State v. Stuhr

• Decision Date: 01 December 1939
• Docket Number: 27621.
• Citation: 96 P.2d 479,1 Wn.2d 521
• Parties: STATE v. STUHR.
• Court: Washington Supreme Court

96 P.2d 479

1 Wn.2d 521

STATE v. STUHR.

No. 27621.

Supreme Court of Washington

December 1, 1939

Department 1.

Harry Markus Stuhr was convicted under an information charging him with unlawfully taking indecent liberties with and on the person of a female child under the age of 15 years, and he appeals.

Affirmed.

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

Will G Beardslee and George F. Ward, both of Seattle, for appellant.

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

ROBINSON Justice.

Chapter 74, Laws of 1937, p. 321, § 2, effective June, 1937, amended Rem.Rev.Stat. § 2442, to read as follows:

'(1) Every person who shall take any indecent liberties with, or on the person of any female of chaste character, without her consent, shall be guilty of a gross misdemeanor;

'(2) Every person who shall take any indecent liberties with or on the person of any female under the age of fifteen years, or make any indecent, or obscene exposure of his person, or of the person of another, whether with or without his or her consent, shall be guilty of a felony, and shall be punished by imprisonment in the state penitentiary for not more than twenty years, or by imprisonment in the county jail for not more than one year.' Rem.Rev.Stat. (Supp.) § 2442.

In March, 1939, the state filed an information against the appellant, charging as follows: 'He, said Harry Markus Stuhr, in the County of King, State of Washington, on or about the 18th day December, 1937, wilfully, unlawfully and feloniously then and there did take indecent liberties with and on the person of one Jane Doe, then and there a female child under the age of fifteen years, and not then and there the wffe of the said Harry Markus Stuhr.'

The following is, in substance, the evidence produced by the state at the trial: Roy Mahoney, a member of the detective division of the Seattle Police Department, testified that, while going to lunch on that day, he noticed the defendant and a little girl, and that defendant's actions seemed suspicious; that he followed them and saw them go into an alley; that he went around to the other end of the alley, and they were not in sight. On one side of the alley, there was a row of garages of which all but one were padlocked. He opened the door and saw the defendant and the girl in a dark corner. The evidence as to what was taking place is so revolting that we shall not set it out in this opinion. It will be sufficient to say that, if true, it described the commission of an independent and unnatural crime. Officer Mahoney grappled with defendant, but he broke away, the officer in pursuit. During the chase, the officer fired three times, hitting the defendant on each occasion, the third shot bringing him down. The little girl, whom the officer described as being seven or eight years old, with blond hair and wearing a red coat and a blue dress, fled and was never found or identified. The defendant was so severely wounded that it seems extraordinary that he survived.

Officer Roy Davis testified that, two days later, on December 20th, defendant denied that he had done the specific act attributed to him by Officer Mahoney, but admitted another, describing it, which would, undoubtedly, constitute the taking of an indecent liberty with, and upon, the body of the child. Captain Miller, of the Seattle Police, was present at that interview and fully corroborated the testimony of Davis. Dr. Rickles, a hospital physician, testified that the defendant made the same statements to him sometime between the 22nd and 27th of December. Later, after being released from jail, the defendant told Dr. Rickles that the impulse to do such things came upon him from time to time.

Robert Riley heard the shots and saw the defendant running, with Officer Mahoney in pursuit. Esther Linden heard a shot and saw a man, with a revolver in his hand, running north up the alley. The defendant had passed beyond her vision. She saw the little girl running in the opposite direction. 'She was about ten to twelve years of age and had on a red coat and was blond.'

Albert Wyse, a resident of the neighborhood, heard the shooting and saw the little girl running down the alley. He said she was blond, wore a red coat, and seemed ten to eleven years of age.

There were one or two other witnesses called, but the above is the substance of the state's case. When the state rested, the defendant moved to dismiss, on the ground that the state had failed to prove the crime alleged in the information. The motion was denied. The defendant then made his opening statement to the jury in person. In so doing, he, of course, did not subject himself to cross-examination. We do not know what advantage, if any, he took of this opportunity, since his statement is not in the record. He did not take the witness stand, nor was evidence offered on his behalf other than a hospital chart; this, presumably, to show that, while in the hospital, his condition was so serious that he ought not to be held accountable for what he said to the police officers and the attending physician.

The appellant contends that his demurrer to the information should have been sustained. It is urged that the information was too indefinite and did not sufficiently inform him as to the crime charged. The general rule is set out in State v. Randall, 107 Wash. 695, 182 P. 575, to the effect that it is sufficient, in charging a crime, to follow the language of the statute. To that rule we have recognized exceptions in the case of general statutes, such as those covering conspiracy, State v. Scollard, 126 Wash. 335, 218 P. 224, 32 A.L.R. 1082; forgery, State v. Kuluris, 132 Wash. 149, 231 P. 782; and extortion, State v. Pettett, 141 Wash. 668, 252 P. 104.

The question here presented is--Are the words 'indecent liberties,' as used in Rem.Rev.Stat. (Supp.) § 2442, so indefinite in meaning that an information must go beyond the statute and plead the specific act or acts relied on? In so far as we are advised, the question is one of first impression in this state, but there are persuasive decisions in a number of other jurisdictions. One of the leading cases is: State v. Kunz, 90 Minn. 526, 97 N.W. 131. In this opinion, it is said: '* * * for the term 'indecent liberties,' when used with reference to a woman, old or young, is self-defining; and it would be as unnecessary and as indecent to allege the defendant's particular acts as it would be, if he were charged with rape, or carnally knowing or abusing a female child under the age of consent, to set forth the evidence in the indictment.'

The supreme court of Utah quoted the about excerpt from the opinion of State v. Kunz, supra, in State v. Macmillan, 46 Utah 19, 145 P. 833, 834, and added: 'We thoroughly agree with the Supreme Court of Minnesota that the term 'indecent liberties,' as used in the statute, is clearly self-defining. What more could be said, except to state the evidence which proves or establishes the offense? We think that every person of the most ordinary intelligence and understanding, who is familiar with merely the rudiments of the English language, understands what is meant when he, or any one else, is charged with having taken indecent liberties with the person of a child. To say more is merely to explain what was done, which, like in a charge of carnal knowledge, or of assault with intent to have carnal knowledge, is not necessary. We think the information was sufficient.'

This holding is reaffirmed in State v. Therkelson, 48 Utah 629, 161 P. 59. See, also, People v. Hicks, 98 Mich. 86, 56 N.W. 1102; Dekelt v. People, 44 Colo. 525, 99 P. 330. The state cites State v. Farnham, 119 Me. 541, 112 A. 258, also, but, as we read the opinion, it is somewhat favorable to appellant. We are of the opinion that the information was sufficient.

The appellant's assignment as to Instruction No. 2 raises a closely related question. This instruction reads as follows 'The term 'indecent liberties' is incapable of a precise legal definition. However, for the purpose...