58 Wn.2d 598, THE STATE OF WASHINGTON, Respondent, v. HENRY L. THOMPSON, Appellant
[No. 35390. En Banc. Supreme Court August 31, 1961.]
THE STATE OF WASHINGTON, Respondent, v. HENRY L.
THOMPSON, Appellant.«*»

The appellant contends that there was no proof of corpus delicti. He seeks to invoke the rule that proof of corpus delicti may not be made solely by use of a confession or admission of the accused, and relies upon State v. Lutes, 38 Wn. (2d) 475, 230 P. (2d) 786 and State v. Meyer, 37 Wn. (2d) 759, 226 P. (2d) 204.

604 STATE v. THOMPSON. [58 Wn. (2d)

[2] The appellant has correctly stated the rule, but it is inapplicable in this case. Proof of corpus delicti is proof that a crime has been committed. The deceased was found stripped to the waist, covered with cuts and contusions, and with a fractured skull which later caused her death. A fall on the pavement could possibly have fractured her skull, but it is unreasonable to infer that an accidental fall would have stripped her to the waist and produced all the other circumstances presented in this case. A coroner s jury, even in the absence of an arrest or an information relating to the appellant, would be warranted in finding that the deceased had come to her death by criminal means. This is all that is required to establish that a crime had been committed. It is true that appellant's confessions did corroborate the fact that the cause of death was criminal in nature, but such corroboration, though permissible, was not needed to establish the corpus delicti in this case in view of the other circumstances.

[3, 4] The appellant contends that the introduction of evidence of another crime, namely, the assault on Sharon Sharp, was reversible error.

We do not agree. The evidence was admissible under the rule as stated in State v. Sedam, 46 Wn. (2d) 725, 284 P. (2d) 292, wherein we said:

"Secondly, proper evidence is not to be excluded because it may also tend to show that the accused has committed another crime, unrelated to the one for which he is being tried. . . . The test is, does the questioned evidence tend to establish (1) motive, (2) intent, (3) absence of accident or mistake, (4) a common scheme or plan, or (5) identity. State v. Hartwig, 45 Wn. (2d) 76, 78, 273 P. (2d) 482 (1954)." (Italics ours.)

In instruction No. 6, the jury was specifically instructed that the evidence of the other crime was admitted solely to establish intent and identity, and that the jury could not find the appellant guilty of the crime charged simply because it believed him guilty of the other crime.

The testimony relating to the crime against Sharon Sharp established the identity of the person who was in the

Aug. 1961] STATE v. THOMPSON. 605

neighborhood of the crime charged, and the existence of his intention to commit a sexual assault.

The evidence was admissible to prove these things and was limited by the instruction to this proper purpose. Its admission was not error.

The appellant contends that evidence of an attempted rape of an eleven-year-old girl is so inflammatory and prejudicial that it should have been excluded on any account.

[5] Paraphrasing the language of an oath, a trial is a search for the truth, the whole truth, and nothing but the truth. No reason has been advanced why a jury would convict an innocent man because all of the pertinent facts show the crime was a heinous one. Moreover, all the facts are particularly necessary in this case because the appellant was charged with first degree murder. In such a case, it was the province of the jury, had he been convicted of first degree murder, to have determined the nature of the penalty to be imposed. To expect it to do this without all the facts would defeat the legislative purpose in giving it that function.

The appellant contends that the verdict of guilty of murder in the second degree cannot stand because, under the facts in this case, he is either guilty of murder in the first degree or of nothing. He cites RCW 9.48.030 and 9.48.040, which provide, inter alia:

"The killing of a human being, unless it is excusable or justifiable is murder in the first degree when committed either - . . .

"(3) Without design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of . . . rape . . ." (RCW 9.48.030.)

"The killing of a human being, unless it is excusable or justifiable, is murder in the second degree . . .

"(2) When perpetrated by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a felony other than those enumerated in RCW 9.48.030. . . . " (RCW 9.48.040.)

606 STATE v. THOMPSON. [58 Wn. (2d)

The appellant argues that the state's case was predicated upon his killing of Mrs. Tussing while attempting to commit the crime of rape, and that, accordingly, under the statute his crime could not be murder in the second degree.

[6] We do not agree. The jury was specifically instructed that murder in the second degree was an included lesser offense, and that it might find the appellant guilty of murder in the second degree if it found him guilty of the crime of assault in the second degree. This instruction warranted the return of the verdict in question because rape or attempted rape does not exclude the commission of an assault. Indeed, an assault is generally the implementation of a rape, except, of course, when it is statutory rape. The jury was instructed on the crime of assault in the second degree. It evidently found that the appellant was guilty of assault rather than attempted rape and, therefore, returned a verdict of murder in the second degree. The verdict was proper.

