fact that the defendant may have raped a woman in his truck on March 29,1949, did not tend to establish a plan to rape another woman in his truck later that same day, much less a design or plan to rape a third woman on February 8,1949
How later courts described this case
- fact that the defendant may have raped a woman in his truck on March 29,1949, did not tend to establish a plan to rape another woman in his truck later that same day, much less a design or plan to rape a third woman on February 8,1949
- "[t]he general rule is that, in cases of this kind, a witness may testify that the prosecutrix made complaint after the assault"
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by State v. Lough, 125 Wash. 2d 847 (1995)
40 Wn.2d 18, 21 , 240 P.2d 251 (1952), overruled in part on other grounds by State v. Lough, 125 Wn.2d 847 , 889 P.2d 487
The opinion
Hill, J.
(concurring specially)—As the author of the opinion in State v. Goebel, 36 Wn. (2d) 367, 218 P. (2d) 300 ,. I expressed as accurately as I could the views of the court. In this concurring opinion, I speak only for myself.
It is my view that exhibit 19 should not have been admitted in either trial. The “minute peg of relevancy,” if any, was “entirely obscured by the dirty linen hung upon it.”
The majority seems to have serious doubts about the peg of “plan, scheme, or design,” and, after going at some length into the question of relevancy, it suggests two what seem to me quite minute pegs: (1) identity, and (2) to establish the fact that the offenses could have been committed in the truck. The state did not offer exhibit 19 for either of those purposes, and the only purpose for which the jury could consider it under the court’s instruction was “for whatever bearing it may have, if any, upon the question of common scheme or plan in connection with the charges of rape in Counts 1 and 3.”
When the prejudicial effect of evidence is obvious, and the relevancy, if any, is so microscopic that it is difficult to determine its existence, it should not be admitted against the defendant in a criminal case. I can, however, concur in the affirmance of the conviction in this case because the trial court, by its instruction, limited the consideration of exhibit 19 to the rape counts, and on those counts the defendant was acquitted.
With reference to the claimed prejudicial misconduct of the deputy prosecuting attorney in referring to exhibit 19 in connection with the sodomy counts, the majority places some emphasis upon the fact that her remarks were inadvertent. The prejudicial effect, so far as the defendant is concerned, would be the same whether the statement was *29 inadvertent or intentional. This was, in my opinion, prejudicial error. We have, however, recognized on numerous occasions that such error can be cured by the court’s instruction to disregard it, and by striking the objectionable matter from the record. It must also be conceded that we have held that there are circumstances in which no instruction can remove the prejudice. I believe this jury could and did follow the court’s instruction to disregard the deputy prosecutor’s statement in this case; if I had any doubt on this point, I would give the defendant the benefit of it. The absence of any passion or prejudice on the part of the jury is shown by its acquittal of the defendant on the rape counts. His guilt on the sodomy counts is established by the overwhelming weight of the evidence.
Olson, J., concurs with Hill, J.
April 8, 1952. Petition for rehearing denied.