State v. Elswood

The opinion of the court was delivered by

Hoyt, C. J.

Defendant was convicted of the crime of rape and from the judgment and sentence imposed has prosecuted this appeal.

His first attack is upon the information, of which the substantial part was in the following language:

“ Comes now C. A. Mantz, county and prosecuting attorney for Stevens county, state of Washington, and by this his information charges the defendant Henry Elswood of the crime of rape committed as follows, to-wit: The said Henry Elswood in Stevens county, state of Washington, on to-wit the 26th day of July, 1895, and before the filing of this information, in and upon one Ressie Lutjens, a feiiiale child, u-nder the age of twelve years, to:wit of the age of ten years, feloniously did make an assault, and her the said Ressie Lutjens then and there feloniously did ravish, carnally know and abuse, contrary to the statute in such case made and provided.”

It is claimed that this indictment was bad, for the reason that it charged two distinct crimes; first, that of assault, and second, that of rape. The ground upon which this claim is made is that the section (Penal Code, § 28) upon which the information was founded has provided for two distinct crimes, one for rape upon an adult and another for one upon a child. We do not thus understand this section. We think it has provided for but one crime, that of rape; that it has provided the acts necessary to constitute the crime in the case of an adult, and also those which vrould constitute the crime in the case of a child. But in either case the offense therein defined is that of rape. This being so, and it being clear from the language of the information that it was the intent to charge a felonious assault, the fact that words were used which might have charged an assault independent of the charge of rape, does not show an intent to charge the crime of assault, excepting as the same is included in the crime of rape. The information fairly informed the defendant of the offense with which he was sought to be charged and under our statute was sufficient.

The second error is founded upon the action of the court in allowing special counsel to appear to aid the prosecuting attorney in the trial of the cause; but in our opinion the action of the court in this matter was within its discretion and no abuse thereof being shown by the record such discretion will not be interfered with here.

A portion of the third ground upon which reversal is sought attacks the information, as to which it is not necessary that anything further should be said.

The other ground alleged under this point is that the evidence was such that the court should have taken the case from the jury and discharged the defendant. But since there was testimony tending to show every fact necessary to establish the guilt of defendant, we think the action of the court in refusing to take the case from the jury was what it should have been.

The fourth assignment of error is founded upon the action of the court in admitting and refusing to admit evidence offered upon the trial, and raises the question as to the sufficiency of the evidence to support the verdict.

The action of the court upon the trial, in allowing leading questions, is strongly urged as having been prejudicial error, but this is a matter so largely in the discretion of the lower court that, except in an extreme case, its action will not be interfered with, and that extreme case is not made to appear from this record.

As to the admission of testimony objected to and the refusal to admit testimony offered, it is sufficient to say that we have carefully examined the statement of facts and fail to find in the rulings therein disclosed any ground for reversal.

Upon the question of the insufficiency of the evidence to support the verdict, there was, as we have already seen, testimony tending to show every necessary fact; and this being so, and the jury having acted thereon and rendered a verdict, and the court which tried the cause and heard the testimony given having refused to interfere with such verdict, the insufficiency of the testimony is not so apparent from the record as to warrant us in setting aside the verdict.

The judgment and sentence will be affirmed.

Scott, Andejrs, Dunbar and Gordon, JJ., concur.