State v. Storrs , 112 Wash. 675 ( 1920 )

Bridges, J.

Appellant was found guilty of seducing Ruth Garrison. His motions for an instructed verdict and for new trial were denied and judgment of sentence pronounced, from which judgment he has appealed.

(1) The first assignment of error is based upon the alleged fact that the court refused to permit appellant’s counsel to interview and consult with the witness Ruth Garrison before or pending the trial of the action. The record shows that, on the day the trial commenced, the appellant moved the court for permission to interview Ruth Garrison, who was one of the chief witnesses in the case, and supported that motion by affidavit to the effect that, prior to and at the time of the trial, Miss Garrison was confined in the insane ward of the state penitentiary at Walla Walla; that he had procured to be issued out of the court an order directing the warden of such penitentiary to produce her as a witness on behalf of the appellant at his trial; and that she had been brought to the place of trial by á penitentiary guard, who refused the appellant’s attorneys permission to consult with her. Thereafter the court made an order denying the appellant’s motion. The order of denial does not state the reasons therefor. The record further shows that Miss Garrison was a very important witness and was called by the state; that she was fully cross-examined by the attorneys for the appellant; and that, during the course of the cross-examination, but near the close thereof, they were given permission to talk privately, but in the presence of the court, with the witness.

It may be conceded that a person charged with a crime ordinarily has a right to talk with persons having any knowledge of matters which might he beneficial or detrimental to him. But this right is not of universal application. The matter must of necessity rest largely in the discretion of the trial court; and, where that court has refused to permit the defendant to consult with a witness before the trial, this court should not reverse on that account, except for an abuse of discretion. A very thorough investigation of the question convinces us that the court did not abuse his discretion. The record shows that, before the trial, Ruth Garrison had been tried in another court for the murder of the appellant’s wife; that the jury had found her not guilty because of criminal insanity and mental incompetency; that she had been sentenced to the ward for criminally insane persons at the state penitentiary, where she was confined at the time of this trial; that, for a long time before the trial of this case, she had been, and still was, greatly in love with the appellant, and he then had great influence over her; that she was willing to, and, as a matter of fact, did, during the trial, shield and protect him in all honorable ways; and that she was so enamored of him that she would have made almost any sacrifice for him. In fact, the only thing lifting this case above the usual in such cases is the great, uncommon and almost unnatural love of Ruth Garrison for the appellant, always shining through the dross. In the light of all these facts, and possibly others which the record does not disclose and which may have been known to the trial court, the latter well might have concluded that the ends of justice required the making of the-order refusing the appellant and his attorneys permission to interview the witness. When we consider the manifest state of mind of the witness toward the appellant, his influence over her, her mental incapacity, and the fact that she was confined in the penitentiary, we cannot say that the court abused its discretion.

The appellant greatly relies upon the case of Shaw v. State, 79 Miss. 21, 30 South. 42, where the court held it was error to refuse the defendant the privilege of conferring with his own witness; and State v. Papa, 32 R. I. 453, 80 Atl. 12, where the court held that the attorney for the defendant not only had the right, but it was his duty toward the client, to fully investigate the case and to interview and examine as many as possible of the eye-witnesses to the assault, and that witnesses were not parties and should not be partisans. Those cases doubtless state the general rule; but the facts of those cases were very different from the facts of this case. It has generally been held that questions of this character are within the discretion of the trial court. It was in substance so held in the following cases: Williams v. State, 53 Fla. 89, 43 South. 428; Hudson v. State, 137 Ala. 60, 34 South. 854; Robinson v. State, 8 Okl. 667, 130 Pac. 121; State v. Goodson, 116 La. 388, 40 South. 771.

But, should it be conceded that the court abused its discretion, yet a careful reading of the testimony convinces us that the appellant was not prejudiced by the court’s action. He does not point out any specific instance where he was so prejudiced. He does not point to any testimony he might have brought out if he had been given an opportunity to interview the witness. At all times she was friendly to him, and on cross-examination testified fully and openly. We cannot, therefore, find any reversible error in the action of the trial court in refusing the interview.

