State v. Thomas, 27565.

• Decision Date: 14 November 1939
• Docket Number: 27565.
• Parties: STATE v. THOMAS.
• Court: Washington Supreme Court

95 P.2d 1036

1 Wn.2d 298

STATE v. THOMAS.

No. 27565.

Supreme Court of Washington

November 14, 1939

Department 2.

Lester Edward Thomas was convicted of the crime of carnal knowledge of a female child, and he appeals.

Judgment affirmed.

Appeal from Superior Court, Mason County; John M. Wilson, judge.

Charles T. Wright, of Shelton, for appellant.

R. I Studebaker, Pros. Atty., of Shelton, for respondent.

GERAGHTY Justice.

The appellant was found guilty by the verdict of a jury of the crime of carnal knowledge of a female child of the age of thirteen years and not his wife. After the denial of a motiion for an order of dismissal notwithstanding the verdict or, in the alternative, for a new trial, judgment was entered upon the verdict, and the appellant was sentenced to life imprisonment in the state penitentiary.

The first error assigned by the appellant is the court's refusal to dismiss the action for want of timely prosecution.

Section 2312 of Remington's Revised Statutes provides: 'If a defendant indicted or informed against for an offense, whose trial has not been postponed upon his own application, be not brought to trial within sixty days after the indictment is found or the information filed, the court shall order it to be dismissed, unless good cause to the contrary is shown.'

The information was filed October 14, 1938, and the case was called for trial February 9, 1939. The transcript contains a motion for dismissal, but neither the transcript nor statement of facts shows what disposition was made of the motion. It is to be assumed, of course, that it was denied because the case proceeded to trial. In the state of the record, it will be presumed that the motion was denied on good cause shown, as provided in the statute. Aside from this, we have repeatedly followed the rule stated in State v. Alexander, 65 Wash. 488, 118 P. 645, 646 'After the trial has begun, or when it is about to take place, it is too late for the defendant to move for a dismissal. The statute provides a remedy for the defendant when the prosecutor without cause does not bring the case to trial. It was not intended as a means to escape or a method of delay when the trial is at hand. If the motion had been made prior to the time of trial, the court for good cause shown would refuse a dismissal. When the trial is at hand, the defendant will be held to have waived his right under the statute.'

As was said in State v. Seright, 48 Wash. 307, 93 P. 521, if a plaintiff could exercise his right to a dismissal just Before the trial, so he might during the trial or after a verdict finding him guilty, thus giving the statute an effect directly opposite to the legislative intent and making it a means of delaying the final disposition of the case, when the intention was to hasten that event.

At the close of the state's case, the appellant moved for a nonsuit or, in the alternative, for a directed verdict of not guilty. His motion was denied, and the appellant rested. The denial of this motion is assigned as error.

The evidence produced by the state shows the following facts:

The child against whom appellant is alleged to have committed the crime with which he is charged was, at the time, thirteen years of age and living with her mother, Mrs. McCormick, at Shelton. Her continued absence from the public school she had been attending attracted the attention of Dolores Bader, the school nurse.

A call at the child's home gave rise to some question in Miss Bader's mind, causing her to make a later visit accompanied by Mr. Loop, the school superintendent.

On arriving at the home, they found the appellant and Mrs. McCormick there. To Miss Bader's inquiry why the child was not at school, the mother replied that she was not feeling well and was then in bed.

Mr. Loop testified that, in the course of the conversation, Mrs. McCormick said her daughter was in the family way, and he asked her '* * * if she knew the party that caused it.' She answered. "Yes, her husband." In answer to his inquiry where the husband was, the mother pointed to the appellant, who was sitting at a table in the room.

'Then I directed my question to him. I asked him if he was the cause of the girl's being in a family way, and he said, 'Yes.' 'Have you your wedding papers?' He looked up at Mrs. McCormick and said, 'Ma, have I them?' She said, 'Yes, you have somewhere.' 'Well, I would advise you to find them.'

'Q. Who said that? A. I did. * * *

'Q. Did he attempt to find the papers, Mr. Loop? A. No, I didn't see him move from the table.

'Q. Did Mrs. McCormick attempt to find them? A. No. * * *'

Two physicians of admitted qualification, who had examined the child, testified that their examination disclosed that her hymen had been ruptured, a condition indicating sexual intercourse as its most probable cause.

There was introduced in evidence, over the appellant's objection, a sworn confession made by him after his arrest, in which he admitted having had sexual intercourse with the child, and stated that she had told him that she was pregnant; that he went to the office of the prosecuting attorney in Olympia to inquire about a license to marry her; that he tried to marry, but could not, owing to the refusal of the authorities to issue a license, and concluded by reiterating that he was not married to her. The confession was sworn to Before a notary and attested by witnesses who appeared for the state at the trial.

On this record, it can not be doubted that the state made a prima facie case for the jury.

It is next contended by the appellant that the court erred by admitting in evidence the confession of the appellant without first proving the corpus delicti.

We are of the opinion that, independently of the confession, the evidence was sufficient to warrant the finding of an overt act. But the well settled rule is that the confession of a defendant, along with other circumstances in the case, may be shown to establish the corpus delicti. State v Marselle, 43 Wash. 273, 86 P. 586; State v. Scott, 86 Wash. 296, 150 P. 423, L.R.A.1916B, 844; State v. Gray, 98 Wash. 279, 167 P. 951; State v. Spillman, 110 Wash. 662, 188 P. 915; State v. Wynn, 125 Wash. 398,...