State v. Smith

Decision Date19 April 1940
Docket Number27821.
Citation101 P.2d 298,3 Wn.2d 543
PartiesSTATE v. SMITH.
CourtWashington Supreme Court

Department 2.

Russell Smith was convicted of rape and he appeals.

Affirmed.

Appeal from Superior Court, King County; Donald A McDonald, judge.

Chavelle & Chavelle, of Seattle, for appellant.

B. Gray Warner and Mr. Leo W. Stewart, both of Seattle, for respondent.

JEFFERS Justice.

Defendant Russell Smith, was, by an information filed July 27, 1939, by the prosecuting attorney for King county, charged with the crime of rape, in that '* * * he, said Russell Smith, in the county of King, state of Washington, on the 23rd day of July, A. D. 1939, wilfully, unlawfully and feloniously did then and there perpetrate an act of sexual intercourse with [complaining witness] then and there a female person over the age of ten years, not the wife of said Russell Smith, against her will and without her consent, the resistance of said [complaining witness] thereto being forcibly overcome.'

To this information, defendant entered a plea of not guilty. Defendant was tried and convicted, and October 10, 1939 after a motion for new trial had been made and denied, judgment and sentence was entered on the verdict. Defendant has appealed.

The state's evidence shows that the complaining witness was seventeen years old on May 5, 1939, and that the alleged crime was committed about one o'clock on the morning of July 23, 1939; that appellant had lived in the Ballard district the greater part of his life, and at one time had lived in the house where the alleged crime was committed. The complaining witness testified that she lived just across the street from the Edson home; that she had been taking care of children for about two years, and had occasionally taken care of the Edson children; that on the night of July 22, 1939, about nine o'clock, she went over to the Edson home for the purpose of caring for Mrs. Edson's three children; that the ages of these children were from six years to about two years; that the children were in bed, and Mrs. Edson was just ready to leave. She further testified that about one o'clock in the morning, she was sitting reading, when the lights went out all over the house; that she got up and went to a window to see if the lights in the I. O. O. F. hall, where there was a dance in progress, were still on, and saw that they were; that about that time there was a rap on the front, door, and, thinking it was someone to see the Edsons, she said the Edsons were not at home; that a man's voice then asked her to come out and be sociable; that she made no answer, and the man then left the porch and tried to get in through a bedroom window; that as the man left the porch, she could see him plainly, as it was very light that night; that there was no telephone in the house, and she was afraid to run out and leave the children; that she asked this man if Bernice sent him, and he said 'Yes;' that she then went and got a butcher knife from the kitchen; that she heard the bathroom window go up, and was standing in the kitchen when the man grabbed her by the neck; that she tried to hit him with the knife, but he knocked it out of her hand; that she screamed and said 'Let me go' and 'Don't do that;' that they struggled from the kitchen to the living room, where he threw her to the floor and accomplished his purpose; that he went out the back way, and that she could see him again at that time.

It further appears from the testimony of this witness that she immediately went over to the home of a Mrs. Bailey, who lived in the back of the I. O. O. F. hall, and made complaint to Arlene Taylor, daughter of Mr. and Mrs. Bailey. At this time, the witness was crying and hysterical, wringing her hands, and could hardly talk. It appears that the police were notified, and within about ten minutes, Officers John L. Sweeney and J. H. Brower arrived at the Edson home; that these officers looked over the premises and questioned the people who were there, including the complaining witness and Mrs. Bailey; that they looked at the bathroom window, which showed evidence of having been forced; that they attempted to get a description of the assailant of the complaining witness, and she gave them the name of Eddie Smith. Officer Sweeney testified that she said she did not know where Eddie Smith lived, but thought her friend Bernice Stuart might; that the officers then took the complaining witness and Mrs. Bailey to the Stuart home, and talked to Miss Stuart, going from there to the police station; that the officers then went to the Smith home, and found one of the boys in a car out in front of the house; that they took him to the station, and complaining witness said that was not the person; that Sergeant White and Mrs. Bailey were in the room; that the officers then went back to the Smith home, aroused Eddie Smith and brought him to the station, and complaining witness said, 'No, that is not him, but it is his brother;' that the officers then brought appellant, Russell Smith, to the station. Officer Sweeney testified: 'When we walked into the station she took one look at him, this girl did, and said 'That is the man,' and that is all there was to it.'