(2) The appellant makes numerous assignments of error based upon alleged improper remarks and improper argument to the jury by, or misconduct of, the attorneys for the state. We have uniformly held that, where objections are made to an alleged improper remark or argument, and the court at the time sustains the objection and plainly directs the jury to disregard any such remark or argument, we will not hold such as reversible error, unless the argument or remark was of such character as to convince us that the court could not, by his admonitions to the jury, cure the error. State v. Boyce, 24 Wash. 514, 64 Pac. 719; State v. Hawkins, 27 Wash. 375, 67 Pac. 814; State v. Wong Tung Hee, 41 Wash. 623, 84 Pac. 596; Bunck v. McAuley, 84 Wash. 473, 147 Pac. 33; State v. Ackerman, 90 Wash. 198, 155 Pac. 743.

In common with all other courts, we have always held that we will not review an alleged error to which no objection was made or exception taken. Rice v. Stevens, 9 Wash. 298, 37 Pac. 440; State ex rel. Mackintosh v. Superior Court, 45 Wash. 248, 88 Pac. 207.

Each of the following assignments of error is controlled by the cases we have cited, to wit, assignment of error No. 2, being a remark made by the prosecuting attorney to the effect that, “I am not trying him for murder;” assignment No. 3%, concerning a remark made by the prosecuting attorney about the Mann Act; assignment No. 7, concerning another remark made by the prosecuting attorney to the effect that, “All the evidence goes to show that he played up in the mind of that little, weak girl;” assignment No. 8, with reference to certain other remarks made by the prosecuting attorney; assignment No. 10, which concerns a remark made by the prosecuting attorney as follows: “I don’t think it is anything but by-play, anyway;” assignment No. 16, being a remark by the assistant prosecuting attorney to appellant’s attorney as follows: “Do you mean to say that, because a man is quarreling with his own wife, it gives him a right to commit seduction outside his own family?” assignment No. 17, being a portion of the closing argument of the assistant prosecuting attorney. In each of these instances the appellant’s attorney made objection and the objection was sustained, and the court at the time clearly and expressly warned the jury that it should not consider any such remarks or statements. While some of these remarks may have been improper, yet we have no doubt that any detrimental effect they may have had was removed by the court’s instructions to the jury. The cases cited by us also dispose of assignment No. 4, where error is claimed because Mr. A. E. Hilen acted as assistant prosecuting attorney. No objection to his so acting was made at the trial, and there was no ruling of the court or request for ruling. Nor do we see any valid reason why he should not have so acted, since he did so at the request of the prosecuting attorney.

(3) A number of errors are assigned based upon the opening statement by the prosecuting attorney, wherein it is claimed he made various assertions as to what the state’s testimony would show, when, as a matter of fact, the testimony failed to substantiate such statement. It must be conceded that the prosecuting attorney, in his opening statement, did claim that he would be able to prove certain things which, as a matter of fact, he failed to prove, but most of these matters were of an immaterial nature. The state was required, in the nature of things, to rely for the most part upon Euth Garrison to make out its case; and she was, in a sense, a hostile witness—hostile in the sense that she was manifestly willing at all times to protect the appellant. It should also be borne in mind that this witness was confined to the insane ward of the state penitentiary, and that the state had not had the usual opportunity to confer with her concerning what her testimony would be. We have read and reread the whole of the opening statement and cannot find that the prosecuting attorney was actuated by any malice or venom, or that, generally speaking, the statement was not fair.

