State v. Sargent

• Citation: 62 Wash. 692,114 P. 868
• Court: United States State Supreme Court of Washington
• Decision Date: 05 April 1911
• Parties: STATE v. SARGENT.

114 P. 868

62 Wash. 692

STATE v. SARGENT.

Supreme Court of Washington, En Banc.

April 5, 1911

Appeal from Superior Court, Thurston County; John R. Mitchell Judge.

Dennis Sargent was convicted of statutory rape, and he appeals. Affirmed.

G. C Israel and Frank C. Owings, for appellant.

John M Wilson, for State.

CROW J.

This is an appeal from a judgment of the superior court of Thurston county, entered upon a verdict convicting the defendant of statutory rape.

Section 2436, Rem. & Bal. Code, in so far as it applies to this cause, reads as follows: 'Every person who shall carnally know and abuse any female child under the age of eighteen years, not his wife, shall be punished as follows: * * * (3) When such child is fifteen and under eighteen years of age, and of previously chaste character, 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.'

Appellant Dennis Sargent was charged under subdivision 3. The female child, as prosecuting witness, testified that the first act of intercourse occurred on January 2, 1910, and that subsequent acts, prior to March 1, 1910, the date named in the information, occurred on January 16, January 18, and January 20, 1910. Appellant was arrested on March 15, 1910. The evidence was sufficient to show, and the jury by their verdict found, the prosecuting witness to be of previously chaste character. The state, upon appellant's motion and the order of the trial court, selected the act of January 20, 1910, as the particular one upon which it relied for conviction. Appellant contends that the trial judge erred in denying his motion to withdraw the cause from the jury, and in not directing a verdict of acquittal. Citing State v. Dacke, 59 Wash. 238, 109 P. 1050, appellant insists that the evidence of the prosecuting witness shows she was not of chaste character on January 20, 1910, the date of the act upon which the state relied, and that the appellant should have been discharged; his theory being that the prosecuting witness was unchaste at all times after her first intercourse with him on January 2, 1910.

There is a marked distinction between the facts of the Dacke Case and those here shown. Dacke, who was informed against and convicted in Kittitas county, had previously sustained criminal relations with the prosecuting witness in Snohomish county, at various times from November, 1908, until March 1909. The prosecuting witness then moved to Kittitas county, where the criminal act charged and for which the defendant was convicted subsequently occurred. The statute under which he was prosecuted, being the section here involved, did not go into effect until June 8, 1909, at which time the prosecuting witness was unchaste. Discussing the statute, we said: 'The requirement that the female against whom the offense is committed shall be of 'previously chaste character' was unknown to the common law, nor was it an ingredient of any statute of this state defining rape until the act of 1909 [Laws 1909, c. 249, § 184]. When, therefore, that act went into effect on the 8th day of June, 1909, it brought within its protecting terms a theretofore--so far as this crime is concerned--unknown requirement, that of previous chastity. The carnal knowledge of a female child between the ages of 15 and 18 years, with her consent, under the old law, constituted rape; but under this act of 1909, under which this information lies, such carnal knowledge is not a crime, unless the female child be of 'previously chaste character." None of the criminal acts occurring between Dacke and the prosecuting witness from November, 1908, to March, 1909, could have been proven under the information drawn under the third subdivision of section 2436. The act pleaded and relied upon for conviction occurred in Kittitas county, where Dacke and the prosecuting witness had resumed their criminal relations about June 30, 1909, and this court held the prosecuting witness was then unchaste, although she had sustained no criminal...