State v. Pilegge
| Decision Date | 19 December 1910 |
| Citation | 61 Wash. 264,112 P. 263 |
| Parties | STATE v. PILEGGE. |
| Court | Washington Supreme Court |
Department 1. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.
Frank Pilegge was convicted of an assault with intent to rape, and he appeals. Affirmed.
Gallagher Smith & Mack, for appellant.
Fred C Pugh and Lucius G. Nash, for the State.
The appellant was convicted of an assault with intent to commit the crime of rape. He appeals from the judgment pronounced thereon.
It appears that, after the state had introduced all its evidence and counsel for the appellant had called the appellant to the witness stand in his own behalf, the trial court requested counsel for the appellant to first make a statement of his defense to the jury.
Counsel for the defense thereupon declined to do so and, after a short consultation with the defendant, announced to the court that the defendant would rest his case and offer no testimony. This occurred in the afternoon, at about time for the usual adjournment. The trial court thereupon took a recess until the next morning. The witnesses for the state were excused from further attendance upon the court. The next morning counsel for the defendant requested permission to place the defendant upon the witness stand to testify that he passed by the place where the crime was alleged to have been committed on the morning thereof, but did not stop. Counsel for the state objected to this, upon the ground that the case was finished the evening before, that he had excused his witnesses, and that one of his important witnesses whom he would need upon rebuttal had gone away and could not be had. Defendant's request was thereupon denied, and he argues now that the trial court abused its discretion in so ruling.
There are cases in which the courts have held that the fact that all the witnesses for one side have been excused after the case has been closed is not sufficient ground for refusing a reopening. Maddox v. State, 68 Ga. 294. In State v. Craemer, 12 Wash. 217, 40 P. 944, this court said: 'If the record disclosed that there was in fact a person whose testimony could have been secured upon reasonable adjournment had, and that such testimony was material to appellant's case, we should not hesitate to say, considering the great importance of the issue, that the refusal of the court to grant a reasonable continuance would be error. * * *' Those were cases, of course, where diligence had been used, and where defendant did not know of and could not call the witnesses in the regular and orderly conduct of the trial. In this case, however, no such condition arises. Here counsel for the defense had all of his witnesses, and he knew what the testimony would be on the evening before when he refused to offer any evidence. He did so advisedly. But, after the state had excused its witnesses, he changed his mind, and concluded that he would offer the evidence stated. It was clearly within the discretion of the court at that time under the circumstances stated to refuse the request, and we think the denial was not such an abuse of discretion as would justify a reversal of the case.
Appellant next argues that the evidence is insufficient to sustain the verdict of the jury, because it was necessary for the state to show (1) an assault; (2) an intention to have carnal knowledge of the prosecuting witness against her will; (3) without her consent; (4) with force; and (5) to overcome by such force as was necessary all resistance the prosecuting witness could make, and that none of these elements were shown except the assault. Conceding that all these elements are necessary to be shown, there is abundant evidence of each fact stated. The assault is conceded. The intention of the appellant in making the assault is shown by his acts, and it was for the jury to say what his intentions were. The evidence shows that the prosecuting witness lived in the country, about a mile distant from an interurban railway station; that this was a small waiting station for passengers, open on one side, with no one in charge; that on October 26, 1909, she walked from her home to the station where she intended to take the train for Spokane; that she arrived at the station about 9:30 in the morning; that the train was due at about 9:39; that she was the only occupant of the station; that while she was there the appellant came up, and made some remark to her about the time the train would be...
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State v. Lynch
...ascertain to any degree of certainty what effect the excitement and terror may have had upon her physical system.State v. Pilegge, 61 Wash. 264, 268, 112 P. 263 (1910) (quoting State v. Shields, 45 Conn. 256, 264 (1877)). ¶ 46 Despite this relatively enlightened case law, the pre-reform sta......
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People v. Yanik
...State v. Roberts, 91 Utah 117, 124-125, 63 P.2d 584; Barnett v. Commonwealth, 216 Va. 200, 202-203, 217 S.E.2d 828; State v. Pilegge, 61 Wash. 264, 267-268, 112 P. 263.Only a few States retain the "utmost resistance" standard by judicial interpretation and in these States the standard is ap......
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State v. Severns
... ... justified in denying the above motions. The degree of force ... used by appellant in this case to accomplish his purpose, as ... testified by Betty Marlowe, was sufficient to bring the case ... within the rule announced in State v. Pilegge, 61 ... Wash. 264, 112 P. 263, and State v. Mertz, 129 Wash ... 420, 225 P. 62 ... We ... shall now pass to a discussion of the error claimed as the ... basis for the motion for new trial ... It may ... be noted that § 2435, supra, ... ...
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State v. Partin
...not reverse the trial court except for abuse of discretion. State v. Harmon, 21 Wash.2d 581, 592, 152 P.2d 314 (1944). State v. Pilegge, 61 Wash. 264, 112 P. 263 (1910) is directly in point. In Pilegge defense counsel advised his client against taking the stand and rested. The prosecuting a......