State v. Winfree

• Decision Date: 09 June 1931
• Parties: STATE v. WINFREE.
• Court: Oregon Supreme Court

299 P. 1005

136 Or. 531

STATE v. WINFREE.

Supreme Court of Oregon

June 9, 1931

In banc.

Appeal from Circuit Court, Deschutes County; T. E. J. Duffy, Judge.

Jeff Winfree was convicted of rape, and he appeals.

Reversed and remanded.

N. G. Wallace, of Bend (A. J. Moore, of Bend, on the brief), for appellant.

Ross Farnham, Dist. Atty., of Bend, for the State.

CAMPBELL J.

On November 14, 1930, the defendant was indicted by the grand jury of Deschutes county for the crime of rape. The charging part of the indictment reads as follows: "The said Jeff Winfree on the Twentieth day of July, A. D. 1930, in the said county of Deschutes and the State of Oregon, then and there being, did then and there carnally know Ruby Winfree, a female child under the age of sixteen years, the daughter of said Jeff Winfree, contrary" etc. On this indictment he was tried and convicted and sentenced to the penitentiary for twenty years. Defendant appeals.

The defendant and his wife, the parents of Ruby Winfree, the prosecutrix, had not been living together for about five years previous to the time of the alleged crime. At the time of the separation, the mother moved to the state of Texas, taking the daughter, Ruby, with her, where they lived until September, 1929, when they returned to the state of Oregon. On their return to Oregon they lived with a married sister of Ruby at Sweet Home in Linn county. Ruby's brother, Newt, remained with his father in Deschutes county, Or., where the father was employed as a United States rural mail carrier. On June 29, 1930, after some correspondence with a Lucille Montgomery, a social worker connected with the Red Cross of Linn county, Ruby was turned over to her father, who took her to live with his mother, Ruby's grandmother, at Bend, Or., where she remained until the month of September of the same year.

The defendant owned a farm in Crook county adjoining the line of Deschutes county; the residence on said farm being one-half mile from the county line. The testimony of the prosecutrix is that on the evening that the alleged crime was committed she and the defendant left the residence on defendant's farm and drove towards Bend. After about five minutes on the road, the truck in which they were riding was turned off on a side road and stopped. This is the place where she claims the offense was committed. There is also the testimony of Newt Winfree that the road leading from the residence on the farm towards Bend crosses the county line into Deschutes county one-half mile from the residence.

The bill of exceptions shows six assignments of error.

1. This assignment of error is predicated on certain assertions made by the district attorney in his opening statement and the testimony submitted to prove these assertions. The learned district attorney made a very fair and comprehensive opening statement not subject to adverse criticism regarding the crime itself and the relation of the parties, the place of their abode, the circumstances of their life, and the details of how Ruby came into the custody of the defendant. His statement up to this point was unobjectionable. However, in the course of his remarks he made the following statement: "The agreement made between the Red Cross secretary and Mr. Winfree was that Ruby was to come over to Bend and live with his mother who was there with him. He was to bring Ruby over to Bend and she was to reside with his mother and he was to support her. It was definitely understood that Ruby was not to go out to the ranch at Hampton Buttes at all unless the grandmother accompanied her. That she was to be in the grandmother's charge while up here in Bend and her father would support her."

The testimony of Miss Montgomery and of the prosecutrix was admitted over objection in support of said statement. This was introducing an unnecessary and prejudicial element against the defendant. No explanation was made as to how or why the secretary of the Red Cross had any jurisdiction to or did impose terms on the father of the child regarding her custody. This inhibition, so imposed without explanation, could have but one effect on the minds of the jurors, and that is, that at the time Ruby was turned over to defendant his reputation for morality was bad. The Red Cross secretary imposed no restriction as to any other company Ruby might associate with. This amounted to a covert attack on defendant's character. What the law will not permit to be done directly, it will not tolerate by indirection. Were this a civil case for breach of contract, it might be material to show what the contract was. In the instant case, the only question for the determination of the court and jury was: Did the defendant commit the act charged in the indictment? That part of the opening statement above quoted, regarding the restriction of Ruby's going to the farm unaccompanied by her grandmother, together with the evidence admitted to support the same, was prejudicial error.

2. This assignment of error is predicated on the ruling of the court in permitting Dr. Woodworth, a witness for the state, to answer over objection the following questions:

"Q. Well now, Doctor, what was the purpose of the visit of Ruby Winfree to your office in Albany on September 9th of this year? A. To determine at the request of Miss Montgomery whether or not Miss Winfree was pregnant."

"Q. What was the purpose of the examination? A. The examination was to determine whether she was or was not pregnant."

Dr Woodworth was the county health officer of Linn county. The prosecutrix was taken to the doctor by Lucille Montgomery for the purpose of having him make a physical and medical examination for a certain purpose. These questions and answers were therefore proper and unobjectionable. The questions were simply to ascertain at whose request and for that purpose the doctor had made the examination, to the result of which he was about to testify. These were matters that the court and jury had a right to know.

3. When the state rested its case in chief, defendant moved for a directed verdict on the grounds: (1) That the venue of the alleged crime had not been proved; (2) that the indictment does not state facts sufficient to constitute a crime; (3) or that, if it does, then it states two crimes rape and incest.

The evidence shows that the crime was committed, if at all, either in Deschutes county or within one mile of the boundary thereof. Or. Code 1930, 13-306; State v. Lehman, 130 Or. 132, 279 P. 283.

Rape is defined:

"If any person over the age of sixteen years shall carnally know any female child under the age of sixteen years * * * shall be punished. * * *" Or. Code 1930, 14-220.

"A person convicted of a rape upon his sister, of the whole or half-blood, or upon his daughter or the daughter of his wife, shall be punished. * * *" Or. Code 1930, 14-221.

Incest is defined as:

"If any persons, being within the degree of consanguinity within which marriages are prohibited by law, shall intermarry with each other, or shall commit adultery or fornication with each other, such person or either of them * * * shall be punished. * * *" Or. Code 1930, 14-733.

A female under sixteen years of age is incapable of consenting to an act of carnal knowledge. Incest is the voluntary act of carnal knowledge with the consent of both.

The only words of the statute left out of the...