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149 P.

2d 152
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Page 1

Supreme Court of Washington.


STATE
v.
SCOTT.
No. 29251.
May 25, 1944.
Department 1.
Jack Scott was convicted of carnally knowing a female child of the age of fourteen years, she not then being his
wife, and he appeals.
Affirmed.
West Headnotes
[1] Witnesses 410

240(3)

410 Witnesses
410III Examination
410III(A) Taking Testimony in General
410k239 Leading Questions
410k240 In General
410k240(3) k. What Are Leading Questions in General. Most Cited Cases
The principal test of a leading question is whether it suggests the answer desired, so that if question directs
attention of witness to specific matter concerning which his testimony is desired, but does not suggest the answer, it
is not leading.
[2] Witnesses 410

240(3)

410 Witnesses
410III Examination
410III(A) Taking Testimony in General
410k239 Leading Questions
410k240 In General
410k240(3) k. What Are Leading Questions in General. Most Cited Cases
Even though question may call for a yes or no answer, it is not leading for that reason, unless it is so worded that, by
permitting the witness to answer yes or no, he would be testifying in the language of the interrogator rather than in
his own.
[3] Witnesses 410

240(9)

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149 P.2d 152


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20 Wash.2d 696, 149 P.2d 152
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410 Witnesses
410III Examination
410III(A) Taking Testimony in General
410k239 Leading Questions
410k240 In General
410k240(9) k. Questions in the Alternative. Most Cited Cases
The alternative form of question may or may not be objectionable as leading, according to the amount of palpably
suggestive detail which it embodies.
[4] Witnesses 410

240(9)

410 Witnesses
410III Examination
410III(A) Taking Testimony in General
410k239 Leading Questions
410k240 In General
410k240(9) k. Questions in the Alternative. Most Cited Cases
In prosecution for carnally knowing a female child of age of 14 years, she not then being defendant's wife, questions
in alternative form asked of prosecuting witness were not objectionable as leading.
[5] Witnesses 410

226

410 Witnesses
410III Examination
410III(A) Taking Testimony in General
410k226 k. Discretion of Court. Most Cited Cases
Witnesses 410

240(2)

410 Witnesses
410III Examination
410III(A) Taking Testimony in General
410k239 Leading Questions
410k240 In General
410k240(2) k. Discretion of Court. Most Cited Cases
The trial court has a wide discretion in determining what is proper form of question and as to permitting the asking
of a question that is leading.
[6] Criminal Law 110

386

110 Criminal Law


110XVII Evidence
110XVII(I) Competency in General
110k386 k. Nature and Source of Evidence. Most Cited Cases
Criminal Law 110

736(1)

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149 P.2d 152


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Page 3

110 Criminal Law


110XX Trial
110XX(F) Province of Court and Jury in General
110k733 Questions of Law or of Fact
110k736 Preliminary or Introductory Questions of Fact
110k736(1) k. In General. Most Cited Cases
In prosecution for carnally knowing a female child of age of 14 years, she not then being defendant's wife, testimony
of witness regarding conversation she overheard between prosecuting witness and defendant was admissible where
there was evidence that witness was able to identify the voices of the parties to the conversation, and it was question
for jury whether witness did overhear the conversation and whether she had sufficient knowledge of sound of voices
of the parties to enable her to identify them.
[7] Criminal Law 110

1144.15

110 Criminal Law


110XXIV Review
110XXIV(M) Presumptions
110k1144 Facts or Proceedings Not Shown by Record
110k1144.15 k. Custody and Conduct of Jury. Most Cited Cases
(Formerly 110k1144(15))
Where unsuccessful attempt was made to lay foundation for testimony of witness and court instructed jury not to
consider as evidence any question or answer thereto to which court had sustained an objection, Supreme Court
would assume that jury followed the instruction.
[8] Criminal Law 110

1169.5(2)

110 Criminal Law


110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1169 Admission of Evidence
110k1169.5 Curing Error by Withdrawal, Striking Out, or Instructions to Jury
110k1169.5(2) k. Particular Evidence or Prosecutions. Most Cited Cases
(Formerly 110k1169(5))
Unsuccessful attempt to lay foundation for testimony by questions preliminary in character was not ground for
reversal where court instructed jury not to consider as evidence any question or answer thereto to which court had
sustained an objection.
[9] Criminal Law 110

433

110 Criminal Law


110XVII Evidence
110XVII(P) Documentary Evidence
110k431 Private Writings and Publications
110k433 k. Letters and Telegrams. Most Cited Cases
In prosecution for carnally knowing a female child of age of 14 years, she not then being defendant's wife, letters
which prosecuting witness identified as having been written by defendant to her and which she received through the
mail were admissible where they contained matters material to issue involved.

