State v. Smith
| Decision Date | 08 February 1944 |
| Docket Number | 29173. |
| Citation | 145 P.2d 557,20 Wn.2d 53 |
| Parties | STATE v. SMITH. |
| Court | Washington Supreme Court |
Rehearing Denied March 14, 1944.
Department 2.
Le Roy Smith was convicted of the crime of carnal knowledge, and he appeals.
Judgment affirmed and cause remanded with direction.
Appeal from Superior Court, King County; James B. Kinne, judge.
John C Richards, of Everett, for appellant.
Lloyd Shorett and Leo J. Peden, both of Seattle, for respondent.
Defendant was found guilty by a jury of the crime of carnal knowledge. The complaining witness was fourteen years of age. The court entered judgment on the verdict and sentenced defendant to the penitentiary for a term of not more than twenty years. Defendant appeals.
Appellant does not challenge the sufficiency of the evidence to sustain the verdict, so it will be unnecessary to review the evidence. We may say, however, that two disinterested and unimpeached witnesses testified to the act charged in the information.
The only error assigned is that the court erroneously permitted the physician who examined the complaining witness to express his opinion that, judging from the condition in which he found her genital organs, she had had sexual intercourse many times. The manner in which the claimed error arose may best be understood by quoting from the testimony of the physician:
The opinion of the physician was clearly inadmissible under the holding of this court in the case of State v. Acklus, 126 Wash. 65, 217 P. 61, where the court said:
* * *
'The rule appears to be that the opinions of physicians and surgeons may be received to show the physical condition of a person, the effect of physical injuries, by what means such injuries might have been inflicted, and the like, but that it is improper to permit such a witness to express his opinion as to how such injuries were actually inflicted, as that would be trespassing upon the province of the jury.'
Appellant contends the verdict and the judgment in this case cannot stand in the face of that decision. Counsel for the state practically concede the point, for they ask us to repudiate the decision. Upon the record presented here, we do not find it necessary either to reverse the judgment or overrule the Acklus case.
It is our opinion that, upon the record, appellant is in no position to claim prejudice upon the court's ruling. Reverting to the colloquy between the court and counsel, it is to be noted that counsel for appellant, in making his objection, said, 'I have a case on that question.' When asked by the court to produce it, he said, (Italics ours.) Counsel did not ask for a recess so that he might find the authority he had in mind, notwithstanding he or his associate in the trial was one of the attorneys for the defendant in the case of State v. Acklus. Surely, with a few minutes research, he could have found and presented to the court that authority.
From the character of the objection and the vague reference to 'a case on that question,' we think it is apparent that counsel was more interested in 'protecting [his] record'--in injecting error--than he was in getting a correct ruling on his objection. To hold error committed under these circumstances to be prejudicial would make a travesty of the administration of justice. It may not be amiss to note that the counsel appearing for appellant in this court did not participate in the trial of the case.
The judgment of conviction is affirmed. The cause, however, must be remanded, with direction that appellant be resentenced in conformity with the provisions of Laws of 1937, chapter 74, p. 321, § 1, Rem.Rev.Stat.Supp. § 2436.
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State v. Ring, 34552
...The Acklus case has only been cited once in a majority opinion of this court, and then the court did not follow it. State v. Smith, 1944, 20 Wash.2d 53, 55, 145 P.2d 557. It has been cited in two dissenting opinions, one of which suggested it should be followed or overruled. State v. Smith,......