State v. Fetterly

Fullerton, C. J.

The appellant, William D. Fetterly, was informed against for the crime of rape, alleged to have been committed upon the person of his stepdaughter, a female child of the age of sixteen years. He pleaded not guilty to the information, and a trial was had thereon, resulting in a verdict of guilty, on which he was adjudged guilty and sentenced to a term in the penitentiary.

The appellant first assigns that the court erred in allowing the prosecuting witness to testify to acts of carnal intercourse occurring between herself and the appellant at times other than the one charged in the information. In State v. Wood, ante, p. 290, 74 Pac. 380, we held that, in a prosecution for incest, it was permissible for the state to prove acts of incestuous intercourse between the defendant and the prosecuting witness occurring prior to the specific act charged in the information; this, not to prove a substantive offense upon which a conviction might be had, but on the same principle that evidence of' the antecedent conduct and demeanor of the parties towards each other is admissible, as tending to show the probability of the commission of the specific act charged, and as corroborative of the testimony of the prosecuting witness. In principle there is no distinction, in this respect, between a prosecution where the charge is incest and a prosecution where the charge is rape upon a female child under the age of consent. The same reason that renders the testimony admissible in the one case renders it admissible in the other, and such is the effect of the authorities. State v. Wood, supra, and cases cited. Also, State v. Robinson, 32 Ore. 43, 48 Pac. 357; People v. Abbott, 97 Mich. 484, 56 N. W. 862, 37 Am. St. 360; People v. Castro, 133 Cal. 11, 65 Pac. 13; State v. Peres, 27 Mont. 358, 71 Pac. 162.

The appellant argues, however, that the information in this case charges a rape by force, and against the will of the prosecutrix, and that the rule above announced has no application for that reason. The information, it is true, does so charge, hut it is also true that it charges that the prosecutrix was of an age when she was incapable of giving consent; and in such a case the allegations of force and nonconsent are mere surplusage, except in so far, perhaps, as proof that the carnal act was committed by the means of the one, or without the other, might tend to aggravate the offense. But the mere carnal knowledge of a female child under the age of consent is rape, whether the act he committed with or without force, or with or without consent, and the nature of the crime, or the proof required or permitted to sustain it, is not changed by the fact that the information charges the unlawful act to have been committed by force. State v. Hunter, 18 Wash. 670, 52 Pac. 247; State v. Horne, 20 Ore. 485, 26 Pac. 665.

The objection in this connection that the information does not allege that the prosecutrix was under the age of consent is without merit. The age of consent in this state is eighteen years. The information alleges that the prosecutrix was, at the time of the offense, “of the age of 16 years.” This is good as against an objection-ma'de for the first time after verdict. People v. Gardner, 98 Cal. 127, 32 Pac. 880; State v. Newton, 44 Iowa 47.

It is next claimed that the state failed to prove the venue of the crime; but it was not necessary, in order to sufficiently prove the venue, that some witness testify directly that the crime was committed in the designated place. It is enough if evidence incidentally given on the trial of the cause shows that the venue is properly laid. Here, the prosecuting witness testified that, at the time of the commission of the acts constituting the offense, she was living with the defendant and her mother “at 20th and Horman streets ... in the city of Seattle,” and that the act occurred at their house. This was sufficient proof of venue. The court knows judicially that the city of Seattle is in King county, state of Washington, and proof that the crime complained of was committed in that city is proof that it was .committed within the jurisdiction of the court before which the defendant was tried.

A physician was permitted, over the objection of the appellant, to testify that the prosecutrix, subsequent to the time of the alleged rape, but within the period of gestation, had suffered a miscarriage. This is claimed as error, but we think the evidence competent. It was incumbent upon the state to prove that the crime alleged in the information had actually been committed, as well as the fact that the appellant had committed the crime. Proof that the prosecutrix gave birth to a child, or suffered a miscarriage, while within the age of consent, is proof that she had been carnally known by some one while within that age; and in this case this evidence was proof that the crime charged had been committed. We think, also, it was corroborative of the evidence of the prosecution to the effect that the defendant was the guilty party. It conclusively proves her testimony to the effect that the crime charged was committed, and the truth of that lends credence to her testimony to the effect that the person she names is the guilty party. State v. Robinson, 32 Ore. 43, 48 Pac. 357; People v. Flaherty, 27 N. Y. App. Div. 535, 50 N. Y. Supp. 574.

It is complained that the evidence is insufficient to justify the verdict, and in this connection the appellant urges that the prosecutrix should be corroborated, and that here there was no corroborative evidence. The prosecutrix testified directly and positively to all of the essential elements necessary to constitute a complete offense, and, if her testimony is to be believed, the appellant is guilty of the crime charged. It may be that she was not corroborated in every particular, yet, notwithstanding this, the truth or falsity of her statements was a question for the jury. In this state there is no statute requiring that the prosecutrix be corroborated. State v. Roller, 30 Wash. 692, 71 Pac. Rep. 718. When, therefore, the evidence of the prosecutrix is, if true, sufficient to convict the defendant, and the jury find it to be true, this court cannot, without a usurpation of its authority, hold that the evidence is insufficient to warrant a conviction.

Two witnesses for the appellant were asked on cross-examination concerning their testimony given on a former trial of the cause, and denied making certain statements imputed to them by the questions asked. In rebuttal, the prosecution called the stenographer who reported the testimony given at the prior trial, and was permitted to show by him, over the objection of the appellant, that the witnesses had made the statements ascribed to them. This is assigned as error, apparently on the theory that the stenographer was incompetent to testify. But clearly such is not the rule. The stenographer is as competent to testify as to what the witnesses stated as is any other person who heard, or heard and made notes of, the testimony given at the former trial. The competency of his evidence being determined, its weight and sufficiency Was, of course, for the jury.

Certain exceptions were taken to the instructions of the court, and to the refusal of the court to given certain others, requested by the appellant. These exceptions, however, involve only the different theories of the law involved in the questions already discussed, and require no further or separate consideration.

The judgment is affirmed.

Hadley, Mount, Anders, and Dunbar, JJ., concur.