State v. Osborne

• Court: Washington Supreme Court
• Writing for the Court: FULLERTON, J.
• Citation: State v. Osborne, 39 Wash. 548, 81 P. 1096 (Wash. 1905)
• Decision Date: 09 August 1905
• Parties: STATE v. OSBORNE.

81 P. 1096

39 Wash. 548

STATE v. OSBORNE.

Supreme Court of Washington

August 9, 1905

Appeal from Superior Court, Walla Walla County; Thomas H. Brents Judge.

R. H Osborne was convicted of rape, and appeals. Affirmed.

Oscar Cain, for appellant.

Lester S. Wilson, for the State.

FULLERTON J.

On October 11, 1904, the appellant was informed against for the crime of rape alleged to have been committed on October 10 1904, on the person of a female child of the age of 13 years. On arraignment he pleaded not guilty, and in the due course of procedure was put upon his trial. The evidence on the part of the state tended to show that the appellant commenced criminal relations with the girl some three months prior to the time the information was filed against him, and that these were continued down to the time of his arrest. The evidence of the specific acts rested on the testimony of the girl herself, and she could not fix definitely the dates of their occurrences, but she testified to several attempts made at the beginning of their relationship from four days to two weeks apart, resulting finally in consummated acts of sexual intercourse occurring at like periods, the last of which occurred on a Sunday a week or two weeks prior to the date laid in the information. The first of these acts took place in the back part of the store of the appellant in the city of Walla Walla, and the later ones near the suburbs of that city at a place known as 'McGallon's Grove.' The witness testified that no consummated act of sexual intercourse took place between them at the time named in the information, namely, October 10 1904. She testified that she had met the appellant at the grove for that purpose on that day, and that they were about to consummate the act, when they were interrupted by a person who immediately caused the arrest of the appellant and her own detention. On the trial, when these facts appeared, the appellant moved that the jury be instructed to return a verdict of not guilty, stating as grounds for the motion 'that the evidence in this case shows that upon the day charged in the information the defendant did not commit the crime of rape, and that the acts proved there do not constitute attempted rape.' The court declined to direct a verdict as requested, but on its own motion directed the prosecution to elect upon which of the several acts the evidence tended to prove he would rely for a conviction. The prosecuting attorney thereupon elected to rely upon an act testified to by the girl as occurring on a Sunday, at McGallon's grove, the week before, or two weeks before, the time laid in the information. The appellant thereupon put in his defense, and the cause was submitted to the jury under instructions from the court to find the appellant not guilty unless the evidence satisfied their minds beyond a reasonable doubt that the appellant had carnal knowledge of the prosecuting witness at the time testified to by her on Sunday, at McGallon's grove, one or two weeks prior to the time laid in the information. A verdict of guilty was returned by the jury, and sentence pronounced thereon. The appellant excepted to the ruling of the court refusing to direct a verdict in his favor, and assigns such refusal as error on this appeal.

The appellant contends that the information charges a rape committed on October 10, 1904, and that when the state failed to prove a rape committed on that day it failed in its proofs, and the appellant was entitled to an instruction directing a verdict of not guilty. He argues that under the statute, as well as under the general principles of criminal law, the information must be direct and certain as to the crime charged, and the particular...