The appellant was arrested for the attempted rape of Sharon Sharp, but, in accord with the local police custom, he was held on an open charge by being booked for intoxication while an investigation of the attempted rape of Sharon Sharp and the murder of Mrs. Tussing was being made. He was arraigned on the instant charge six days after his arrest. At that time, the court appointed counsel for him.

Appellant now contends that his confinement on an open charge prior to his arraignment was illegal.

[7] We do not agree. Appellant was legally arrested for a felony. He was held on a so-called open charge to permit a reasonable investigation before the filing of an information. The police record or booking is not the charge upon which a defendant goes to trial and has no particular significance after a formal charge has been lodged. Had he cared to question his confinement prior to filing the information, he could have done so by habeas corpus. After the filing of an information, habeas corpus will not lie.

Aug. 1961] STATE v. THOMPSON. 607

Based upon appellant's theory that his confinement prior to the information was illegal, he now contends that his confessions made during that period were inadmissible at the trial on the instant charge.

During appellant's confinement prior to arraignment, he was questioned by police officers and made a series of confessions. He was visited by his sister the day after his arrest and by his father and sister three days later. Officer Geleynse overheard him tell his sister he had committed the offenses against the deceased and Sharon Sharp.

RCW 10.58.030 provides:

"The confession of a defendant made under inducement, with all the circumstances, may be given as evidence against him, except when made under the influence of fear produced by threats; but a confession made under inducement is not sufficient to warrant a conviction without corroborating testimony." (Italics ours.)

[8] The appellant has never contended that he was coerced by threats into making the confessions. While he was questioned at some length over a period of five days, it is not contended that this period was so protracted that he no longer knew what he was doing or that he would have signed anything to stop the questioning. Nothing in the record indicates that he was so ignorant or fearful of the officers that he would confess to a crime which he did not commit.

An interrogating officer explained to appellant that he did not have to answer the questions if he did not want to, and that he had a right to have an attorney. This statement was contained in all his written confessions, but, notwithstanding that, he testified at the trial that he did not know what "the right to counsel" was. The jury was not obliged to believe this in the light of the conflicting evidence. In any event, he did not request an opportunity to procure or consult counsel prior to arraignment.

The admissibility of confessions is not limited to those made by and with the advice of counsel or to those that are pertinent to a criminal charge pending at the time they

608 STATE v. THOMPSON. [58 Wn. (2d)

are made. The confessions and other exhibits were properly admitted in evidence.

The appellant has not been denied due process of law because an attorney was not appointed prior to his arraignment and the making of his confessions. They were admissible under the provisions of RCW 10.58.030, and the rule of State v. Winters, 39 Wn. (2d) 545, 236 P. (2d) 1038.

[9] The appellant's contention that the failure to arraign him promptly constitutes reversible error is without merit. There is neither statute nor case law in this state requiring prompt arraignment. Indeed, a defendant may be arraigned even after the trial is commenced and the jury impaneled. State v. Lane, 37 Wn. (2d) 145, 222 P. (2d) 394.

[10] Finally, the appellant assigns as error the refusal of the trial court to allow a doctor-hypnotist to testify as to the out-of-court statements made by the appellant while under hypnosis. When the appellant sought to introduce this testimony at the trial, the state objected on the ground that the statements were incompetent and self-serving. The trial court sustained the objection, and the appellant made no offer of proof. This court has consistently held that there can be no appellate review on the exclusion of evidence without an offer of proof. State v. Griffith, 52 Wn. (2d) 721, 328 P. (2d) 897.

The judgment and sentence are affirmed.

FINLEY, C. J., OTT, FOSTER, and HUNTER, JJ., concur.

DONWORTH, J. (dissenting) - The majority fails to find reversible error in the trial court's admission of the testimony and exhibits regarding the attempted rape of Sharon Sharp, an eleven-year-old girl. I differ.

I do not think that there can be disagreement on at least three points: (1) That the assault upon Sharon Sharp was unrelated to the crime charged (namely, the murder of Mrs. Ethel Tussing), (2) that evidence of unrelated prior crimes is normally excluded, and (3) that there are a number of well-recognized exceptions to this exclusionary rule.