(4) During the trial the state offered, and the court received, in evidence a certified copy of the information charging the witness Ruth Garrison with the murder of Grace Storrs in King county, Washington, and the verdict of the jury at that trial, and also special findings of the jury and the judgment committing the witness, as a criminally insane person, to the penitentiary of the state. These papers show that the jury acquitted Miss Garrison, but found that, at the time of the commission of the crime and at the time of the trial, she was insane or mentally irresponsible. These certified copies were introduced under the following circumstances: During the course of the trial, the appellant’s attorney announced in open court that the appellant was willing to, and would at once, or at any time to be fixed by the court, marry Ruth Garrison, and stated that such proposal of marriage was made in good faith. The statute with reference to seduction is as follows:

“Every person who shall seduce and have sexual intercourse with any female of previous chaste character, shall be punished by imprisonment in the state penitentiary for not more than five years or by imprisonment in the county jail for not more than one year or by a fine of not more than one thousand dollars, or by both fine and imprisonment. Provided, that if at any time before judgment upon an information or indictment, a defendant shall marry such female, the court shall order all further proceedings stayed; . . .” Rem.. Code, § 2441.

The state offered these certified copies in evidence for the purpose of showing, or tending to show, that Ruth Garrison was incompetent to accept a proposal of marriage, that she was criminally insane and mentally irresponsible, that she was at that time confined in the penitentiary, and that the appellant’s proposal of marriage was not made in good faith. We have no donbt the testimony was perfectly competent for these purposes.

(5) It is next earnestly contended that the prosecuting attorney demanded that the appellant admit certain matters involved in the trial. There is no merit in this contention. The prosecuting attorney asked the appellant’s attorney the following question: “Do I understand, Mr. Smith (attorney for the appellant), that the defense admits that Plaintiff’s Exhibits 14, 15, 16 and 17—” Thereupon the appellant’s attorney objected to the prosecuting attorney calling upon the appellant to make an admission. The court at once allowed an exception and instructed the jury to disregard what the prosecuting attorney had said, or any request made by him. In the first place, the prosecuting attorney did not request the appellant to make any admission, and secondly, if he had made such, it was cured by the ruling of the court.

(6) After the appellant’s counsel in open court expressed the willingness of the appellant to marry Ruth Garrison, he asked and received permission to make her his witness. After having so done, he asked her whether she was willing to marry the appellant. The state’s attorneys objected to this question and, after argument, the court started to rule on the question of the proposed marriage, and in so doing stated that he usually preferred giving his reasons for any rulings which he might make, but that, when ruling in the presence of a jury, he always greatly limited his expressions of reasons for the ruling, lest he might say something which would cause a mistrial; and he then proceeded as follows: '

“Now, whatever may be right and proper and permissible in the ordinary seduction case, I am thoroughly satisfied that by reason of the conditions and facts of this particular case that this court has no jurisdiction, power or right to allow or permit anything of the nature of the question, and if the court had the power and the right and the jurisdiction to allow or permit such, it was in the discretion of the court, and by reason of the condition and the facts of this case the court would not permit it, so the offer will be rejected and the motion denied and exception allowed.”

It is contended that the court commented on the evidence to the effect that, in his opinion, this was not an ordinary, but an aggravated, seduction case. Counsel for the appellant have extensively and seriously argued this question. We are frank to say that, in our opinion, they entirely misconstrue the expression or intention of the trial court. The court had before it, for a ruling, an offer of marriage to a woman who was at that time confined-to the penitentiary, and who had been adjudged mentally incompetent. The court simply meant to say that such facts were unusual, as indeed they were. There is nothing in the court’s expression to indicate that he thought that the case on trial was unusual. We cannot conceive that the jury could have misconstrued the court’s meaning. Nor can it be said that the court in anywise commented upon the evidence. It was doing nothing more than giving its reasons for denying the appellant’s motion to discontinue the case on the ground of his offer of marriage. The numerous cases cited by the appellant in support of his contention do not, in our opinion, lend any light to the subject.

