1 Reported in 145 P.2d 557. Defendant was found guilty by a jury of the crime of carnal knowledge. The complaining witness was fourteen years of age. The court entered judgment on the verdict and sentenced defendant to the penitentiary for a term of not more than twenty years. Defendant appeals.
Appellant does not challenge the sufficiency of the evidence *Page 54 to sustain the verdict, so it will be unnecessary to review the evidence. We may say, however, that two disinterested and unimpeached witnesses testified to the act charged in the information.
The only error assigned is that the court erroneously permitted the physician who examined the complaining witness to express his opinion that, judging from the condition in which he found her genital organs, she had had sexual intercourse many times. The manner in which the claimed error arose may best be understood by quoting from the testimony of the physician:
"Q. Have you ever made an examination of [the complaining witness]? A. Yes, sir. Q. When was the examination made? A. May I read from this (indicating)? Q. Yes. A. June 9, 1943. Q. Will you state to the jury and the court what the examination revealed?
"MR. ERVIN F. DAILEY: I object to that. That is too broad and probably calls for a conclusion. THE COURT: He is an expert witness and he is entitled to draw conclusions. MR. ERVIN F. DAILEY: I think that question is too broad. It is a very general question. THE COURT: Yes; it is general. That cannot be disputed. I think he had better limit it to the principal question in issue right now. We are not interested if she ever had the measles. MR. PEDEN: He will not testify to that. THE COURT: I think you should limit this a little bit and we will save a lot of time.
"Q. Did you make an examination of the sexual organs of [the complaining witness]? A. Yes, sir. Q. Will you state what the examination revealed in regard to her sexual organs? A. I examined her clinically, negative for G.C. No inflammation or trauma visible. Hymen ruptured. Grayish mucus, leucorrhea; menstruation regular; last menstruation May 28th; smear from the urethral orifice, the cervix and vagina, taken for G.C. 99-11-43; and smear negative. Q. In your opinion, did she ever have sexual intercourse?
"MR. ERVIN F. DAILEY: I object to that. A. Yes, sir. THE COURT: The answer may stand. Q. In your opinion, doctor, how many times would you say she has had sexual intercourse? MR. ERVIN F. DAILEY: If Your Honor please, counsel — I think the last question is — reversible error has been committed. I don't think the witness can testify she ever had sexual intercourse. He can testify to the conditions *Page 55 he found and it is up [to] the jury to determine what caused those conditions. I have a case on that question. THE COURT: Let me see your case you are referring to. MR. ERVIN F. DAILEY: I will furnish it. THE COURT: Let us have it now. There is no need going into anything that will be reversible error. MR. ERVIN F. DAILEY: I am not able to produce it now. I want to protect my record. THE COURT: You might assist the court, you know. Otherwise, if you do not I will hold you are precluded."
[1] The opinion of the physician was clearly inadmissible under the holding of this court in the case of State v. Acklus,126 Wash. 65, 217 P. 61, where the court said, p. 65:
"A physician was called by the state and testified to having made a physical examination of the prosecuting witness, and detailed the conditions which he found to exist. He was then permitted to testify, over the objection of appellant, that, in his opinion, the prosecuting witness had had sexual intercourse.. . .
"The rule appears to be that the opinions of physicians and surgeons may be received to show the physical condition of a person, the effect of physical injuries, by what means such injuries might have been inflicted, and the like; but that it is improper to permit such a witness to express his opinion as to how such injuries were actually inflicted, as that would be trespassing upon the province of the jury."
Appellant contends the verdict and the judgment in this case cannot stand in the face of that decision. Counsel for the state practically concede the point, for they ask us to repudiate the decision. Upon the record presented here, we do not find it necessary either to reverse the judgment or overrule the Acklus case.
[2] It is our opinion that, upon the record, appellant is in no position to claim prejudice upon the court's ruling. Reverting to the colloquy between the court and counsel, it is to be noted that counsel for appellant, in making his objection, said, "I have a case on that question." When asked by the court to produce it, he said, "I am not able to produce it now. I want to protectmy record." (Italics *Page 56 ours.) Counsel did not ask for a recess so that he might find the authority he had in mind, notwithstanding he or his associate in the trial was one of the attorneys for the defendant in the case of State v. Acklus. Surely, with a few minutes research, he could have found and presented to the court that authority.
From the character of the objection and the vague reference to "a case on that question," we think it is apparent that counsel was more interested in "protecting [his] record" — in injecting error — than he was in getting a correct ruling on his objection. To hold error committed under these circumstances to be prejudicial would make a travesty of the administration of justice. (It may not be amiss to note that the counsel appearing for appellant in this court did not participate in the trial of the case.)
[3] The judgment of conviction is affirmed. The cause, however, must be remanded, with direction that appellant be resentenced in conformity with the provisions of Laws of 1937, chapter 74, p. 321, § 1 (Rem. Rev. Stat. (Sup.), § 2436 [P.C. § 9108]).
SIMPSON, C.J., ROBINSON, and MALLERY, JJ., concur.