State v. Severns
| Decision Date | 13 May 1942 |
| Docket Number | 28646. |
| Citation | 125 P.2d 659,13 Wn.2d 542 |
| Parties | STATE v. SEVERNS. |
| Court | Washington Supreme Court |
Department 2.
Harry Severns was convicted of rape, and he appeals.
Reversed with instructions.
Appeal from Superior Court, Klickitat County Howard J. Atwell, judge.
Charles F. Bolin and E. L. Bennett, both of Toppenish, for appellant.
Edgar H. Canfield, of Goldendale, and Ralph S. Barber, of White Salmon, for respondent.
On November 7, 1940, an information was filed in the superior court for Klickitat county, by the prosecuting attorney of that county, charging Harry Severns with the crime of forcible rape. The charging part of the information is as follows: 'That on or about the 22nd day of October, 1940 and within the last three years immediately preceding the filing of this information, in Klickitat county Washington, the above named defendant, Harry Severns, did, then and there being, unlawfully, feloniously, wilfully, and forcibly overcoming her resistance, against her will and without her consent, have sexual intercourse with one Betty Marlowe, a female person over the age of eighteen years, the said Betty Marlowe not then and there being the wife of the said Harry Severns.'
After the filing of this information, defendant was arrested, and on November 13, 1940, arraigned, at which time he entered a plea of not guilty. The case did not come on for trial until September 25, 1941, and on September 27th following, defendant was, by the verdict of the jury, found guilty of the crime charged in the information. Motions in arrest of judgment, or in the alternative for new trial, were timely made and denied, and judgment and sentence entered on November 10, 1941, from which judgment defendant has appealed. Appellant makes twenty-four assignments of error.
At the time of the act here charged, appellant was living with his wife, Nellie Severns, in Hood River, Oregon. He had formerly lived in Wishram, Washington, and had known Betty Marlowe, the complaining witness, since she was a small girl. Mrs. Severns has two married daughters, one, Viola Rayburn, living in Wishram, where the complaining witness resides, the other daughter, Mary Howard, living in Hood River.
Betty Marlowe is a young woman twenty years of age, who at the time of the act charged in the information was living with her uncle, Sam Marlowe, at Wishram. Betty had apparently made her home with her uncle since she was a small child. It does not appear that Betty had ever been approached by appellant, or that he had ever in any way made any advances of any kind to this young woman prior to the time of the act here in question. According to her testimony, the alleged act was committed in the early morning of October 22, 1940, between the hours of 4:30 and 6:30, at which time her uncle, who was a railroad man, had left on his run and she was alone in the house.
Betty testified on cross-examination that she had a boy friend in Portland, and that she had spent most of the week previous to the occurrence here in question in Portland, where she stayed with a Mrs. Sweezel. It was apparently the theory of the defense, in part at least, that Betty had been intimate with this boy friend in Portland, that she thought she was in trouble, and that in making this charge against appellant, she was trying to protect her boy friend.
This prosecution is based upon Rem.Rev.Stat. § 2435, subdivision (2), which provides:
Appellant bases error on the refusal of the trial court to grant appellant's motion for a directed verdict, or withdraw the case from the consideration of the jury at the close of the state's case, there being insufficient evidence to submit the case to the jury on the theory of forcible rape. Appellant also bases error upon the refusal of the trial court to direct a verdict in appellant's favor at the close of all the evidence.
The argument of appellant in support of these motions is based principally upon the claim that the state failed to show that the complaining witness, Betty Marlowe, to the extent that she was physically capable, resisted the efforts of appellant to accomplish the act; in other words, that the state failed to show that the resistance of Miss Marlowe was overcome by that degree of force which the law requires.