Aug. 1961] STATE v. THOMPSON. 609

The evidence of the attempted rape of Sharon Sharp was admitted by the trial court (over appellant's objection) as bearing on both the identity and the intent of the accused, these being two of the exceptions to the rule. The court instructed the jury that the evidence relating to "the possible commission" of this other crime was admitted for these two purposes and no other.«1» The question left unanswered by the majority (at least to my satisfaction) is in what way or ways was the evidence of the assault on Sharon Sharp essential to prove the elements of identity and intent in connection with the charge of the murder?As was said in State v. Dinges, 48 Wn. (2d) 152, 292 P. (2d) 361 (1956):

". . . the true test of admissibility is that the evidence of other criminal offenses must be relevant and necessary to prove an essential ingredient of the crime charged."

In other words, to be admissible, the evidence introduced relating to another crime must not only tend to prove the crime charged, but must also be necessary to prove an essential element thereof.

In the case at bar, the accused was identified by two of the state's witnesses (besides Sharon Sharp) as having been in the vicinity of the place where the crime charged was committed at about the time of its commission. Furthermore, it goes without saying that Sharon Sharp and her mother could have identified the accused without going into the inflammatory details of the' alleged assault-details which consume many pages of the trial record, cited infra. Not only did the trial court admit in evidence all of the testimony introduced pertaining to the assault incident, but also seven exhibits relating thereto, including the blouse

«1» Instruction No. 6. "The Court has allowed testimony and evidence concerning the possible commission of another crime involving a minor child. The Court has permitted this evidence for two purposes and none other. One, the establishment of intent, and two, the establishment of identity.

"You, the Jury, shall not use this testimony and evidence in any other way than specified above and you shall not convict the defendant of the crime charged in this action, merely because you may believe him guilty of some other crime."

610 STATE v. THOMPSON. [58 Wn. (2d)

and pedal pushers worn by the young girl. In addition, the several confessions which appellant gave the police officers during the five days between his arrest and the filing of the murder charge contained numerous references to the assault upon Sharon Sharp.

As to the matter of intent (which is one purpose for admitting the Sharp testimony in this case), the only reference made to it in the majority opinion is that "The testimony relating to the crime against Sharon Sharp established . . . the existence of his [appellant's] intention to commit a sexual assault." I ask, an assault upon whom? By implication, the majority is holding that a sexual assault upon one female (after the murder of another) in some way evidences an intention to sexually assault the female who was allegedly murdered shortly before. Even assuming (for purposes of argument) that an attempt to rape one female is some evidence of an intention to rape another, there still remains a weighing process for the trial court. The question to be answered is, is the probative value of such evidence outweighed by the prejudice which it engenders in the minds of the jurors? In the present case, I think that the materiality is outweighed by the prejudice which was instilled in the minds of the jury.

This weighing process was graphically described in State v. Goebel, 36 Wn. (2d) 367, 218 P. (2d) 300 (1950), as follows:

". . . we are of the opinion that this class of evidence, where not essential to the establishment of the state's case, should not be admitted, even though falling within the generally recognized exceptions to the rule of exclusion, when the trial court is convinced that its effect would be to generate heat instead of diffusing light, or, as is said in one of the law review articles above referred to, where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it. This is a situation where the policy of protecting a defendant from undue prejudice conflicts with the rule of logical relevance, and a proper determination as to which should prevail rests in the sound discretion of the trial court, and not merely on whether the evidence comes within certain categories which constitute exceptions to the rule of exclusion. . ."

Aug. 1961] STATE v. THOMPSON. 611

The Goebel case again came before this court in 40 Wn. (2d) 18, 240 P. (2d) 251 (1952) and, in a concurring opinion, Judge Hill (the author of the majority opinion in the first Goebel case) pointed out:

"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 [a signed confession of the defendant relating the details of an assault by him upon a woman other than the prosecutrix - a crime not charged in the information] to the rape counts, and on those counts the defendant was acquitted."

The fact pattern of the case before us should not be confused with the situation where the defendant is on trial for a sex offense and the state introduces evidence of other acts of sexual misconduct with the prosecutrix (rather than another female) even though the other acts constitute separate crimes. As was held in State v. Thorne, 43 Wn. (2d) 47, 260 P. (2d) 331 (1953).

". . . Such evidence is admitted for the purpose of showing the lustful inclination of the defendant toward the offended female, which in turn makes it more probable that the defendant committed the offense charged." (Italics mine.)