(7) The appellant'requested the court to give eight separate instructions, and assigns separate error for the refusal of the court to give any of them. His requests Nos. 3, 4, 5, 6, 7 and 8 need no special comment from us. They were either covered in substance by the court’s instructions or were argumentative or improperly stated the law of the case. The only requested instructions we deem it necessary to particularly notice are Nos. 1 and 2. No. 1 was to the effect that, if Ruth Garrison knew, prior to the time she submitted her body to the appellant, that he was a married man, then any promises of marriage made to her by the appellant after such knowledge on her part could not have deceived her, and she would not have been justified in relying upon them. It probably would have been proper to have given this request had promise of marriage been the basis and cause of the seduction. "While the testimony shows that Euth Garrison knew the appellant was a married man at the time she submitted her body to him, and that there had been some general talk between them to the effect that he might obtain a divorce and might thereafter marry her, yet these matters were purely incidental; they were not inducing causes. Her testimony makes it perfectly plain that she did not submit to him because of any promise of marriage; and, in fact, that there never was any such proraise. Under these circumstances, it was not error for the court to refuse to give the requested instruction. Appellant’s request No. 2 is as follows:

“To constitute the offense of seduction under our statute, it must appear from the evidence, beyond a reasonable doubt, that Euth Garrison yielded her person, and submitted to have sexual intercourse, by reason of some false promise or deceitful inducement held out to her by the defendant, and that by reason of such false promise or deceitful inducement she was drawn aside from the path of virtue, yielded to the defendant, and had sexual intercourse with him.”

The court refused this request, and in its stead gave the following instruction to the jury:

“In order to constitute the offense (of seduction), •it must be shown by the proofs in the case, beyond a reasonable doubt, that at the time alleged in the information, Ruth Garrison yielded her person and her virtue by reason of some artifice, promise, inducement, persuasion, deception or wile of said Douglas M. Storrs, made at that time or at any previous time, and without which she .would not have yielded. The artifice, promise, inducement or wiles are not limited to the time the act of sexual intercourse occurred, but, if you find, from the evidence, beyond a reasonable doubt, that by persistent attention or by promises or inducements or persuasions from time to time, the said Douglas M. Storrs built up such respect and love in Ruth Garrison for himself as to finally and eventually overcome her virtue and induce her to voluntarily yield by these means, then you should find him guilty, as charged.”

The instruction requested was altogether too narrow. Under it the appellant could not be found guilty unless the jury believed he had accomplished his purpose on Ruth Garrison by reason of false promises or deceitful inducements.

To be guilty of the crime of seduction it is not necessary that the promises of the seducer should be false or that his inducements should be deceitful. Otherwise, a man who accomplishes his purpose under promise of marriage would not be guilty of seduction if his'promises were made in good faith.

In the case of State v. O’Hare, 36 Wash. 516, 79 Pac. 39, 104 Am. St. 970, 68 L. R. A. 107, we said:

“The word ‘seduce’ in this statute is used in its ordinary legal meaning, and implies the use of arts, persuasion, or wiles to overcome the resistance of the female who is not disposed, of her own volition, to step aside from the path of virtue. No doubt the most common method of enticing an unmarried, virtuous woman from rectitude is by promises of marriage, but there are other arts, wiles, and promises which may be made, and which may be acted upon by a virtuous woman.”

(8) Complaint is made of the following instruction of the court:

“Insofar as the case now being tried is concerned, prior acts of sexual intercourse which the defendant himself committed with the said Ruth Garrison under the same or similar circumstances, cannot be considered by you in determining the chastity or unchastity of the said Ruth Garrison. Insofar as those acts are concerned, she would be of previously chaste character. Other acts of sexual intercourse, aside and apart from those, must be shown to overcome the presumption of chastity which the law gives to every female person.”

This instruction is in accordance with the previous rulings of this court. State v. Sargent, 62 Wash. 692, 114 Pac. 868, 35 L. R. A. (N. S.) 173; State v. Tilden, 79 Wash. 472, 140 Pac. 680.

(9) The court instructed the jury that:

“Every female person is presumed to be of chaste character, and this presumption must be accorded to Ruth Garrison in this case until such time as the defendant shall prove, by specific acts of sexual intercourse committed prior to the date alleged in the information, that the said Ruth Garrison was physically unchaste.”

