State v. Speer

• Decision Date: 27 March 1950
• Docket Number: 31089.
• Citation: 216 P.2d 203,36 Wn.2d 15
• Parties: STATE, v. SPEER.
• Court: Washington Supreme Court

216 P.2d 203

36 Wn.2d 15

STATE, v. SPEER.

No. 31089.

Supreme Court of Washington.

March 27, 1950

Department 1.

John W. Brisky, Mount Vernon, for appellant.

Reuben C Youngquist, Charles F. Stafford, Jr., George E. McIntosh Mount Vernon, for respondent.

DONWORTH, Justice.

The defendant was charged by information with the crime of abduction based on Rem.Rev.Stat. § 2439(1), as follows: 'He, the said Claude Speer, in the County of Skagit, State of Washington on or about the 30th day of March 1949, without the consent of the father or mother, guardian or other person having legal charge of Margaret * * * willfully, unlawfully and feloniously did take the said Margaret * * *, then and there a female person under the age of eighteen, to-wit: of the age of fourteen years, for the purpose of marriage, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Washington.' (The full name of girl alleged to have been abducted is omitted. She will be referred to herein as Margaret.)

Appellant entered a plea of not guilty and the case came on for trial Before the court sitting with a jury.

After the state's attorney had made his opening statement and the first witness for the state had begun to testify, the defendant, in the absence of the jury, interposed a demurrer to the information on the ground that it failed to specify the person having legal charge of the girl alleged to have been abducted.

The demurrer was overruled, whereupon the trial proceeded and resulted in a verdict and judgment of guilty. The trial court sentenced the defendant to imprisonment in the state penitentiary for a period of not more than ten years. From this judgment and sentence he has appealed to this court.

The facts essential to an understanding of the legal questions presented by this case are essentially undisputed. Appellant resided in Anacortes at the time of the commission of the alleged offense and had been a resident of that city for thirty years. For approximately ten years prior to September, 1948, he had employed Margaret's mother as his housekeeper. During that time appellant and his housekeeper lived together as man and wife and appellant had supported Margaret as though he were her father. In the summer of 1948 Margaret's mother left the employ of appellant (taking Margaret with her) and married her present husband. She is designated in the record as Mrs. Wright.

Immediately upon commencing to live in the home of her stepfather Margaret was mistreated by her stepbrother to such an extent that she was on the verge of a nervous breakdown and finally complained about her mistreatment to appellant who took the matter up with Mr. Robert Crompton, probation officer of Skagit county. Pending a hearing in the juvenile court, Mr. Crompton, in accordance with Rem.Rev.Stat. § 1987-12, as amended in 1945, released Margaret into the custody of Mrs. Eva Fraser, the mother of appellant, pursuant to a mimeographed instrument entitled 'Agreement to Produce Said Minor in Juvenile Court.'

This agreement was executed by Margaret and by appellant on behalf of his mother. It recited that in consideration of the release of Margaret into the custody of Mrs. Fraser, 'who will act as guardian of the child'

'* * * we hereby agree:

'(1) That the above mentioned minor will be produced in the Skagit County Juvenile Court on the date to be set and at the time and place to be set for such hearing in this Cause, by the Court.

'(2) That it is hereby agreed the said minor, while in our custody, will be under strict discipline and on her good behavior until the Court shall have disposed of this Cause for which said Minor child has been detained at the County Courthouse.'

On the same day that the 'Agreement to Produce' was executed Mr. Crompton wrote a letter to Mrs. Fraser authorizing her to call at the Wright home for the purpose of securing Margaret's clothing and school supplies.

The case was heard in the juvenile court of Skagit county on September 23, 1948, at which time appellant and his mother, Mrs. Fraser, were present. Also present at this hearing were Margaret, her mother, her stepfather, the probation officer, a representative of the county welfare department and a deputy prosecuting attorney. The juvenile court, after hearing the evidence, in a verbal order found that Margaret should be declared a dependent child, that the Wright home was an unfit place for her, and that the mother and stepfather were incapable of providing proper maintenance, training and education for the child.

