State v. Crowder, 119 Wash. 450, 205 Pac. 850 (1922).


 450    STATE v. CROWDER.
                Opinion Per TOLMAN, J.           119 Wash.

      [No. 16881. Department One. April 8, 1922.]
      THE STATE OF WASHINGTON, Respondent, v. JOHN R.
                CROWDER, Appellant. 1

RAPE (21) - EVIDENCE - ADMISSIBILITY - PERSONAL RELATIONS -

OTHER ACTS. In a prosecution for statutory rape upon a child under
the age of consent, evidence of the details of other acts of sexual
intercourse is admissible in corroboration of the prosecutrix,
where the time covered was but two months, during which their
relations were continuous.

WITNESSES (84, 94) - CROSS-EXAMINATION - ACCUSED AS WITNESS -

CONSTITUTIONAL PRIVILEGE. While accused, by taking the stand,
submits himself to proper cross-examination upon a pertinent
subject, yet, under Const., art. 1, SS 9, providing that no
person shall be compelled to give evidence against himself,
such cross-examination (aside from impeachment) must be based
only upon subjects opened up by his examination in chief.

SAME (84, 94). In a prosecution for statutory rape, on a day
certain, in which the accused took the stand and testified to
forming an acquaintance with the prosecutrix, but that the same
had terminated prior to the day in question, it is a violation
of his constitutional right against self incrimination to compel
him, on cross-examination, to testify to acts of intercourse with
the prosecuting witness on three or four occasions, one being
the act relied on by the state.

Appeal from a judgment of the superior court for
Skagit county, Brawley, J., entered April 26, 1921,
upon a trial and conviction of rape. Reversed.

George A. Joiner and R. V. Welts, for appellant.

W. L. Brickey and W. H. Hodge, for respondent.

TOLMAN

TOLMAN, J. - This is an appeal from a judgment entered
upon a verdict of guilty of the crime of carnally
knowing a female child under the age of eighteen
years.


1 Reported in 205 Pac. 850.

                STATE v. CROWDER.                     451
 Apr. 1922          Opinion Per TOLMAN, J.

While a number of assignments of error are made,
those chiefly argued and relied upon may be grouped
under two heads, and we will confine ourselves to the
two questions thus presented.

It is conceded that, in cases of this character, the
prosecuting witness may testify to acts of intercourse
other than, and prior in time of occurrence to, the one
upon which the defendant is being tried, as showing
the relations of the parties, and tending to corroborate
other evidence going directly to the offense charged.
But it is contended that the details of such prior acts
are inadmissible, and more especially that subsequent
acts and the details thereof are wholly inadmissible
for any purpose. As to the inadmissibility of the
details, appellant cites and relies upon State v. Sigler,
116 Wash. 581,200 Pac. 323, and State v. McDonald,
116 Wash. 668, 200 Pac. 326; but these cases each
deal with a wholly different and independent crime,
the details of which would have no bearing upon the
issue being tried, and are not controlling upon the
question here presented. In this case the prosecuting
witness was examined in chief as to her relations with
the accused from the beginning to the end of them,
the time covered being less than two months, and there
being no break in the relations during that period, the
prosecutor amounting that he would, in due time,
elect as to which particular act be would rely upon for
conviction. Any one of the acts detailed by the witness
would have been sufficient under the information.

"The general rule that evidence of other crimes is
inadmissible does not apply to proof of other acts of
sexual intercourse between the parties in statutory
rape cases, that is, in prosecutions for rape on a
female under the age of consent, or on a woman imbecile,
even though such other acts constitute separate
and distinct crimes. Provided they are not too remote

 452    STATE v. CROWDER.
                Opinion Per TOLMAN, J.           119 Wash.

in time or otherwise, such other acts are relevant and
admissible to show the lustful disposition of defendant
as well as to show the existence and continuance of the
illicit relation, to characterize and explain the act
charged, and to corroborate the testimony of the
prosecutrix as to that act. Evidence of acts prior to the
one charged is quite generally held admissible, and,
except in a few jurisdictions, evidence of subsequent
acts is also admissible." 16 C. J. 608.

See, also, State v. Fetterly, 33 Wash. 599, 74 Pac.
810.

We hold, therefore, that, under the conditions here
shown, the evidence of the details of what later proved
to be prior and subsequent acts was properly admitted.

The second question relates to the cross-examination
of the accused, who presented himself as a witness
in his own behalf. On direct examination he testified
that he became acquainted with the prosecuting witness
and called at her home quite frequently; that he
ceased to call upon her about April 1920 (a time subsequent
to the particular act which the state elected
to rely upon), and that he had not called upon her or
been out with her at any time during certain subsequent
months. This, with the details of an offer and
certain efforts to marry the prosecuting witness, comprise
the gist of his testimony in chief, so far as it is
now material. On cross-examination, over strenuous
and detailed objections, he was compelled to testify
that he did have intercourse with the prosecuting witness
on three or four occasions, one being the act upon
which the state elected to rely.

Appellant, in support of his position that such
cross-examination constitutes reversible error, relies on SS 9
of art. I, of our state constitution, which reads:

"No person shall be compelled in any criminal case
to give evidence against himself, or be twice put in
jeopardy for the same offense."

                STATE v. CROWDER.                     453
 Apr. 1922          Opinion Per TOLMAN, J.

and upon Rem. Code, SS 2148 (P. C. SS 9241), which,
among other things, provides:

". . . any person accused of any crime in this
state, by indictment, information, or otherwise, may,
in the examination or trial of the cause, offer himself,
or herself, as a witness in his or her own behalf, and
shall be allowed to testify as other witnesses in such
case, and when accused shall so testify, he or she shall
be subject to all the rules of law relating to
cross-examination of other witnesses."