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149 P.2d 152


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[10] Criminal Law 110

Page 4

444.9

110 Criminal Law


110XVII Evidence
110XVII(P) Documentary Evidence
110k444 Authentication and Foundation
110k444.9 k. Business Records; Books of Entry. Most Cited Cases
(Formerly 110k444)
In prosecution for carnally knowing a female child of age of 14 years, she not then being defendant's wife, hotel
register card purporting to show that defendant and wife registered at certain hotel on a date within time involved
was sufficiently identified to warrant its admission in evidence, where witness testified that cards were kept by her
while she was operating hotel in their usual place in office of hotel and that they were also kept filed in a box in
storeroom directly behind office and that she found card there when she went to look for it, although witness did not
operate hotel at time of trial.
[11] Rape 321

38(3)

321 Rape
321II Prosecution
321II(B) Evidence
321k37 Admissibility
321k38 In General
321k38(3) k. Corroboration of Female in General. Most Cited Cases
In prosecution for carnally knowing a female child of age of 14 years, she not then being defendant's wife, hotel
registration card purporting to show that defendant and wife registered at a certain hotel on a date within time
involved in the case was material in that it corroborated testimony of prosecuting witness that she had occupied a
room with defendant at the hotel on or about the date mentioned on the card.
[12] Criminal Law 110

1130(3)

110 Criminal Law


110XXIV Review
110XXIV(I) Briefs
110k1130 In General
110k1130(3) k. Form. Most Cited Cases
Allegedly erroneous instructions which were not set out in appellant's brief as required by court rule would not be
reviewed. Rules of the Supreme Court, rule 16(5).
[13] Criminal Law 110

1059(2)

110 Criminal Law


110XXIV Review
110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review
110XXIV(E)2 Exceptions
110k1059 Scope and Effect of Exception
110k1059(2) k. Necessity of Specific Exception. Most Cited Cases
Exception to instruction for reason that it did not accurately portray law applicable was insufficient. Rules of
Pleading, Procedure and Practice, rule 10.

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149 P.2d 152


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[14] Criminal Law 110

Page 5

1059(2)

110 Criminal Law


110XXIV Review
110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review
110XXIV(E)2 Exceptions
110k1059 Scope and Effect of Exception
110k1059(2) k. Necessity of Specific Exception. Most Cited Cases
Exception to instruction for reason that it did not fully explain to jury the application of the law therein set forth was
insufficient. Rules of Pleading, Procedure and Practice, rule 10.
[15] Criminal Law 110

1059(2)

110 Criminal Law


110XXIV Review
110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review
110XXIV(E)2 Exceptions
110k1059 Scope and Effect of Exception
110k1059(2) k. Necessity of Specific Exception. Most Cited Cases
Exception to instruction for reason that it was incomplete and did not fully set forth law applicable to the case was
insufficient. Rules of Pleading, Procedure and Practice, rule 10.
[16] Criminal Law 110

1059(2)

110 Criminal Law


110XXIV Review
110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review
110XXIV(E)2 Exceptions
110k1059 Scope and Effect of Exception
110k1059(2) k. Necessity of Specific Exception. Most Cited Cases
The purpose of rule providing that exceptions to instruction shall be sufficiently specific to apprise the judge of the
points of law or questions of fact in dispute is in aid of orderly administration of justice. Rules of Pleading,
Procedure and Practice, rule 10.
*697 **153 Appeal from Superior Court, Snohomish County; Charles R. Denney, judge. A. E. Dailey, of Everett,
for appellant.
Leslie R. Cooper, C. P. Brownlee and Thomas G. McCrea, all of Everett, for respondent.
*698 GRADY, Justice.
The appellant, Jack Scott, was tried before a jury upon the charge that he carnally knew a female child of the age of
fourteen years, she not then being his wife. A verdict of guilty was returned, and, from the judgment entered, this
appeal has been taken.
In view of the questions raised by the appellant in his brief, it will not be necessary to set forth in this opinion a

