State v. Powers
Decision Date | 09 May 1929 |
Docket Number | 21575. |
Citation | 152 Wash. 155,277 P. 377 |
Parties | STATE v. POWERS. |
Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Ferry County; C. H. Neal, Judge.
Roy Powers was convicted of attempted rape on the person of a female child then under the age of 18 years, and he appeals. Affirmed.
P. D Smith, of Okanogan, for appellant.
Thomas I. Oakshott, of Colville, for the State.
The appellant, Powers, was convicted of the crime of attempted rape on the person of a female child then under the age of 18 years. The information filed against him was in three counts, all founded upon the same transaction. The first count, omitting the introductory parts, reads as follows: 'That the said Roy Powers, in the county of Ferry, State of Washington, on the 17th day of July, A. D 1926, then and there being did, then and there, unlawfully wilfully and feloniously assault one Doris Singer, a female child, not the wife of said Roy Powers and under the age of 18 years, to-wit, of the age of 17 years, and did then and there, by force and violence and against the will of said Doris Singer, attempt to have sexual intercourse with and to carnally know and abuse her the said Doris Singer, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Washington.'
The second count charged an assault with intent to commit a felony, being the crime denominated by the statute (Rem Comp.
Stat. § 2414) as an assault in the second degree. The third count charged an indecent assault. The jury found the appellant guilty on the first count and not guilty on the second. The third count was withdrawn from the consideration of the jury during the course of the trial, and no verdict was returned thereon. The judgment and sentence from which the appeal is prosecuted is based on the verdict returned on the first count.
The court, in its instructions to the jury, gave none on the theory of an attempt to commit a forcible rape. It instructed on the theory of an attempt to commit that form of rape, called for the purposes of distinguishment, statutory rape; its instruction in that respect being as follows:
The statutes defining the crime of forcible rape is found at section 2435 of the Code (Rem. Comp. Stat.), and reads in part as follows:
* * *
'(2) When her resistence is forcibly overcome. * * *
'Shall be punished by imprisonment in the state penitentiary for not less than five years.'
Statutory rape is defined (Id., § 2436) as follows:
'Every male person who shall carnally know and abuse any female child under the age of eighteen years, not his wife, and every female person who shall have sexual intercourse with any male child under the age of eighteen years, not her husband, shall be punished as follows:
'(1) When such child is under the age of ten years, by imprisonment in the state penitentiary for life;
'(2) When such child is ten and under fifteen years of age, by imprisonment in the state penitentiary for not less than five years;
'(3) When such child is fifteen and under eighteen years of age, by imprisonment in the state penitentiary for not more than ten years, or by imprisonment in the county jail for not more than one year.'
It is the appellant's contention that, notwithstanding the information may be broad enough to state a crime under either section of the statute, the evidence was not sufficient to sustain a conviction under the second, and that in consequence it was error to submit an instruction under it. Unquestionably, the prosecuting witness did testify to acts on the part of the appellant and to acts of resistance on her own part which tended to show an attempt to commit a forcible rape upon her person. But in addition to this testimony, she testified that she was under the age of 18 years at the time of the assault, which brought the acts the appellant was accused of committing under the second section of the statute. The evidence, as we read it, was sufficient to carry the case to the jury on either section of the statute. This being true, the court could well have submitted the case to the jury on both theories; that is to say, on the theory of an attempt to commit a forcible rape on a female person over 18 years of age, and of an attempt to commit a rape without force on a female child under that age. For the court to omit to charge upon the first theory, and to charge on the second, is not an error of which the appellant can complain. The omission was rather to his benefit than to his detriment, and hence could in no way be prejudicial to him.
It may be that we have not caught the appellant's meaning on another branch of his argument, but, if we understand him, he asserts that, if the information states a crime under the provision of the statute under which he was convicted, it states more than one crime. But this question we have met and determined to the contrary in our prior decisions. In State v. Adams, 41 Wash. 552, 83 P. 1108, the information charged a forcible rape on the person of a female child 'under the age of eighteen years, towit, of the age of 17 years.' A demurrer was sustained to the information in the court below on the theory that more than one crime was stated, and the state appealed. Reversing the case, we used this language:
See, also, State v. Fillpot, 51 Wash. 223, 98 P. 659; State v. Wappenstein, 67 Wash. 502, 121 P. 989; State v. McBride, 72 Wash. 390, 130 P. 486; State v. Meyerkamp, 82 Wash. 607, 144 P. 942; State v. Gipson, 92 Wash. 646, 159 P. 792; State v. Klein, 94 Wash. 212, 162 P. 52; State v. Hennessy, 114 Wash. 351, 195 P. 211; State v. Murie, 140 Wash. 71, 248 P. 79; State v. Spiller, 146 Wash. 180, 262 P. 128.
The crime of rape by force, and the crime of rape because of the age of the victim, are defined, it is true, in separate sections of the statute, but this does not make a single act which is...
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State v. Smith
...said nothing about whether the prosecutor could have, alternatively, elected to proceed under both sections. See State v. Powers, 152 Wash. 155, 160, 277 P. 377 (1929) (explaining that the Allen court did not intend to suggest that the prosecutor must elect between the two crimes). Likewise......
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