Johnson v. State , 52 Okla. Crim. 397 ( 1931 )

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county of rape in the first degree, and was sentenced to serve a term of 15 years in the state penitentiary.

The only contention made for a reversal is that the evidence is insufficient to sustain the judgment.

The offense charged is rape by force, under the fourth subdivision of section 1834, Comp. St. 1921. The record discloses that at the time charged prosecutrix was between 18 and 19 years old; defendant, a married man, was 23 years of age, lived about 50 feet from the home of prosecutrix. She testified that at the time charged and just previous to the act of intercourse she was at home alone. That she twice went to the home of defendant to borrow ingredients for some cooking she was doing, the trips being about 10 minutes apart, and on the latter occasion she informed defendant and his wife that her parents were not at home. That soon thereafter defendant came to her house, ostensibly to borrow a brace and bit. While she was looking for it defendant came in the house and they went in the kitchen and he there made advances and began an attempt to have intercourse with her, during which they scuffled into the summer porch, where he did accomplish an act of sexual intercourse. That defendant did not threaten her in any way. That she did not make any outcry or any noise, but did scratch defendant's face. That in accomplishing the intercourse he tore her dress, but she wore it until she went to church that evening. That she did not tell her mother until the next morning. Defendant testified the statement of prosecutrix that she was at home alone was by previous arrangement with her under which she had agreed that he was to visit her, and she was to inform him when her parents were not at home. That he went to her house at the time he states and did have intercourse with her, but that it was with her voluntary consent. We deem it unnecessary to make further recital of the facts.

It is settled by many decisions of this court that a defendant may be convicted of rape upon the uncorroborated testimony of the woman. In a prosecution for rape by force overcoming resistance upon a woman above the age of consent, where the corroboration of the use of force is extremely slight and the testimony of the prosecutrix somewhat inconsistent and unsubstantial, this court will scrutinize the record with care. The age, surroundings, circumstances, situation, and conduct of the parties will be considered. Where no threats nor use of force are made to intimidate the female, where she is in easy call of others, if an outcry is made, and none is made, and no complaint is made for several hours, it appears improbable that any rape occurred, but rather that the intercourse was voluntary. MacLaurin v. State, 34 Okla. Cr. 324, 246 P. 669; State v. Hogg, 64 Or. 57, 129 P. 115; State v. Goodale,210 Mo. 275, 109 S.W. 9.

The conduct of defendant is despicable. No doubt the jury, justly indignant, felt he deserved punishment, and we sympathize with their desire to assess a penalty against him. In the light of the record, however, we are convinced the evidence of rape by force is insufficient to sustain the judgment, and the case must be, and is, reversed.

DAVENPORT, P. J., concurs. CHAPPELL, J., dissents.