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summary of the evidence relating to this unfortunate affair, and we shall refer to it only in so far as need be in order
to discuss the questions presented.
By his assignments of error, the appellant complains that the trial court (1) allowed leading questions to be asked of
the complaining witness, (2) allowed the testimony of the witness Emily Bergin to be considered by the jury, and (3)
allowed the jury to consider the testimony of the witness Martha Swartz. We shall discuss and decide the questions
raised in the foregoing order.
First. The questions claimed by the appellant to have been of a leading character, and to which timely objections
were made, were what is known as the alternative forms of questions, and they and their answers were as follows:
Q. I will ask you whether or not he said why he had done what he did? * * * A. He said that why he done that was
because he thought that was the only way of getting me; that he loved me and he wanted to marry me and that he
thought that was the only way to get me. He said he thought If I were to go in and touch you then you would marry
me, he said, I thought I wouldn't have no one as old as me.
Q. I will ask you whether or not he said on the same occasion, he said anything relative to his being the first to
touch you? * * * A. Yes.
Q. I will ask you whether or not he ever asked you to get examined by a doctor? * * * A. Yes, he did. I mean yes, I
mentioned wanting to get examined by a doctor.
[1][2][3] We have not had called to our attention any case in this court, nor have we been able to find any, in which
it has been decided whether this form of question is regarded as leading. The principal test of a leading question is:
Does it suggest the answer desired? In order to elicit the *699 facts, a trial lawyer may find it necessary to direct the
attention of a witness to the specific matter concerning which his testimony is desired, and, if the question does not
suggest the answer, it is not leading. Even though the question may call for a yes or a no answer, it is not leading for
that reason, unless it is so worded that, by permitting the witness to answer yes or no, he would be testifying in the
language of the interrogator rather than in his own. We approve of what is said with reference to the alternative form
not being a leading question in III Wigmore on Evidence (3d Ed), p. 129, 772(2): The alternative form of question
(State whether or not you said that you refused, Did you or did you not refuse?) is free from this defect of form,
because both affirmative **154 and negative answers are presented for the witness' choice. Nevertheless, such a
question may become leading, in so far as it rehearses lengthy details which the witness might not otherwise have
mentioned, and thus supplies him with full suggestions which he incorporates without any effort by the simple
answer, I did, or I did not. Accordingly, the sound view is that such a question may or may not be improper,
according to the amount of palpably suggestive detail which it embodies.'
[4][5] The questions propounded, as above set forth, were not leading. The rulings made by the trial court upon the
objections made are further supported by the fact that the answer to the first question is as fully explanatory as
would have been the case had any other form of question been used, and shows a total lack of suggestion by its
form. The record shows that, after an affirmative answer was given to the second question, the witness was asked
what was said, and her answer was ordered stricken by the court, and the inquiry was not pursued further. The third
question did not suggest any particular answer, as that given by the witness clearly so indicates. In addition, the rule
has been announced many times by this court that the trial court has a wide discretion in determining what is a
proper form of question and as to permitting the asking of a question that is leading. *700 The trial court in this case
properly allowed the above-quoted questions to be asked.
[6] Second. The appellant contends that the testimony of witness Emily Bergin should have been stricken by the

