State v. Williams , 1923 Wash. LEXIS 858 ( 1923 )

Tolman, J.

— Appellant has appealed from a conviction on the charge of incest. He urges as ground for reversal:

(1) That there was not sufficient evidence of the act charged to go to the jury. .A careful reading of the:evidence offered by the state convinces us that it was ample to carry the case to the jury and to sustain the verdict of guilty.

. (2)' That the date of the alleged crime was not proven. The state offered evidence to the effect that the act constituting the crime was committed frequently and habitually over a considerable period of time, and then elected to rely for conviction upon a date specified as. “on or about the 15th day of January, 1922.” The prosecuting witness testified that the act was committed every three or four days over a period beginning some time prior to this date and ending after-wards, but could not say positively that there had been such an act on the exact day named. We deem this sufficient. State v. Biggs, 57 Wash. 514, 107 Pac. 374.

(3) It is claimed that the failure of the state to prove the marriage between appellant and the mother of the prosecuting witness, and that she was therefore Ms legitimate daughter, is fatal. The relationship between the parties was a fact like any other fact, to be proven to the satisfaction of the jury. The state, by its information, alleged that the prosecuting witness was then and there the daughter of the accused, and followed with proof of the death of the mother, and that the appellant was the father and lived with his motherless children, all constituting a family group. The fact that the appellant was the father was not questioned, but was more strongly established by cross-examination, and the evidence thereof was sufficient to go to the jury at the close of the state’s case. On Ms defense, appellant clearly admitted the relationship, and, if there had been anything wanting in the state’s ease, it might very well be held that the rule so often applied in civil cases should apply here, and having failed to stand on his motion for a discharge, or db rected verdict at the close of the state’s case, all of the facts shown in the entire case must now be considered. We cannot take kindly to the idea that, if there was no marriage between the parents proven, then the prosecuting witness must be assumed to.be illegitimate, and therefore that she had no relations in the eye of the law, no father, and sexual intercourse between her natural father and herself would not be incest. She was at all times acknowledged as a daughter, and the presumption must be that she was a legitir mate daughter of the accused, and if she were a daughter in fact, whether legitimate or illegitimate, intercourse would constitute the crime of incest. Wadkins v. State, 58 Tex. Cr. 110, 124 S. W. 959.

(4) • It is claimed that the state failed to prove the venue. It is true that there was no direct testimony to the effect that the act was committed in Kitsap county. The testimony on the part of the state was to the effect that the crime was committed in the home of the accused at Kitsap Lake. If we are to disregard the voluntary testimony of the appellant, who fixed that home as being at Kitsap Lake, Kitsap county, and that of one of his character witnesses, who likewise located the home, where the alleged crime was committed, in such a way that it could not be outside of the limits of Kitsap county, which, as already indicated, we are. not disposed to regard as necessary, since appellant did not stand on his motion made at the close of the state’s case, still it appears to be a matter of common knowledge that Kitsap Lake is in Kitsap county, and if that be true, then we must take judicial notice of the fact. 18 R. C. L. 1080. We think the venue was sufficiently proven under the rule which has long been followed in this state. State v. Fetterly, 33 Wash. 599, 74 Pac. 810; State v. Gilluly, 50 Wash. 1, 96 Pac. 512; State v. Chin Sam, 76 Wash. 612, 136 Pac. 1146; and State v. Dooley, 82 Wash. 483, 144 Pac. 654.

Finding no error, the judgment appealed from is affirmed.

Main, C. J., Fullerton, Parker, and Pemberton, JJ., concur.