with corroborating circumstances, were entirely sufficient for that purpose.

By a course of conduct on the part of the appellant, from the girl's earliest recollection, he had by wiles and taking undue liberties with her person at his home, where she spent much of her time, more or less disrupted both her sense of shame and fear of him, and it seems that after his act of carnal knowledge of her she made no complaint immediately nor within a fairly reasonable time to her mother or any one else. The first information she gave was some months afterwards and just before his arrest, of which delay the court instructed the jury, in effect, that it was a matter to be considered in determining the guilt or innocence of the appellant. But appellant requested the court to give an instruction as follows:

'You are instructed that, in considering the testimony of the prosecuting witness, the fact whether the evidence discloses whether or not there was any injury to her person or to her clothing, and the fact whether she made complaint as soon as practicable and without unreasonable delay, is to be considered. You have a right to consider in weighing her testimony that it is natural that, when a crime of this nature has been committed upon a female under the age of 18 years, she will make immediate complaint to her mother, if the opportunity offers, or to some other confidential friend to whom she can make it. You have a right to consider, and it is your duty to consider in weighing this testimony, the surrounding circumstances, whether or not there were people in the house who could have heard her, had she made an outcry, and whether or not she did make an outcry. If the defendant accomplished this assault, he would be guilty, irrespective of whether or not the prosecutrix consented, if you find that she was under the age of 18 years; and these matters which I have called to your attention as proper circumstances to be considered in weighing the testimony of the prosecutrix as to the manner in which the assault is alleged to have been committed, and as to whether or not it was in fact committed.'

The court refused to give the instruction and error is claimed on account of the refusal. Counsel for appellant rely on State v. Griffin, 43 Wash. 591, 86 P. 951, 11 Ann. Cas. 95, in which the instruction requested is a copy of one set out in that case which it was said should have been given in that case. But that rule is not applicable here. That was a case of a 15 year old girl who claimed to have been raped by force and against her will. In such cases it is reasonable to suppose that the person assaulted would immediately thereafter make hue and cry, testimony of which is admissible as tending to credit her testimony on the witness stand of the forcible rape, while the absence of such complaint within a reasonable time would tend to discredit her testimony of that kind of rape. Here, however, the prosecuting witness was nothing but a child. She was not ravished, nor was it contended that she was. She was seduced, enticed, lead, or rather cultivated, handled, and used by one who had overcome or prevented any sense of fear on her part of him. In the Griffin Case the court said:

'If this had been a case of voluntary intercourse on the part of the prosecuting witness, it is difficult to understand how the question of complaint of the outrage could enter into the case, as that human instinct which impels the woman

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