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court because it was conjectural on her part and arose out of suspicion rather than being based upon any testimonial
knowledge she possessed.
The substance of the testimony of this witness, as developed by both her direct and cross-examination, was that the
family, of which the prosecuting witness was a member, had an apartment in the house operated by her; that she had
seen the appellant go to this apartment, particularly a short time before the taking place of the conversation about
which she testified; that she had heard appellant talk and was able to recognize his voice; that, on the occasion in
question, she was passing by the apartment when she overheard a conversation between the prosecuting witness and
the appellant, and this she related to the jury.
We are of the opinion that it was made to appear from the testimony of the witness that she had sufficient
testimonial knowledge as to the identity of the parties to the conversation to justify the court in refusing to order that
her testimony be stricken and in permitting the jury to consider it. The testimony of the witness was direct and with
reference to a conversation she had overheard, and what the jurors had to decide was whether she did overhear the
conversation and whether she had sufficient knowledge of the sound of the voices of the parties as to enable her in
this way to identify them. In these respects, we think questions for the jury were presented.
[7][8] Third. This assignment of error is without merit. Counsel for the state sought to lay a foundation whereby he
might ask witness Martha Swartz to relate a conversation she overheard between the prosecuting witness and the
appellant. But, in the opinion of the court, it was not sufficient, and the witness was not permitted to relate the
conversation when counsel asked her to do so.
*701 The court instructed the jury not to consider as evidence any question or answer thereto to which the court had
sustained an objection, and we must assume that the jury followed the instruction and did not attach any importance
to any of the preliminary testimony given by the witness. This must necessarily be so because otherwise an
unsuccessful attempt to lay a foundation for testimony by questions preliminary in character would be ground in all
cases for urging error on appeal on account of the possibility that the jury might draw some unfavorable inference
from the testimony thus far given.
[9] In addition to the specific assignments of error ser forth in his brief, the appellant urges that certain letters were
erroneously admitted in evidence; but the prosecuting witness identified all of them as having been written by the
appellant to her and letters which she received through the mails. They contained matters material to the issue
involved, and were properly received in evidence.
[10][11] Error is also claimed in the admission in evidence of a hotel registration card purporting to show that
appellant and wife registered at a certain hotel on a date within the time involved in this case. The basis of the
objection of appellant is that it was made to appear that, although the witness who identified the card **155 had
operated the hotel on the date the card bears, she did not operate it for several months prior to the time of giving her
testimony, and there was no proof offered as to its identity by any one who had had possession of the card during the
intervening time. The record, however, does not support this claim. The witness testified that the registration cards
were kept by her while she was operating the hotel in their usual place in the office of the hotel; that they were also
kept in the storeroom directly behind the office, were filed in a box, and that this was where she found the card when
she went to look for it. The card was sufficiently identified to warrant its admission in evidence. The evidence was
material in that it corroborated the testimony of the prosecuting witness that she had occupied a room *702 with the
appellant at this hotel on or about the date noted on the card.
[12][13][14][15] Three of the instructions given by the court to the jury are claimed to be erroneous, but we will not
review them for the reason that they are not set out in appellant's brief, as required by Rule 16(5) of this court as

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amended, 15 Wash.2d xvii. State v. Elwood, 193 Wash. 514, 76 P.2d 986; State v. Jensen, 194 Wash. 515, 78 P.2d
600; State v. Kennedy, Wash., 142 P.2d 247. And no sufficient exceptions were taken to them in the trial court, as
provided by Rule 10 of the Rules of Pleading, Procedure and Practice prescribed by this court, 193 Wash. 47-a.
State v. Eckert, 173 Wash. 93, 21 P.2d 1035; Parton v. Barr, 174 Wash. 314, 24 P.2d 1070.
The exceptions taken were as follows:
The Defendant excepts to Instruction No. 5 as given by the Court for the reason that it does not accurately portray
the law applicable to this case.
The Defendant excepts to Instruction No. 6 for the reason that it does not fully explain to the Jury the application
of the law therein set forth.
The Defendant excepts to Instruction No. 8 as given by the Court for the reason that it is incomplete and does not
fully set forth the law applicable to this case.
These exceptions were too general to comply with Rule 10, which provides that they shall be sufficiently specific
to apprise the judge of the points of law or questions of fact in dispute.
[16] It may seem that these rules are harsh when applied to a case as serious in its consequences as the one now
before us. But they have been in effect for a long time and are known, or should be known, to all who seek reviews
of judgments of the trial courts. Their purpose, as we have said many times, is in aid of the orderly administration of
justice, and, if they are to serve the purpose intended, they must be enforced.
The judgment is affirmed.
SIMPSON, C. J., and BEALS, STEINERT, and JEFFERS, JJ., concur.
Wash. 1944
State v. Scott
20 Wash.2d 696, 149 P.2d 152
END OF DOCUMENT

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