In view of the fact that we are in accord with the action of the trial court in denying these motions, and in view of the further fact that we have concluded that a new trial must be granted in this case, we do not deem it necessary to discuss the evidence, other than to say that under the facts of the case and the law applicable thereto, the trial court was justified in denying the above motions. The degree of force used by appellant in this case to accomplish his purpose, as testified by Betty Marlowe, was sufficient to bring the case within the rule announced in State v. Pilegge, 61 Wash. 264, 112 P. 263, and State v. Mertz, 129 Wash. 420, 225 P. 62.
We shall now pass to a discussion of the error claimed as the basis for the motion for new trial.
It may be noted that § 2435, supra, has five subdivisions, and we quote subdivision (3): 'When her resistance is prevented by fear of immediate and great bodily harm which she has reasonable cause to believe will be inflicted upon her.'
As we have stated, the information charged the act was committed by forcibly overcoming the resistance of the complaining witness, or under subdivision (2), supra. However, the trial court gave instruction No. 5, as follows:
'You are instructed that so far as is necessary for your consideration, as a matter of law, the crime of rape is defined as follows:
(Italics ours.)
Appellant timely excepted to the giving of instruction No. 5, and bases error thereon.
The state makes a contention in regard to instruction No. 5, which we have not Before heard advanced in a criminal case. We quote from pages 24 and 26 of respondent's brief:
* * *
(Italics ours.)
Rem.Rev.Stat. § 2057 provides:
'The indictment or information must be direct and certain, as it regards:----
'1. The party charged;
'2. The crime charged; and
We have recognized that where the statute provides that a crime may be committed in different ways or by different means, it is proper to charge in the 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. Even though the statute disjunctively connects the different ways or means, the information may allege them conjunctively, provided the different ways or means are not repugnant to each other. State v. Adams, 41 Wash. 552, 83 P. 1108; State v. Meyerkamp, 82 Wash. 607, 144 P. 942. However, we have been cited to no authority, nor do we know of any, which permits a court, when the information charges the act to have been done in only one of the ways or by one of the means named in the statute, to instruct the jury that they may consider other ways or means by which the act may have been committed.
We are firmly of the opinion that where, as in the instant case, the information charges that the crime was committed in a particular way, under one subdivision of a statute, it is error for the trial court to instruct the jury, as was done in this case, that they might consider other ways or means by which the act charged might have been committed, regardless of the range which the court may have permitted the testimony to take.
We seriously doubt that where an instruction such as instruction No. 5 in this case has been given, the error can be corrected by a subsequent instruction, especially where, as in the instant case, the state, in its argument to the jury, is permitted, over objection, to call the jury's attention to the way or means by which the act might have been committed, as set out in the...
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...Pitts, 62 Wash.2d 294, 382 P.2d 508(4, 6), followed State v. Huston, 71 Wash.2d 226, 428 P.2d 547, 553(11). Compare State v. Severns, 13 Wash.2d 572, 125 P.2d 659, 667(13). See also State v. Morden, 87 Wash. 465, 151 P. 832 ('alibi' for prosecuting witness).Wyoming: Esquibel v. State, 399 P......
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...may be harmless if "in subsequent instructions the crime charged was clearly and specifically defined to the jury." State v. Severns, 13 Wn.2d 542, 549, 125 P.2d 659 (1942). Any error regarding the trial court's definitional instruction for first degree robbery was harmless for several reas......
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...ability to defend, it is error to instruct the jury on uncharged offenses or uncharged alternative theories. E.g., State v. Severns, 13 Wash.2d 542, 548, 125 P.2d 659 (1942); State v. Chino, 117 Wash.App. 531, 540, 72 P.3d 256 (2003). The error can be harmless if other instructions define t......
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State v. Titialii, No. 30187-3-II (WA 9/27/2005)
...97. Br. of Appellant (Junior) at 22. 98. CP (Fred) at 1-2 (emphasis added); CP (Junior) at 1-2 (emphasis added). 99. State v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942). 100. State v. Hayes, 81 Wn. App. 425, 432, 914 P.2d 788, review denied, 130 Wn.2d 1013 101. State v. Berlin, 133 Wn.......