State v. Thomas, 28106.

• Decision Date: 05 May 1941
• Docket Number: 28106.
• Citation: 8 Wn.2d 573,113 P.2d 73
• Parties: STATE v. THOMAS.
• Court: Washington Supreme Court

113 P.2d 73

8 Wn.2d 573

STATE v. THOMAS.

No. 28106.

Supreme Court of Washington

May 5, 1941

Department 1.

J. W Thomas was convicted of sodomy, and he appeals.

Judgment affirmed.

Appeal from Superior Court, Cowlitz County; Howard J. Atwell, judge.

George E. O'Bryon, of Olympia, for appellant.

Shirley R. Marsh, Asst. Atty. Gen., and H. Jerard Imus and Joe L Johnson, both of Kelso, for respondent.

DRIVER Justice.

In a trial to a jury, the appellant was convicted on each of two counts of an information charging him with the crime of sodomy. His motion for a new trial was denied. He has appealed from the judgment and sentence entered on the verdicts. As the appellant does not question the sufficiency of the evidence to sustain the verdicts, the circumstances of the offenses will not be stated except in connection with the discussion of the assignments of error.

The governing statute, Laws of 1937, chapter 74, p. 322, § 3 Rem.Rev.Stat. (Sup.) § 2456, provides that, when an act of sodomy is committed upon a child under the age of fifteen years, the crime shall be punishable by imprisonment in the state penitentiary for not more than twenty years, but that otherwise the maximum term of imprisonment shall be ten years.

The first court of the information charged that appellant voluntarily submitted 'to be carnally known with the mouth and tongue by one [certain] male child * * * of the age of fourteen years; * * *' The second count accused appellant of the commission of a like offense with a certain female child of the age of thirteen years. Over objection, the prosecuting witnesses testified as to their own respective ages. Appellant contends that such testimony was hearsay, not the best evidence, and should have been excluded.

It is a general rule, supported by the overwhelming weight of authority, that a witness is competent to testify regarding his own age although his knowledge of that fact necessarily must be based largely upon statements made to him by others. 20 Am.Jur. 414, § 472; 22 C.J.S., Criminal Law p. 1233, § 722, subd. a; Annotation, 39 A.L.R. 376. The rule applies to criminal prosecutions for rape and other crimes in which the age of the witness is a constituent element of the offense. 1 Wharton's Criminal Evidence, 11th Ed., 718, 721, § 470. It has been recognized and approved by this court. See State v. Rackich, 66 Wash, 390, 119 P. 843, 37 L.R.A., N.S., 760, Ann.Cas.1913C, 312.

Appellant does not dispute the rule. He denies that it is applicable in the instant case. The prosecuting witnesses were both wards of the juvenile court, had lived away from home for a good many years prior to the trial, and, therefore, appellant maintains, it must be assumed that their testimony was not based upon the sources of information contemplated by the rule, namely, reputation in the family or statements made by the parents.

Every witness is presumed to know his own age and the basis of his knowledge is a matter for cross examination. State v. Bowser, 21 Mont. 133, 53 P. 179; State v. Scroggs, 123 Iowa 649, 96 N.W. 723. In the instant case, counsel for appellant did not see fit to inquire on cross examination as to the source of information of either of the prosecuting witnesses. Furthermore, it appears from the record that, although they had been living away from home, each of them had access to the usual family sources of information. The girl went home for occasional visits, and the boy was in touch with his father and sometimes talked with him, in one instance, it appears, only two or three months prior to the trial.

In support of his contention, appellant directs our attention to People v. Colbath, 141 Mich. 189, 104 N.W. 633. In that case, the defendant was charged with statutory rape. The age of the prosecutrix was established by the testimony of an elder sister. On cross examination of the prosecutrix, defendant's counsel attempted to elicit from her an admission that she was over the statutory age of consent. She stated, however, that her mother had died when she was two years old, she had had no information regarding her age from any other family source, and her opinion about it was based solely upon statements made to her by a woman, not a relative, with whom she had lived as a child. The court concluded that she could not testify as to her age. The factual difference between that case and this one is so plainly apparent as to require no further comment. Here, we think, the testimony in question was properly admitted.

