State v. Wynn, 25029.

• Decision Date: 23 July 1934
• Docket Number: 25029.
• Citation: 34 P.2d 900,178 Wash. 287
• Court: Washington Supreme Court
• Parties: STATE v. WYNN.

34 P.2d 900

178 Wash. 287

STATE v. WYNN.

No. 25029.

Supreme Court of Washington

July 23, 1934

Department 1.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Howard Wynn was convicted of having had carnal knowledge of two female children, and he appeals.

Affirmed.

See also, (Wash.) 30 P.2d 940.

Joseph H. Smith and A. E. Dailey, both of Everett, for appellant.

Charles R. Denney and Francis W. Mansfield, both of Everett, for the State.

STEINERT Justice.

The information herein, consisting of two counts, charged appellant with the crimes of having had carnal knowledge of two female children. Conviction on both counts resulted in a judgment and sentence, from which this appeal was taken.

The two children involved were, respectively, eight and nine years of age. The evidence in the case presents a revolting story of repeated acts of nauseating depravity. We need not recount its details nor introduce by name any of the parties or witnesses. The evidence presented to the jury could hardly have produced any other verdict than the one returned by that body. There is, in fact, no assignment of error as to anything occurring at, or prior to, the trial. The only question here raised concerns the correctness of the ruling of the court in denying a motion for new trial because of newly discovered evidence. The motion was based wholly upon the affidavit of one of the little girls and those of her parents, the purport of which was to the effect that material portions of the testimony given by the two children at the trial were untrue. Counter affidavits of the other girl and her mother were submitted by the prosecutor. After a careful consideration and analysis of all the affidavits, the court denied the motion.

A new trial will not be granted for newly discovered evidence where the only purpose of such evidence is to impeach or discredit evidence produced at the trial. This rule is firmly established by many decisions of this court. Orr v Schwager & Nettleton, 74 Wash. 631, 134 P. 501; State v. Hodoff, 88 Wash. 413, 153 P. 377; State v. Wilcox, 114 Wash. 14, 194 P. 575; State v. Kallas, 134 Wash. 192, 235 P. 357.

The specific contention here made by appellant goes somewhat beyond the mere claim of newly discovered evidence. It is contended that one prosecutrix having repudiated her testimony in certain vital respects, the basis of the conviction was thereby destroyed, and a new trial should therefore have been granted. The conclusion does not inevitably follow its premise. Recantation by an important witness of his or her testimony at the trial does not necessarily, or as a matter of law, entitle the defendant to a new trial. The determination of such matters rests in the sound discretion of the trial court and its action will not be set aside except for clear and manifest abuse. The trial judge is in a peculiarly advantageous position, under the prevailing circumstances, to pass upon the showing made for a new trial. He had the benefit of observing the witnesses at the time of the trial, is able to appraise the variable weight to be given to their subsequent affidavits, and can often discern and assay the incidents the influences, and the motives that prompted the recantation. He is, therefore, best qualified to determine what credence or consideration should be given to the retraction, and his opinion is accordingly entitled to great weight. If the rule were otherwise, the right of new trial would depend on the vagaries and vacillations of witnesses rather than upon a soundly exercised discretion of the trial court. The untrustworthy character of recanting testimony is well known by those experienced in the trial of criminal cases, and when such testimony is offered it calls for a rigid scrutiny. When the trial court, after careful consideration, has rejected such testimony, or has...