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

277 P. 377

152 Wash. 155

STATE v. POWERS.

No. 21575.

Supreme Court of Washington

May 9, 1929

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.

FULLERTON J.

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 The third count was withdrawn from the consideration of the jury during the course of the trial, and no verdict was returned thereon.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:

'You are further instructed that it is the policy of the law as expressed in the statute that any female under the age of 18 years of age shall be incapable of consenting to the act of sexual intercourse, and that any male person who shall have formed and existing ih his mind an intent then and there to carnally know and abuse a female child under said age of eighteen years, and who thereupon with the purpose of carrying into effect his said formed intent to carnally know and abuse said female child, seizes or lays hands upon the body of said female child shall be deemed guilty of the crime of assaulting her with intent to commit said crime of carnal knowledge, notwithstanding he obtained her actual consent to such acts on the part of defendant, if you so find beyond a reasonable doubt. Whether the girl in fact consented or resisted is immaterial.

'In such a case the element of force nor the question of consent has nonapplication if the child is under the age of eighteen years. A female child under the age of 18 years is incapable of consenting to carnal knowledge of her, and therefore the law resists for her.

'So if you find the said Doris Singer was under 18 years of age, at said time, she was then incapable of giving her consent to an act of sexual intercourse, and it is immaterial whether she made any outcry or resistance.'

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:

'Rape is an act of sexual intercourse with a female not the wife of the perpetrator committed against her will and without her consent. Every person who shall perpetrate such an act of sexual intercourse with a female of the age of ten years or upwards not his wife. * * *

'(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: 'The appellant contends that this information charges but one crime under subdivision three of said section, and that the allegations of force and want of consent should be rejected as surplusage. The respondent on the other hand contends that the information charges the crime of rape under both the first and the third subdivisions, and that therefore two crimes are charged. It seems to us the demurrer was improperly sustained whichever view we adopt. If the contention of the appellant be sustained, it is manifest that the information charges but one crime, and in our opinion the same conclusion follows if we adopt the views of the respondent. The statute defines but one crime and prescribes but one penalty therefor. Where a statute provides that a crime may be committed in different ways or by different means, the act constitutes but a single offense, whether one or all of the ways and means be employed in its commission, and it is proper to charge in an information that the crime was committed in one of the ways or by one of the means specified in the statute, or in all the ways and by all the means conjunctively.'

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 violative of both ...