There is testimony that the complaining witness was immediately examined by Doctor Rankin, who testified that from his examination he was of the opinion that there had been a rupture of the hymen within two or three hours. This examination was made at three-ten A. M., July 23rd.

Appellant's testimony was to the effect that he did not know the complaining witness, did not see her or have anything to do with her the night in question; that he was down town all evening, in various pool halls and beer parlors, in company with some friends; that they were drinking and having a good time, and that sometime after one o'clock, he left for his home in Ballard, with Carl Abramson, in the latter's car; that he got out at Twentieth and Market, and went immediately home and to bed. Appellant was corroborated by several witnesses as to his activities during the evening, and as to the time he got back to Ballard.

Appellant first contends that the court erred in admitting certain details and particulars of the complaint into evidence, on the theory it was part of the res gestae. It will be noted that this objection goes principally to the statement of the complaining witness that the man's name who assaulted her was 'Ed.'

As to Officer Sweeney, appellant bases his claim of error on the admission of the following testimony:

'Q. (By Mr. Stewart) The nails in the casing had been forced? A. Yes. From that point, because of the nature of the case, we did not care to go into all the details with the girl, that is, by questioning her, but we talked to her enough to determine what we felt had taken place, and I believe we asked her--' (Mr. Chavelle at this point interposed an objection to any of the details of the complaint.)

'Mr. Stewart: He is entitled to say whether she had been assaulted. * * *

'The Court: Objection overruled.

'The Witness: She admitted that she had been assaulted.

'Q. (By Mr. Stewart) Was your attention called to the floor in the kitchen, or any part of the house, Officer Sweeney, to the best of your recollection, or not? A. Only to the point that she pointed out that is where it took place, on the floor. I believe it would be called the living room.' (Mr. Chavelle again objected that details of the complaint were not admissible, and the court overruled the objection.)

The following testimony of Officer Sweeney was admitted without objection:

'Q. Where did you go from there? A. Well, we tried to determine if the girl had seen her assailant, if she could give any description at all.

'Q. What was said? A. She gave us what she could, and she gave the name.

'Q. What name did she give? A. Eddie Smith; and we asked her if she knew where Eddie Smith lived, and she said no, but she said that a girl friend of hers by the name of Barbara stuart would possibly know where Eddie Smith lived. So we then took the girl with Mrs. Bailey to the station, told the sergeant, the commanding officer, the facts we had, and what we had to go on, so this girl told us where this Barbara Stuart lived. We figured well, we would go up there and ask her if she knew this Eddie Smith.

'Mr. Chavelle: Was that Bernice Stuart?

'The Witness: Bernice Stuart, possibly.'

It further appears that in the cross-examination of Officer Sweeney by Mr. Chavelle, the latter went into the matter and inquired who the complaining witness said her assailant was, and about the name 'Eddie Smith.'

We also have the testimony of Arlene Taylor, daughter of Mrs. Bailey, that she heard noises in the direction of the Edson home, and heard someone say, 'Let me up, let me up. Please don't do that, Ed, my mother will kill me.'

It is contended that the following parts of the testimony of Officer Brower were erroneously admitted, and prejudicial:

'Q. (By Mr. Stewart) What was said, if anything, about the name of the man that got in there?

'Mr. Chavelle: I object to that. I think that is hearsay, what the name of the man was, and, furthermore, it is the law in this state that any details or particulars of a complaint--and even the cases have gone so far as to say the man's name--cannot be introduced in evidence by what the complaining witness told some officer.

'The Court: That is true, unless it is part of the res gestae. I understand this was immediately after the occurrence.

'Mr. Chavelle: How long was it?

'The Witness: It couldn't have been more than ten minutes after we got the call.

'The Court: Objection overruled.

'Mr. Chavelle: Note an exception.

'Q. (By Mr. Stewart) What did she say the name was? A. She said the...

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