Particular complaint is made of that portion of this instruction which requires the defendant to overcome the presumption of chastity by proof of “specific acts of sexual intercourse . . .” We think the instruction states the law correctly, particularly when read in connection with the other instructions covering the same subject-matter. What the court had in mind was that the appellant could not prove unchastity by proving general reputation in that regard, but he must prove to the satisfaction of the jury that Ruth Garrison had been guilty of the specific act of sexual intercourse. Chastity is an existing personal virtue, not a reputation. A bad reputation cannot any more make a woman unchaste than a good reputation can make her chaste. What the appellant was required to prove was actual unchastity, not reputation for unchastity. State v. Workman, 66 Wash. 292, 119 Pac. 751; State v. Jones, 80 Wash. 588, 142 Pac. 35.

Complaint is also made of other instructions of the court. We cannot here present them in detail. We have carefully considered them. We find no error in them.

(10) It is finally contended that the evidence was insufficient to prove the crime of seduction. This assignment will require us to recite the substance of the testimony. When Ruth Garrison first met the appellant, she was working in the courthouse in the city of Seattle. She was eighteen years of age and he was twenty-six. He was working in the sheriff’s office in the same building. He had quite often spoken to her, and on a certain afternoon invited her to ride with him in his automobile to her home, which invitation she accepted. At that time she thought he was an unmarried man. On the same evening he called on her and took her for a ride. He called on her quite frequently during the immediately following days and weeks. During this period he did not inform her that he was married, and she continued to believe he was single. She did not learn of his marriage until some time after she had met him, and then she learned it accidentally by telephoning to his wife in an effort to talk over the telephone to him. The testimony clearly discloses that, at the time she learned he was married, she was very greatly under his influence and completely in love with him. He gave her to understand that there was very little affection between himself and his wife. He con-tinned to pay attentions to her, taking her to ride in his automobile, often expressing to her his admiration of and love for her, and constantly treating her as a sweetheart. At this time she was manifestly madly in love with him and would have made almost any sacrifice for him. A few weeks after their first acquaintance he took her with him to Everett, where they stopped at the same hotel during the night. At that time the appellant suggested intimate relations with her, which she refused. Thereafter he .constantly called upon her and she willingly submitted to all of his embraces. At times she was required to deny him the privileges of her body. Later he went from Seattle to Okanogan city, in Okanogan county, Washington, where he worked as a mechanic. There was considerable correspondence between them. Her trust in him and her love for him at once induced her to go to him. At- the hotel in Okanogan she was registered as his wife. They were very intimate and very attentive one to the other and were almost constantly together. On the first night she was in Okanogan, she again refused his solicitation that she submit her body to him; but on the second night he accomplished the act of sexual intercourse. This, in brief, is the story. We have no doubt there was ample proof to require the case to go to the jury on the question of seduction. To speak plainly, and in the substance of the language of someone else, it cannot be said that the testimony shows the act of sexual intercourse was the matching of the passions of the one against those of the other. The appellant greatly relies on the case of Rockwell v. Day, 101 Wash. 580, 172 Pac. 754. Whether one be guilty of seduction must depend on the facts, and the facts of that case are very different from the facts here. There the woman was forty-two years of age and had two grown daughters, and she was worldly wise; here the girl was but eighteen. In that- case there was an absence of showing of love and affection on the part of the woman, whereas here existed all the trust and love it is possible for one to possess. These are only a part of the distinctions between the two cases. The significant facts and the general atmosphere of the two cases have but little in common.

There are other assignments of error of less important nature. We have very carefully considered them, but do not find merit in them. This opinion is already too extended to discuss them in detail.

We are convinced the appellant received a fair trial and we will not disturb the judgment, which we affirm.

Holcomb, O. J., Fullerton, and Tolman, JJ., concur.