State v. Thomas, 27565.

• Court: United States State Supreme Court of Washington
• Writing for the Court: GERAGHTY, Justice.
• Citation: 1 Wn.2d 298,95 P.2d 1036
• Parties: STATE v. THOMAS.
• Docket Number: 27565.
• Decision Date: 14 November 1939

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. [95 P.2d 1037]

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: [1 Wn.2d 300] '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.

[1 Wn.2d 301] 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. [95 P.2d 1038]

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...