State v. Putney

• Citation: 110 Or. 634,224 P. 279
• Parties: STATE v. PUTNEY.
• Decision Date: 25 March 1924
• Court: Supreme Court of Oregon

224 P. 279

110 Or. 634

STATE v. PUTNEY.

Supreme Court of Oregon

March 25, 1924

Department 2.

Appeal from Circuit Court, Multnomah County; Geo. W. Stapleton Judge.

Frank Putney was convicted of rape, and he appeals. Affirmed.

The defendant, Frank Putney, appeals from a judgment convicting him of the crime of rape. He was indicted on March 19, 1923. Upon arraignment he entered his plea of not guilty. Thereafter the cause was set down for trial on April 6, 1923. On March 31, 1923, defendant filed a motion for continuance upon the ground that--

"The defendant cannot safely proceed to trial at this time on account of the absence of material testimony which, on account of conditions existing, he is unable to secure."

The case was allowed to pass without an order of the court until May 3, 1923, when the defendant again filed a motion for continuance. The first motion was based upon an affidavit denying that he had carnally known Elizabeth Wolfe, and setting forth that--

He could not safely proceed to trial on the date set "for the want of and on the grounds of the absence of material testimony which I am unable to procure and which cannot be present or had on that date; that I have been reliably informed, and so state the truth to be, that said Elizabeth Wolfe is now pregnant. If such is true, and this case is continued until said child is born, then, in that event, it will be of a dark blood, to wit, of a foreign race, and I know personally that Elizabeth Wolfe has admitted that she has had intercourse with a Filipino, but I do not know his present whereabouts and cannot produce at the trial on the 6th day of April, 1923, and I understand and have been so informed that said Filipino is now somewhere in the state of California. I do not know his name, except he was called 'Billy.' If this trial is continued, I can clearly establish my innocence of said charge."

The second affidavit is similar to the above, with the following additional matter:

"That Elizabeth Wolfe informed me prior to my arrest and indictment that her present condition of pregnancy was due to acts of sexual intercourse on the part of the said Filipino boy above referred to; that I have made inquiry of several persons to learn his whereabouts, but without avail; that the evidence that said Filipino boy is the father of said unborn child * * * can be had and produced in this court within six months' time. * * *"

The court overruled the motion for continuance, and upon trial by a jury composed of six men and six women, the defendant was found guilty as charged in the indictment.

Upon his trial the defendant, among other things, testified:

"Q. Frank, did the girl ever come to you after she was in difficulty? A. She didn't come to me, no. I went to see her mother. I went to call on them. I lived there about a year with them, and when they moved to their new place I went to call on them, and she told me about it. * * * It was some time the latter part of December.

"Q. How did you find it out? A. She wouldn't talk, or anything. She had always been laughing and talking with me when I was around her, and she was grouchy about something and I asked her what she was sore about, and she said 'Nothing,' that she was in bad, that she had to be careful, and I says, 'You are in bad, how?' and she told me that she had been fooling around and got in bad.

"Q. Did she tell you with whom she had been fooling? A. Yes, I asked her who done it, tried to get her to tell me who done it, and she said it was 'Billy,' and the only one that I knew of that name was a Filipino, and I judged it was the Filipino."

The defendant appeals to this court, assigning error of the court in refusing to allow his motion for continuance, in the reception and in the rejection of proffered testimony, and in overruling defendant's motion to quash the panel of jurors.

D. C Lewis, of Portland (Ernest Cole and George A. Hall, both of Portland, on the brief), for appellant.

Jay H Stockman, Deputy Dist. Atty., of Portland (Stanley Myers, Dist. Atty., of Portland, on the brief), for the State.

BROWN, J. (after stating the facts as above).

Frank Putney was indicted, tried, and convicted of the crime of rape. He was a man past the age of 32 years. Elizabeth Wolfe, a child of the age of 12 years and 10 months, was Putney's victim. The mother of the child is dead. At the time of the commission of the offense involved herein, Elizabeth Wolfe was living with a stepmother, from whom her father had separated some years before. It was claimed at the trial that the crime was committed on November 7, 1922, at the Willamette Hotel in Portland, Multnomah county, Or., which was conducted by the child's stepmother. The child assisted her stepmother in caring for the rooms. The defendant Putney lodged at the hotel.

