State v. Powers, 21575.

• Court: Washington Supreme Court
• Writing for the Court: FULLERTON, J.
• Citation: 152 Wash. 155,277 P. 377
• Decision Date: 09 May 1929
• Docket Number: 21575.
• Parties: STATE v. POWERS.

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 [152 Wash. 156] 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. [277 P. 378]

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 The third count was withdrawn from the consideration of the jury during the course of the trial, and no verdict was returned thereon.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 [152 Wash. 157] 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, [152 Wash. 158] 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...