State v. Wood

• Decision Date: 02 December 1903
• Citation: 33 Wash. 290,74 P. 380
• Court: Washington Supreme Court
• Parties: STATE v. WOOD.

74 P. 380

33 Wash. 290

STATE v. WOOD.

Supreme Court of Washington

December 2, 1903

Appeal from Superior Court, Douglas County; C. Victor Martin, Judge.

Thomas S. Wood was convicted of incest, and appeals. Affirmed.

Martin & Grant and W. E. Southard, for appellant.

E. T Trimble and R. S. Steiner, for the State.

FULLERTON C.J.

The appellant was informed against by the prosecuting attorney of Douglas county for the crime of incest, committed upon the person of his own daughter. He was tried upon the charge, found guilty, and adjudged to serve a term of years in the State Penitentiary. From the judgment and sentence he appeals.

Of the numerous errors assigned there are none that can be reviewed on the record made by the appellant. They all go to questions which must be brought to this court by a bill of exceptions or statement of facts over the certificate of the trial judge, and the appellant's record on appeal consists of a transcript of certain of the files and journal entries made in the course of the trial in the court below, brought here over the certificate of the clerk of the trial court. It is true that in this transcript there are a number of affidavits which suggest the questions argued at the bar and in the briefs, but we have said repeatedly, and here say again, that evidentiary matter cannot be brought into this court in this way. Affidavits, like all other evidence introduced at the trial of the cause, must be brought into this court by a bill of exceptions or a statement of facts, and this is the rule in criminal as well as in civil cases. State v Anderson, 20 Wash. 193, 55 P. 39; Chevalier & Co. v Wilson, 30 Wash. 227, 70 P. 487. But, while the record brought here by the appellant fails to present the question suggested by him, the prosecuting attorney, in a spirit of fairness that is commendable, has made available to him the only question among his assignments which he concedes a correct record would substantiate, namely, did the court err in permitting the prosecuting witness to testify to acts of sexual intercourse between herself and the defendant occurring prior to the act charged in the information? The general rule undoubtedly is that evidence of a distinct and different offense from that for which the defendant is on trial is inadmissible, but that rule has no application to cases of the character of the one before us. In prosecutions for adultery, fornication, rape upon one under the age of consent, and incest it has been held uniformly that acts of sexual intercourse occurring between the parties prior to the act charged in the information may be proved. The reason for the rule is well stated in State v Markins, 95 Ind. 464, 48 Am. Rep. 733, where it is said: 'It is a rule of elementary logic, as well as of rudimentary law, that evidence which tends to establish facts rendering it antecedently probable that a given event will occur is of material relevancy and strong probative force. It is more probable that...