The juvenile court thereupon orally ordered: (1) that Margaret be declared a dependent child and made a ward of the court; (2) that the child be permanently removed from all custody and control of her mother and stepfather; (3) that Margaret be remanded to the temporary custody of Mrs. Fraser at least until the close of the 1949 school year; (4) that appellant, having expressed his willingness to do so, support Margaret in the home of his mother, Mrs. Fraser; and (5) that jurisdiction over the welfare of Margaret be reserved by the court and that the court reserve the right to make any further or additional orders which might be required.

On October 27, 1948, appellant called upon Mr. Crompton to obtain some sort of written authority to hold the girl in Mrs. Fraser's home in case Mrs. Wright should voice any objection. Mr. Crompton thereupon wrote a letter to Mrs. Fraser informing her that an order had been signed by the court placing the care and custody of the child with her. Actually the verbal order of September 23, 1948, had not yet been reduced to writing and signed by the court. This was done December 1, 1948. No copy of this order was ever given to Mrs. Fraser.

Early in March, 1949, appellant discovered that Margaret had become pregnant as a result of sexual relations with a married man who lived near Mrs. Fraser's home. Mrs. Fraser, Margaret and appellant discussed this situation on a number of occasions and it was finally decided that in the best interests of every one concerned appellant should marry Margaret. At that time Margaret was but fourteen years and ten months old and still a ward of the court by virtue of the order of December 1, 1948. Appellant was forty-one years of age. However, appellant's mother, who claimed to be Margaret's guardian, consented to the proposed marriage. According to appellant's testimony his mother was too ill to accompany Margaret and him when they applied for a marriage license.

On March 26, 1949, appellant and Margaret went from Anacortes to Everett where they executed an application for a marriage license. In this application appellant swore that he was thirty-one years old and that his address for the past six months was 'Gen. Del. Pasco, Wash.' Margaret swore that she was eighteen years old and that her address for the past six months was 'Route No. 1, Pasco, Wash.'

After applying for this license they returned to Anacortes. The license was received by appellant from the county auditor of Snohomish county on March 30th. He and Margaret then went to see her aunt at Clear Lake to discuss the proposed marriage. On the same day appellant telephoned long distance to Mr. Crompton, the probation officer at Mount Vernon, to ask him what he thought about the proposed marriage. On cross-examination, his testimony about the telephone call was:

'Q. That is right. So now you want this jury to believe that the only one you thought had to give permission to take this girl, for permission for marriage, was your mother? A. That's right.

'Q. And in spite of that you called Mr. Crompton to verify it or, as I understand it, 'to get his backing'? A. To get his backing if her mother put up any fuss.

'Q. Did Mr. Crompton tell you at that time, at the time of the telephone call that if you would marry this girl he would probably get the authorities to pick you up? A. No, he did not.

'Q. Did he tell you to get her right back and get her in school? A. He said I should come back to Skagit County.

'Q. Did he tell you to marry? A. He didn't tell me to marry; I didn't ask him to.

'Q. Did he tell you emphatically not to marry her? A. I don't remember whether he said not to in that instance.

'Q. Was this conversation friendly or authoritative on his part? A. Well, it started out friendly and finally he said he was mad. 'Q. How did it end? A. It ended up 'I am mad. I won't discuss it with you.'

'Q. Didn't he say to bring that girl back? A. He said to bring her back to Skagit County.

'Q. And if you didn't bring her back he would advise the authorities? A. No.

'Q. And after you finished talking to him you knew you didn't have his permission. A. I didn't ask for permission.

'Q. Did you know you didn't have his backing? A. I knew he wouldn't back us up if her mother put up a fuss.

'Q. You knew very well at that time you didn't have premission from the authorities. A. Yes.

'Q. Did you ever ask Judge Brickey for permission to marry this girl? A. No, I did not.' (Italics ours.)

Mr. Crompton's version of his conversation differs from that of appellant in some respects. He testified on direct examination:

'A. On Wednesday afternoon, the 30th of March, 1949, there was a call, apparently from a pay station in Seattle because I distinctly heard the girl say 'Deposit 60 cents for three minutes' conversation,' and the conversation opened by saying, 'Is that Mr. Crompton?' and I said, 'yes'. And he said, 'This is Claude Speer. I have just arrived in Seattle with Margaret and we want to get your and the Court's permission to get married.'

'Q. What was your answer to that, Mr. Crompton? A. I then told Mr Speer--first of all, I asked him how old he was and how...