The testimony upon which the prosecution relied for proof of the flagrant act charged in the indictment consisted of the direct evidence of Elizabeth Wolfe and a number of circumstances corroborating her testimony. This corroborative evidence consisted of admissions made to other witnesses by the defendant, and statements in writing delivered to the child by him whereby he sought to entice her to a bedroom for the purpose of carnally knowing her body. Communications in the defendant's handwriting were delivered to the child by his own hand, in which he attempted to allure the youthful creature to a bedroom in order that he might defile her. According to her testimony, the defendant ultimately accomplished his design. He advised her to take certain medicines to bring on her menses. He suggested the securing of a doctor. He wrote her directions relating to the care of her person. We omit setting this out in full for the reason that it is not fit matter to be printed. He addressed her as "Baby." He signed his communications "Daddy." In one note, among other things, he said:

"Trust me. No matter what happens don't tell on me. They won't do anything but scold you, but they would do a plenty to me. There should be a room here that I could sneak into after you clean it up in the morning. Some room that you could get to for a few minutes. * * *"

What follows is too obscene to set out.

In another note this man 32 years old writes to the child, in part, as follows:

"Baby: If I could only take you some place and love you and show you how good it is to be loved right, but now we can't do anything only watch for a chance; and please, dear, give me all the hugs and kisses you have a chance to because I need them. If you knew how much I wanted to be a real lover to you, you would never be angry.

[Signed] Daddy."

We will now review the defendant's assignments of error. He says:

"That the court erred in not allowing defendant's motion for a continuance of this cause until after the child has been born to the prosecuting witness in order to determine the child's nationality and the date of its conception, and in not allowing said facts to be presented to the jury."

"When an indictment is at issue upon a question of fact, * * * the court may, upon sufficient cause shown by the affidavit of the defendant, * * * direct the trial to be postponed * * * to another term." Or. L. § 1513.

It will be seen by the foregoing language that the motion to postpone the trial of the instant cause was addressed to the sound discretion of the trial court, and its decision thereon could only be reviewed for abuse. State v. O'Neil, 13 Or. 183, 9 P. 284; State v. Hawkins, 18 Or. 476, 23 P. 475; State v. Fiester, 32 Or. 254, 50 P. 561; State v. Walton, 51 Or. 574, 91 P. 495; State v. Finch, 54 Or. 482, 103 P. 505.

Clearly, the court committed no error in denying defendant's application for the postponement of this trial. His alleged witness "Billy" was shown by his own affidavit to be in another jurisdiction, and it is highly improbable that he would have returned to testify to the commission of a felony by himself. Neither did the court err in denying defendant's offer to prove at the trial the fact that his motion for a continuance thereof had been overruled.

The next assignment reads:

"That the court erred in allowing the introduction as evidence of certain notes and letters said by the prosecuting witness to have been given by the defendant to her and not properly identified."

The notes, in this case, were not signed by the defendant; but the testimony shows that a number of communications were delivered to Elizabeth Wolfe by the defendant personally. The testimony as to the authorship of the writings does not depend upon the evidence of the child Elizabeth Wolfe alone, but the evidence of Mrs. Hansen, while she was by no manner of means an expert, was competent, and the jury had a right to consider it for what it was worth. She said the notes were in the handwriting of the defendant, and she had seen him do a great deal of writing. Furthermore, the testimony of Elizabeth S. Morad and Carrie Turner is to the effect that the defendant, while incarcerated in jail, admitted to them that he had written these communications to the girl. Undoubtedly these missives were admissible in evidence, and it was proper that they be considered by the jury in corroboration of the testimony of the complaining witness.

Another assignment reads:

"That the court erred in allowing the prosecuting witness to testify as to other acts of this nature (rape) committed upon other girls by the defendant, which acts the prosecuting witness stated the defendant had told her about."

It is a well-established general rule that in a prosecution for the crime of rape, the state is not permitted to introduce evidence tending to prove that the defendant committed, or attempted to commit, a like offense upon a female other than the...