¶1(dissenting) — I am unable to concur in the ruling made in this case. In the opinion of the majority it is assumed that the court, in that portion of the charge to the jury quoted therein, instructed them to the effect that, if they found that the prosecuting witness made complaint to another of the commission of the offense upon her at the earliest opportunity and immediately after the time the offense was committed, such complaint was a corroborating circumstance tending to show that the accused was the person who committed the rape. In my opinion the instruction quoted does not in the remotest degree bear this construction. It is a plain charge to the effect that proof of such complaint is corroborative evidence of the fact that the prosecuting witness has been raped; nothing more. And that such an instruction is sound law is conceded in the majority opinion itself. As therein stated, “It has always been the rule that evidence of complaint made soon after the outrage was perpetrated could be received either as original evidence, or to sustain the evidence of the prosecutrix if impeached;” and that, “It is settled by the great weight of authority that such evidence is received ... as corroborative proof that the complainant was in fact raped.” This being true, there was no error in the charge of the court, as it did no more than give the evidence that effect.
¶2But it is said further in this connection that the court should have charged the jury that corroboration arising from timely complaint could not be taken as corroboration tending to support the evidence of the prosecutrix in the particular that the appellant was the guilty person. Had a *66request been made for such an instruction, then unquestionably the court should have given it. But in this state mere nondirection, either partial or total, is not ground for a new trial. A party cannot, by excepting to a charge, make it the foundation for an assignment of error, merely because it is indefinite and incomplete. Counsel owe the duty to the court, in criminal as well as in civil cases, not to mislead it either by silence, artifice, or fraud. It is counsel’s duty, therefore, to call to the attention of the court any omission he may deem material in the court’s charge, and failure to do so is a waiver of the right to assign error upon it. State v. Parsons, 44 Wash. 299, 87 Pac. 349.
¶3In my opinion the judgment should be affirmed.
¶4Dunbar, J., concurs with Fullerton, J.