State v. Pickel

• Citation: 116 Wash. 600,200 P. 316
• Decision Date: 23 August 1921
• Docket Number: 16272.
• Court: United States State Supreme Court of Washington
• Parties: STATE v. PICKEL.

200 P. 316

116 Wash. 600

STATE v. PICKEL.

No. 16272.

Supreme Court of Washington

August 23, 1921

Department 1.

Appeal from Superior Court, Spokane County; Hugo E. Oswald, Judge.

Florence Pickel was convicted of carnally knowing and abusing a female under the age of consent, as an accessory before the fact and appeals. Affirmed.

John M Gleeson and A. G. Gray, both of Spokane, for appellant.

Joseph B. Lindsley, James Emmet Royce, and William C. Myers, all of Spokane, for the State.

HOLCOMB J.

Appellant appeals from a judgment of conviction, and sentence thereon upon an information charging that----

'On or about March 1, 1920, in Spokane, Washington, she did then and there willfully, feloniously, and unlawfully aid, abet, encourage, and permit one Charles Jennings to commit the crime of carnal knowledge and abusing a female child under the age of eighteen years, to wit, one Tillie Schmidtz; the said Tillie Schmidtz being of the age of fourteen years and not then and there being the wife of the said Charles Jennings.'

The evidence for the prosecution tended to show these facts: Tillie Schmidtz lived in the town of Davenport, where appellant and her husband also resided for a number of years. In the summer of 1919 Charles Jennings met appellant in Davenport. Early in the year 1920 appellant and her husband and children left Davenport and moved to Spokane. The husband returned to Lincoln county within two days after moving to Spokane, and secured steady employment, and was absent from home all week, seeing his family only on Sundays. When appellant and her family moved to Spokane, the Schmidtz girl went with them, with the permission of the mother of the girl, and upon the understanding that the girl was to make her home with appellant. On the night of February 21, 1920, appellant and the Schmidtz girl were returning from a dance hall on the 'owl' car. Jennings was on the car, and appellant addressed him and reminded him of their having met in the street at Davenport the previous year. She introduced him to the Schmidtz girl, and invited him to visit them. He went out the next night, Sunday, February 22. He arrived there about 6 p. m. and appellant was not at home, and did not return until 10 p. m. She remained down stairs for a time, and then retired. She asked the Schmidtz girl the next morning if she got any money from Jennings. Appellant again invited Jennings to the house, requesting that he bring another man with him, and arranged to meet him the following Tuesday night, February 24. Jennings went to the house Tuesday night, the 24th, and took another young man with him, arriving there about 10 p. m. Jennings and the Schmidtz girl, and appellant and the other young man, entertained each other in the front room until about 2 a. m. Jennings and the girl occupied the sofa, and both testified that they had sexual intercourse there; both appellant and the other young man being present. Some time during the evening the light in the room was extinguished, either by burning out or by being turned off, and was not renewed. The light burned in the adjoining room, and shone through the open door into the front room.

Jennings was a young man of about 21 years. Appellant was of the age of 28, a married woman, mother of four living children, the eldest being a daughter about 13 years of age, and the Schmidtz girl was between 14 and 15 years of age. The crime charged is that of carnally knowing and abusing a female child under the age of consent, as an accessory before the fact.

The distinction between an accessory before the fact and a principal, or a principal in the second degree, is abolished by section 2007, Rem. Code, which provides that all persons concerned in the commission of an offense, whether they directly counsel the act constituting the offense, or counsel, aid, and abet in its commission, though not present, shall hereafter be indicted, tried, and punished as principals. Section 2260, Rem. Code, also defines a principal as every person concerned in the commission of a felony, gross misdemeanor, or misdemeanor, whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent, and every person who directly or indirectly counsels, encourages, hires, commands, induces, or otherwise procures another to commit a felony, gross misdemeanor, or misdemeanor, is a principal, and shall be proceeded against and punished as such.

The state was required to, and did, elect to rely upon the alleged intercourse occurring Tuesday night, February 24, as the crime charged. The jury were instructed to disregard all evidence concerning any subsequent alleged intercourse, and to consider prior alleged intercourse, if any, for the purpose of corroboration of the offense alleged on February 24.

It is elementary that every person who counsels a crime, or contributes to it, directly or indirectly, has a guilty participation in that crime. Under our statute encouragement is made an element of the offense of aiding and abetting in the commission of a crime, and encouragement may be by either words or deeds. To encourage is defined as:

'To help, forward, incite, stimulate, countenance, advise.' Webster's International Dictionary.

The encouragement by appellant of Jennings to commit the crime upon the girl consisted, if at all, in these facts and circumstances: Appellant took a girl of very immature age night after night to public dance halls; she kept the girl out late at night; she permitted the girl to make promiscuous acquaintances among men; she herself remained out late at night, knowing the girl was at home and expecting the young man; she frequently remained out all night, to the girl's knowledge; she invited a man of whom she knew nothing to visit the girl in her home, and then absented herself on the night of his coming. She suggested to the girl, by questioning, that she should get money out of the young man; she, according to the state's evidence, was in the...