State v. St. Clair , 139 Wash. 428 ( 1926 )

The information charged the defendant with an assault in the second degree upon a young lady living in the city of Centralia, the assault being committed on the third day of November, 1925. The case was tried to a jury, which returned a verdict finding the defendant guilty of an assault in the third degree. He moved for his dismissal, on the ground that the evidence was insufficient to support the verdict. His motion having been denied and judgment of sentence entered, he has appealed.

[1] The only question presented here is as to the sufficiency of the evidence, and, particularly, the sufficiency of the identification of the defendant as the person who assaulted the young lady. Her testimony showed that it was after dark when she left her place of employment, which was on one of the main streets of Centralia; that she was proceeding directly towards her home, several blocks away; that she had seen the defendant at other times in the city of Centralia; that she saw him while she was going down Tower avenue on the evening of the assault; that he was driving a Maxwell coupe. According to her testimony, he followed her, turning around once or twice after he had got past her; that at a rather dark place on one of the streets, not far from her home, he left his car, ran after her, and struck her several blows, after which, on account of her screaming, he left her, ran to his car and drove towards the main portion of the city. She saw that his car was carrying a California license plate. About half an hour after the assault, according to her testimony, she saw him drive past her home, and she then recognized him as the person who had assaulted her, and thereupon a couple of men ran after him and he was ultimately arrested. That evening, or the next day, the young lady identified him at the city jail as the person who had assaulted her. At the trial she also identified him. Her identification at all times was positive and absolute. There was other testimony tending to support that given by her.

The state's testimony tended to show that the assault occurred between 6:15 and 6:30 of the evening in question. The appellant produced testimony to the effect that at the time in question he was not on the streets of Centralia, but was in a certain garage having a tire changed.

A careful reading of the testimony convinces us that there was ample evidence to carry the case to the jury. It was not bound to believe the witnesses who testified that appellant was at the garage at the time the assault is alleged to have occurred, when there was testimony tending to show to the contrary. Or the jury might have believed defendant was at the garage between 6:15 and 6:30 (the time the state's testimony tended to show the assault was made) and that the assault occurred a few minutes earlier or later than the testimony tended to show; or that the assault occurred at the time proven, but that appellant had been at the garage a few minutes earlier or later. The exact time of the assault was immaterial. From the garage to the place of assault was but a short distance. The jury had a right to take into consideration that it is difficult for witnesses to fix the exact time of an occurrence.

The question of identity was for the jury.

The judgment is affirmed.

TOLMAN, C.J., HOLCOMB, ASKREN, and FULLERTON, JJ., concur.