State v. Oberg, 25756.

• Court: United States State Supreme Court of Washington
• Writing for the Court: STEINERT, Justice.
• Citation: 187 Wash. 429,60 P.2d 66
• Decision Date: 21 August 1936
• Docket Number: 25756.
• Parties: STATE v. OBERG.

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.

[187 Wash. 430] 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 [187 Wash. 431] they were members. The offenses charged relate to boys in the younger group. For obvious reasons, we shall not refer to the [60 P.2d 67] 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[187 Wash. 432] 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...