And also, upon Rem. Code, SS 2152 (P. C. SS 9218),
which provides:

"The rules of evidence in civil actions, so far as
practicable, shall be applied to criminal prosecutions."

As to the constitutional question, there is no doubt
that, when the accused takes the witness stand in his
own behalf and by his testimony in chief opens up a
pertinent subject, he thereby submits himself to proper
cross-examination on such subject, and may not prevent
or defeat cross-examination thereon by claiming
the protection of the constitutional provision. State
v. Duncan,
7 Wash. 336, 35 Pac. 117, 38 Am. S't. 888;
State v. Melvern, 32 Wash. 7, 72 Pac. 489; State v.
Hill, 45 Wash. 694, 89 Pac. 160; State v. Peeples,
71 Wash. 451, 129 Pac. 108; State v. Morden,
87 Wash. 465,
151 Pac. 832; and State v. Brooks, 89 Wash. 427,
154 Pac. 795. In most, if not all, of the cases just cited
the rule is laid down expressly, or by necessary
implication, that a defendant in a criminal case, who
voluntarily takes the witness stand in his own behalf, is
subject to all the rules relating to the
cross-examination of other witnesses.

Upon the subject of the cross-examination of the
accused, there seems to be at least three fairly well
defined rules: first, the English or orthodox rule, to
the effect that the taking of the witness stand is a

 454    STATE v. CROWDER.
                Opinion Per TOLMAN, J.           119 Wash.

complete waiver as to all facts, including those which
merely affect credibility; second, that the waiver extends
only to matters relative to the issue, and does
not permit cross-examination on collateral matters
such as merely affect credibility; and third, the rule,
usually rounded on a statute, which subjects the accused
to such cross-examination as may be given to
other witnesses, or (leaving out the question of impeachment,
not material here) permits of cross-examination
based only upon subjects opened up by his
examination in chief. This is generally referred to
as the "American rule," and is thus defined in 28
R. C. L. SS 194, p. 604:

"Until 1827, the orthodox rule seems to have been
almost universally followed. But in a Pennsylvania
case decided in that year it was said that a witness
might not be cross examined to facts which are wholly
foreign to what he had already testified. Subsequently
the broad rule was laid down by the United States
supreme court, that a party has no right to cross examine
any witness except as to facts and circumstances
connected with the matters stated in his direct examination.
If he wishes to examine him as to other matters,
he must. do so by making the witness his own,
and calling him as such in the subsequent progress of
the cause. This rule, commonly known as the 'American
rule,' has now become firmly established in the
federal courts and in the courts of most jurisdictions
of this country. The reasons usually designed for its
adoption are that it prevents a confusion of the cases
made out by the opposing witnesses, and places the
parties on an equal footing, preventing either from
having an unfair advantage over the other in the matter
of cross examination. Under this rule a witness
may not be asked any question on cross examination
which does not tend to rebut, impeach, modify, or explain
any of his testimony. Of course it is error for
the trial court to refuse to permit the cross
examination of a witness to extend to all matters germane to

                STATE v. CROWDER.                     455
 Apr. 1922          Opinion Per TOLMAN, J.

the direct examination, as such a cross examination is
a matter of absolute right and is not a mere privilege.
In those jurisdictions where the American rule is followed,
the courts frequently say, in effect, that a party
to a cause may not introduce a defense by cross examining
his adversary's witness as to matters not
germane to the direct examination, but if a question
is within the scope of the direct examination it is not
objectionable on cross examination because it tends
to establish a defense to the action."

This rule has been so largely adopted and followed
in this country that it seems unnecessary to cite
further authorities, though it must be admitted that
there are some seeming inconsistencies in its application.
While this court has never passed squarely upon
this question in a criminal case, yet in civil cases there
remains no doubt, and from the language of the statutes
quoted and the expressions contained in our cases
hereinbefore cited, it cannot be doubted that we are
bound to the doctrine of the modern, or American rule,
and it only remains to apply it to the facts in this
case.

It is argued by the state that, when the appellant
testified to an acquaintance with the prosecuting witness,
and that he had called at her home quite frequently,
he thereby opened up the whole subject of
his relations with her. If the facts testified to in
chief had directly, or by inference, tended to dispute
or deny the charge, there might be force in this position;
but, as we view it, the testimony referred to had
no such possible effect. An acquaintance usually precedes
such acts as are here charged, but such acts do
not invariably, or even usually follow an acquaintance
between persons of the opposite sex, and if the evidence
was material at all, it tended towards corroboration
of the state's evidence rather than otherwise. The

 456    STATE v. CROWDER.
                Opinion Per TOLMAN, J.           119 Wash.

purpose of cross-examination is to break or weaken the
force of the testimony given in chief; it must be used
as a shield and not as a sword, and as the state had
already, as a part of its own case, offered evidence to
prove the identical facts testified to on direct
examination by appellant, it could hardly have desired, by its
cross-examination, to accomplish the legitimate result
of breaking or weakening appellant's testimony in that
respect. Moreover, the testimony elicited on
cross-examination had no such purpose or effect, but its
evident purpose, which was fully accomplished, was to
cause the appellant to incriminate himself. This, in
State v. O'Hara,
17 Wash. 525, 50 Pac. 477, 933, it was
held, could not be done.

The other assignments of error have been considered,
but deeming them not well taken, we do not consider
it necessary to discuss them.

For the reasons indicated, the judgment must be
and it is reversed, and the case remanded for a new
trial.

PARKER, C. J., MITCHELL, and BRIDGES, JJ., concur.