State v. Drake , 127 Or. 585 ( 1928 )

In Banc. The defendant, W.C. Drake, was indicted for the crime of rape committed by having intercourse with one Charmain Knight, a female child of the age of fourteen years. The indictment is in the usual form and its sufficiency is not questioned. Evidence was introduced upon the trial sufficient in its character to indicate the commission of the offense and no question of its sufficiency is raised except in two particulars.

The prosecutrix testified that her name was Charmain Knight; that her age was practically fourteen years and three months at the time of the trial, which would make her about fourteen years of age at the time of the alleged offense; that she lived about two miles south of the town of Powers. She particularly detailed the time and manner in which the offense was originally committed. The testimony of the mother of the prosecutrix as to the age of the girl and the location of the place of the offense was to the same effect. In the first instance, she was not directly asked whether or not the prosecutrix was married to the defendant, nor were any of the other witnesses for the prosecution asked that question; but her testimony as to her age and name and the fact that she was the daughter of Mr. and Mrs. Knight were plainly made to appear. Nor was any witness asked on examination as to whether the offense was committed in the county of Coos. At the close of the testimony for the state the defendant's attorney moved for a directed verdict on the ground that there was not sufficient evidence of the crime to go to the jury. It appears from a memorandum in the transcript that the motion was in writing. It does not appear in the transcript, but we infer from the arguments of counsel and the exhibits, that this was all that the motion contained. The motion to direct a verdict was overruled and counsel proceeded to argue the case to the jury. Before the case was submitted or any instruction given the district attorney stated to the court that he was in doubt as to whether sufficient proof had been offered as to the fact of the nonmarriage of the prosecutrix to the defendant and asked leave to reopen the case for that purpose. The court remarked that, in addition to this omission, he was in doubt as to the venue having been sufficiently proved, and stated that he would reopen the case for the purposes suggested and if counsel for defendant saw fit to make any further argument, after such testimony was admitted, he was permitted to do so, to all of which counsel for defendant excepted.

AFFIRMED. This case comes here practically on exceptions to the action of the court in the matters above noted. We are of the opinion that, even omitting the testimony offered after the case was reopened, there was sufficient evidence to go the jury to satisfy them that the defendant and prosecutrix were not husband and wife. The defendant answered to the name of W.C. Drake. The prosecutrix testified that her name was Charmain Knight; that she was of the age of fourteen years and that her family and defendant had lived near Powers for several years. It was also in evidence that the defendant was a man of fifty-two years of age. Statutes of this state make it impossible for a child under the age of fifteen years to marry under any circumstances and this fact taken in connection with the testimony of the prosecutrix as to her name and age would justify the jury in concluding that she was not married to the defendant. In fact, she could not be legally married to him. So independent of the ruling of the court allowing the case to be reopened to show this fact, there was sufficient evidence on that point to go to the jury. In addition to this, it may be remarked that the defendant testified that when he first went to the home of Mr. and Mrs. Knight he objected, on the ground of impropriety, to the prosecutrix sleeping in the same bedroom with him. In addition to this we think that the court clearly had the right, even if in testimony as to the nonmarriage of the parties nothing had been said as to the fact of the nonexistence of such relation, to reopen the case here when such omission had been discovered, and, before the case had been finally submitted to the jury, to allow such omission to be corrected. Such authority should be very carefully exercised. It would have been a failure of justice to have dismissed the defendant upon a mere technicality of this character where the evidence was clear as to his guilt. The same view obtains as to the proof of venue. There was not an entire absence of proof in the first instance. It was shown that the alleged act was committed near Powers directly south of that town, at a distance of about two miles therefrom, and the court will take judicial notice that Powers is a postoffice town and is situated in Coos County, Oregon, and certainly the Circuit Courts of that county will take judicial notice of their boundaries: Citing SouthernPacific Co. v. Erickson, 103 Or. 311, 317 (204 P. 942);Nicholas v. Yamhill County, 102 Or. 615, 622 (192 P. 410, 203 P. 593); Gager v. Henry, 5 Sawy. 237 (Fed. Cas. No. 5172); State v. Powers, 25 Conn. 47, 50; Harding v.Strong, 42 Ill. 149 (89 Am. Dec. 415); Indianapolis Cincinatti R.R. Co. v. Case, 15 Ind. 42.

We think there was no error in allowing the case to be reopened to introduce more formal testimony, although in our view it was to a great extent cumulative. AFFIRMED.