Appellant called as a witness a Mrs. Blanche Wood, and the deputy prosecutor objected on the ground that her name had not been included in any list of witnesses served upon him as required by Rem.Rev.Stat. § 2050. The objection was sustained. The appellant then made formal offers of proof, but the court refused to permit the witness to testify. This, the appellant assigns as error.

The trial opened June 3, 1940. Mrs. Wood was subpoenaed on June 5th and was called to testify the following day. The record does not show when appellant's counsel first learned of the witness, nor is it clear as to why she was not included in appellant's list of witnesses. The prosecuting attorney did not claim surprise nor request a continuance to afford an opportunity to interview her.

In State v. Martin, 165 Wash. 180, 4 P.2d 880, under circumstances generally similar to those of the case at bar, this court saw fit to clarify its former construction (see State v. Sickles, 144 Wash. 236, 257 P. 385) of the statutory provision requiring service of a list of the defendant's witnesses upon the prosecuting attorney. It was an en banc decision by a very much divided court. (Three judges signed the prevailing opinion, four separately specially concurred, and two dissented.) However, there has been no subsequent departure from either its holding or its reasoning. There, the state objected to the defendant's witnesses on the sole ground that no list containing their names had been served upon the prosecuting attorney. We held that the trial court had erred in declining to permit them to testify. Chief Justice Tolman, who wrote the principal opinion, adopted this line of reasoning:

The only purpose of the statute (§ 2050) is to safeguard the state against surprise defenses and afford it time and opportunity to attack the testimony of unscrupulous defense witnesses. If the calling of a witness without notice does not result in disadvantage to the state, there is no reason at all to penalize the defendant for his noncompliance with the statute, no matter how inexcusable it may be. Even where the state has been put to a disadvantage, the trial court should not exclude the testimony of defendant's unlisted witnesses, but should give the state whatever time it may reasonably require to meet the unexpected situation. Whenever it becomes necessary, the superior court should resort to its disciplinary powers to compel observance of the statute.

The factual situation in the Martin case, to which Chief Justice Tolman applied this reasoning, was, in the language of the opinion, as follows [165 Wash. 180, 4 P.2d 882]:

'* * * (1) the defendant failed to serve a list of his witnesses, though (2) he knew of the witnesses and had the intention to call them long enough Before the trial to have enabled him to serve a list; (3) he offered no excuse for his failure to serve a list; (4) witnesses for the defendant present at the trial, in response to subpoenas issued at the direction of the court, were not permitted to testify because no list had been served; (5) the defendant, in his offer of proof, stated what it was expected the witness would testify to; and (6) such testimony would have been competent and material and not cumulative to such an extent as to be objectionable; and (7) the state did not suggest that it would be at any disadvantage by reason of surprise or lack of opportunity to interview the witnesses or investigate their reputation and character.' (Italics ours.)

A comparison of the foregoing quotation with our statement earlier in this opinion regarding the circumstances of the calling of the witness, Mrs. Wood, by appellant, will disclose that, with one exception, each of the seven factual elements of the Martin case either has a counterpart in the case at bar or has in this case a corresponding element more favorable to appellant (defendant). The sole possible exception is number (6) (that the proffered testimony was 'competent and material').

If element number (6) is the same in both cases, then, manifestly, the Martin case controls this one. In other words, if the testimony which the appellant offered to adduce by Mrs. Wood was competent and material, then the trial court erred in refusing to permit her to testify. Before we examine appellant's offer however, we wish to call attention to another en banc decision of this court (with only one judge dissenting), State v. Lunsford, 163 Wash. 199, 300 P.2d 529, 530, as we think it will serve to circumscribe further the question under consideration.

In that case, the defendant called as a witness a woman who had been subpoenaed but had not been included in the list served upon the state. The trial court refused to let her testify, but the defendant failed to make any offer of proof. We held that the court had not abused its discretion for the reason stated in the following excerpts from the opinion:

'Upon such a situation arising as that now under discussion, an offer of proof should be made, stating briefly the substance of the testimony which will be given by the witness whose testimony is desired. There is nothing in the record Before us from which it can be determined that Mrs. Dennison would have testified to any facts material to...