State v. Oberg

• Decision Date: 21 August 1936
• Docket Number: 25756.
• Citation: 187 Wash. 429,60 P.2d 66
• Parties: STATE v. OBERG.
• Court: Washington Supreme Court

60 P.2d 66

187 Wash. 429

STATE v. OBERG.

No. 25756.

Supreme Court of Washington

August 21, 1936

Department 1.

Appeal from Superior Court, King County; Kazis Kay, Judge.

John Oberg was convicted of sodomy, and he appeals.

Affirmed.

Joseph H. Griffin, of Seattle, for appellant.

Warren G. Magnuson and Carl R. Heussy, both of Seattle, for the State.

STEINERT Justice.

The prosecuting attorney of King county filed an information containing three separate counts, each of which charged the defendant with the crime of sodomy. Three separate and distinct offenses were alleged to have been committed, on different dates, on the persons of three boys named in the information. Upon a trial Before a jury, and at the conclusion of the state's evidence, the third count was dismissed on defendant's motion. The jury found the defendant guilty on each of the other two counts. From the judgment of conviction and sentence to consecutive terms of imprisonment, the defendant has appealed.

For about four years prior to the time of the commission of the alleged offenses, appellant had operated and conducted a shoe repair shop in a general residence and business community in the city of Seattle. A group of boys, ranging from eleven to fifteen years of age, a number of whom were newsboys, made the shop a kind of rendezvous or loafing place. Another group, whose ages bordered on majority, made the shop the headquarters for a soccer football team of which they were members. The offenses charged relate to boys in the younger group. For obvious reasons, we shall not refer to the boys by name but, rather, by number, in the inverse order designated in the respective counts.

Count 3 charged the appellant with having committed the crime on the first boy on or about April 3, 1934; court 2 charged him with having committed the crime on the second boy on or about September 5, 1934; count 1 charged him with having committed the crime on the third boy on or about October 27, 1934.

The state introduced its evidence on the third count first, then on the second count, and then on the first count. It then introduced evidence, generally, on a related matter, to which we shall specifically refer a little further along.

On direct examination, the first boy testified that on or about April 3, 1934, appellant took him into a room, partitioned off from the repair shop, and, after exhibiting to him some indecent pictures which showed lewd poses of men and women and also permitting him to read some typewritten sheets containing vulgar stories regarding the opposite sex committed upon him the crime charged in the third count. The boy also testified that he had seen appellant exhibit similar pictures and also lewd books to other boys, including the other two named in the information.

On cross-examination, the boy was further interrogated concerning the date of the offense, and then fixed the time as being shortly after school vacation had begun, which was about June 17. Being recalled on direct examination, he testified that the first time that the offense was committed upon him by appellant was in the latter part of May, 1934. The trial was had in February, 1935. Throughout the course of the boy's testimony, many objections thereto were made by appellant on the ground of its irrelevancy and incompetency. Appellant insisted that, with reference to count 3, the state was limited, in its proof, to what occurred on April 3, 1934.

Although the court, at the conclusion of the state's case, and upon appellant's motion, withdrew the charge based on count 3 and instructed the jury not to consider it in any manner, appellant nevertheless now contends that the error in originally admitting the testimony was not thus cured and that its effect was to prejudice him in the minds of the jury on the other two counts. This is the basis of appellant's first assignment of error.

In our opinion, if the court committed any error at all with respect to count 3, it was in withdrawing that charge from the jury.

In the first place, it is apparent from the record that the boy was endeavoring to fix the time of the occurrence with relation to the school vacation. He first fixed it as of April 3 thinking that his vacation was at about that time. Later, his attention being called to the fact that the vacation period began on June 17, he laid the time of the occurrence as on about June 20. The time designated in the information was on or about April 3. That was sufficient to admit proof of the act at any time within the statute of limitations, there being no defense of alibi. State v. Osborne, 39 Wash. 548, 81 P. 1096; State v. Myrberg, 56 Wash. 384, 105 P. 622; State v. Thompson, 113 Wash. 696, 194 P. 553.

But, even if the evidence tended to show that two or more offenses had been perpetrated on the same boy on different dates, such evidence was competent. The general rule excluding evidence of offenses, distinct and different from that for which the defendant is being tried, does not apply to offenses involving carnal intercourse committed upon the same person.

'Offenses involving carnal intercourse of the sexes furnish a well-recognized exception to the general rule excluding evidence of other like crimes. For a reason peculiar to those crimes, the rule has been most liberally extended, until it may be safely asserted that, where the charge is made of the commission of any of the crimes known as sexual offenses, evidence of prior acts of the same character is admissible, even though such prior act is itself a crime. State v. Wood, 33 Wash. 290, 74 P. 380; State v. Fetterly, 33 Wash. 599, 600, 74 P. 810; State v. Osborne, 39 Wash. 548, 81 P. 1096; State v. Sargent, 62 Wash. 692, 114 P. 868, 35 L.R.A. (N.S.) 173; Elliott, Evidence, § 3149; Underhill, Crim.Ev. § 386; People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193, note on page 331, where the subject is exhaustively treated.' State v. Tilden, 79 Wash. 472, 140 P. 680, 681. See, also, note to 48 L.R.A. (N.S.) 236.

Such evidence is admissible on the principle and theory that antecedent conduct and demeanor of the parties towards each other tends to show the probability of the commission of the specific act charged and to corroborate the testimony of the prosecuting witness. State v. Fetterly, 33 Wash. 599, 74 P. 810; State v. Morgan, 146 Wash. 109, 261 P. 777.

Such evidence may have the effect, at times, of rendering uncertain which of several proven...