State v. Powell
| Decision Date | 05 January 1909 |
| Citation | 98 P. 741,51 Wash. 372 |
| Parties | STATE v. POWELL. |
| Court | Washington Supreme Court |
Appeal from Superior Court, Snohomish County; W. W. Black, Judge.
James Powell was convicted of rape, and appeals. Reversed.
E. T Bascom and E. C. Dailey, for appellant.
G. D Eveland and Robert Mulvihill, for the State.
The appellant was convicted of the crime of rape, alleged to have been committed upon a girl under the age of 18 years. He appeals from a judgment of conviction based upon the verdict of a jury.
He assigns several errors, but we think there is no merit in any of the assignments except the one based upon the motion for new trial upon the ground of newly discovered evidence. The prosecuting witness was a girl just past 15 years of age at the time of the alleged rape. She testified at the trial that she had voluntarily submitted to sexual intercourse with the appellant on April 21, 1907, and at different times thereafter; that on the night of April 21st she occupied a room with the appellant in a lodging house in the town of Monroe in Snohomish county; that the appellant, after spending the night with her, left the room about 10 o'clock the next day. She was corroborated in this latter statement by the proprietor of the lodging house who testified that he saw the appellant come out of her room at about the time stated, and that he charged the appellant with having no business there, and appellant replied that he was there for the purpose of calling the girl to go to work for him, and, when asked her name, appellant replied that he had forgotten. There were other slight corroborating circumstances, but no direct evidence of the crime except the statements of the prosecuting witness. She admitted that she had made statements out of court to the effect that she had never had sexual intercourse with the appellant, and that stories to the effect that she had were false. The jury upon substantially this evidence returned a verdict of guilty as charged. On the next day a motion for new trial was filed upon the ground of newly discovered evidence, among others. Thereafter the prosecuting witness voluntarily wrote a letter to the appellant's counsel, stating, in substance, that the story she told at the trial was false. She afterwards made an affidavit in which she stated 'under oath that her testimony in said cause above mentioned wherein she testified that the defendant had had sexual intercourse with her was and is entirely false and without any foundation whatever, and that she never had sexual intercourse with said defendant at any time.' About a week later she made another affidavit to the prosecuting attorney, stating that her statements in the first affidavit were false. Thereafter the motion for new trial came on for hearing, and the prosecuting witness was called to the stand and testified orally in explanation of these inconsistent affidavits. She then insisted that her first affidavit was correct, and that she had never had sexual intercourse with the appellant. She also explained her inconsistent positions by saying that she had testified as she did at the trial because she was threatened with sentence to the reform school unless she did so, that she made the first affidavit voluntarily, and that she made the second affidavit controverting the first at the request of her mother and others. The court, after considering these affidavits and this evidence of the prosecuting witness, denied the motion for a new trial.
This ruling of the trial court is assigned as error, and we think the assignment must be sustained. Outside of the evidence of this girl...
To continue reading
Request your trial
-
Brown v. State
...that it is an abuse of discretion not to grant a new trial." State v. Rolax, 84 Wash.2d at 838, 529 P.2d 1078, citing State v. Powell, 51 Wash. 372, 98 P. 741 (1909). Here, in granting the motion for new trial, the trial court found that defendant's conviction rested solely upon the testimo......
-
State v. Olsen
...under oath in open court and subject to cross examination, [State v. ]Rolax, [84 Wn.2d 836, 529, P.2d 1078 (1974)], [State v. ]Powell, [51 Wash. 372, 98 P. 741 (1909)], and [State v. ]York[, 41 Wn. App. 538, 704 P.2d 1252 (1985)] would require the court to permit D.T.M. to withdraw his guil......
-
State v. Olsen
... ... M.J.'s credibility. If she were to adhere to the facts in ... her recantation while under oath in open court and subject to ... cross examination, [ State v. ] Rolax , [84 ... Wn.2d 836, 529, P.2d 1078 (1974)], [ State v ... ] Powell , [51 Wash. 372, 98 P. 741 (1909)], and ... [ State v. ] York [, 41 Wn.App. 538, 704 P.2d ... 1252 (1985)] would require the court to permit D.T.M. to ... withdraw his guilty plea and proceed to trial ... Id. In other words, D.T.M. was reversed in ... the absence ... ...
-
State v. Landon
...P.2d 1078 (1974), overruled on other grounds, Wright v. Morris, 85 Wash.2d 899, 540 P.2d 893 (1975); to the same effect, State v. Powell, 51 Wash. 372, 98 P. 741 (1909); State v. York, 41 Wash.App. 538, 543, 704 P.2d 1252 (1985). However, "when there exists independent evidence corroboratin......