In State v. Priest, 132 Wash. 580, 232 Pac. 353 (1925) this court had occasion to consider the question of the admissibility of testimony relating to sexual offenses other than the offense charged. The case involved sexual assaults upon three young girls (sisters living in the same home) which took place within a few minutes of one another. The court held:

". . . The several assaults were so nearly related and were so far a part of the same transaction as to make it almost impossible to show the one without showing the others and it would seem that the evidence was within the rule that permits the state to show a separate and distinct offense when the offense is so far related to the offense on trial as to form a part of the same transaction."

612 STATE v. THOMPSON. [58 Wn. (2d)

Furthermore, the court hastened to add that:

". . . both the prosecuting attorney and the court did all that was possible to keep the separate offenses from the knowledge of the jury.

As will be illustrated, infra, this was hardly true with respect to the case at bar.

In People v. Gibson, 255 Ill. 302, 99 N. E. 599 (1912), the supreme court of Illinois passed upon the issue and held:

". . . [Defendant] was tried for rape upon Ida Cedergren. If, as is alleged, he a few minutes later committed a like offense against Nora Porter, it no more formed a part of the transaction with Ida, and was no more an explanation of that act, than if it had been committed in her presence on another occasion. . . . The mere proximity of time within which two offenses may be committed does not necessarily make one a part of the other. Immediateness is not the true test. There must be a causal relation or logical and natural connection between the two acts or they must form parts of but one transaction." See, also, 167 A. L. R. 565.

To indicate the extent to which the prosecution delved into the attack upon the eleven-year-old girl, the following excerpts from the statement of facts are set out verbatim. On direct examination, Mrs. Lena Sharp (the mother of Sharon) testified:

"Q. And recalling again your attention to the night of June 14th, 1958, will you tell the jury where you were that night? A. I was at home in bed at 2009 I Street. Q. And who was there with you? A. I had just the two babies with me. The other children had been out playing; they was coming home. Q. Now, will you tell the jury what, if anything, occurred that night? A. Well, the children started coming home one at a time and I asked them where Sharon was. They said she'd started home but she hadn't got there yet, and then I had a friend visiting me and we heard a scream. Mrs. Smith was with me. And I didn't pay much attention to it, I thought, oh, just children playing. Then my little girl burst in the house. Q. Which little girl was that? A. Sharon. She was staggering and she was mumbling, I couldn't understand, and then I got out of her she - . . . Q. Did she make a complaint?A. Yes, finally. I had to shake her. I couldn't understand

Aug. 1961] STATE v. THOMPSON. 613

her: she was kind of hysterical. Q. Now, as a result of that complaint what did you, do? A. She said, well, `An Indian grabbed me - . . . Q. What, if anything, did you do after you heard her complaint? A. I jumped up and went across the street and called the police. Q. Do you know what time that was? A. No, I couldn't say exactly the time. Q. And will you describe her clothing?A. She had on aqua pedal pushers and a little striped shirt, or blouse. Q. And will you describe their condition? A. You mean what I was wearing? Q. No, the condition of the clothing, if there was anything unusual. A. I never noticed at the house at all. Q. I will show you what has been marked for identification as Plaintiff's Exhibit Number 47. Will you - A. (Interposing) That looks like Sharon's, yes. . . . Q. Now, after you called the police what, if anything, did you do? A. I came back home and asked her to take me out and show me where this happened. . . . Q. And where did you go when you went out? A. She showed me where he had came up behind her and put his hand over her mouth and drug her across the yard." Sharon Sharp, on direct examination, testified:

"Q. And now, Sharon, recalling your attention to Saturday evening of June 14th, 1958, will you tell the jury, please, where you were and what, if anything, occurred?A. Well, I was over at my girl friend's house, Daryl Lopay, and I started walking home. It was, oh, I don't know what time it was exactly; it was just about getting dark, and I started walking home, and on the way home just before I started to cross the street, I saw this Indian walking toward the Fountain Drug, and I didn't think anything about it. And so he kept on walking. When I got past the hedge down by our house, I heard something behind me and I turned around and there was this Indian. It was the same one that was walking down there, and he - I started to run, and when I was toward the driveway, I slipped and he grabbed hold of me. . .Q . . . . Go ahead and just tell the jury now in your own words what happened?A. Well, he grabbed ahold of me and then he told me if I yelled or said anything that he'd kill me, and - . . . Q. (By Mr. Olson) Now, Sharon, after you fell close to the driveway there and this Indian grabbed you and told you that if you screamed he'd kill you, what, if anything, happened? A. Well, we got up and he had my arm behind me and he took me over behind the hedge between the

614 STATE v. THOMPSON. [58 Wn. (2d)