State v. Wisdom , 122 Or. 148 ( 1927 )

McBRIDE, J.

We are not authorized to inquire into the comparative weight of the evidence for or against the defendant, but merely to pass upon the question as to whether there was any competent and substantial evidence upon every fact necessary to constitute the crime. As to the first objection urged, failure to prove the age of Vivian Dodson, the evidence is clear and overwhelming that she was under 16 years of age. Her father, her mother and her sister all testified to this fact, and the certificate of birth, while it would have been admissible, was not legally required. The second objection, that the state failed to prove that she was not the wife of defendant is negatived by the testimony of her mother who testified that she had never been married to anybody, and there is abundant circumstantial evidence to the same effect. The third objection, that there is no proof of any penetration of the body of Vivian Dod son by the defendant is not tenable as shown by her testimony in which she says positively that he had sexual intercourse with her, and she repeated it time and time again that he inserted his sexual organ into her both times. She seemed to be a fairly intelligent witness, in her second year of high school and perhaps, unfortunately for her, more mature than she should be for her age.

It is not necessary to go over all the disgusting particulars; but the testimony of the prosecutrix, which the jury had a perfect right to believe, was sufficient to take the case to the jury and to convince them that the sexual act had been completed as far as the law requires to constitute statutory rape.

The first objection to the instruction designated in the objection No. 2 is not tenable. The words “a female child in this state is deemed incapable of giving consent to the sexual act,” if they stood by themselves might be misleading to the jury, but the court gave a practical definition of what is meant by a female child by saying to the jury that, if Vivian Dodson was under the age of sixteen and not the wife of the defendant, and if defendant was a male person over the age of eighteen, the other elements of the crime being present and incorporated in the instruction, the defendant might be found guilty whether Vivian Dodson consented or not, and, considered as a whole, the instruction was absolutely correct.

The second objection, which is designated instruction No. 3 in the objection to it, is absolutely correct and is the law at the present time in most of the states of the Union. "We lay it down here, if there is the slightest penetration within the labia of the female organ, that is sufficient to constitute statutory, rape, and without regard to the extent of the pentration -if the other elements of the crime are present.

The objection to defendant’s first requested instruction, designated in the brief as No. 2, is not well taken. It is not the province of the court to single out the testimony of particular witnesses in the case and thereby suggest to the jury the weight that should be given to it.

The next objection designated in the brief as defendant’s requested instruction No. 4, is sufficiently covered by the general instructions given by the court and therefore unnecessary. The court is not bound to give the instruction in the language requested if the substance of it is given. The refusal of the court to give defendant’s instruction, designated in the brief as instruction No. 5, was proper. It consisted of calling the jury’s attention pointedly to certain circumstances shown, or attempted to be shown, in the testimony, and then to say that these circumstances alone would not be sufficient to convict the defendant, but that the fact of penetration must be found beyond a reasonable doubt. The court had already instructed the jury upon this point, that penetration must be shown, and it was unnecessary to repeat this instruction. As we said before, it is usually improper for the court to single out certain items of testimony and lay particular stress upon them unless circumstances would seem imperatively to so require, which is not this case.

The court’s general charge sufficiently instructed the jury that a mere attempt to commit the crime unaccompanied by penetration would be insufficient to convict the defendant, and that, if they found that he had only proceeded so far as to make an uncompleted attempt, they should acquit him.

Defendant’s requested instruction No. 6 is subject to the same criticism as the preceding in struction, and was properly refused. The next instruction, designated in the defendant’s brief as instruction No. 8, was also properly refused. This was an attempt to define the degree of penetration and uses the words “into the labia of the female organ having mucous membrane.” The rule as held in this state, and generally, is that any penetration into the labia of the pudendum is sufficient, the pudendum being the external female sexual organ. It is difficult to see how the extent of the penetration could make any difference in a case of this kind, the injury being to the morals and reputation of the child, which would be as great where there is a very slight penetration not passing beyond the labia majora as it would be where the penetration extended beyond that point into the labia minora and against the hymen. "Whatever may have been the ruling of the courts a hundred years ago or so, they are not now astute to find excuses for that class of degenerates who corrupt the morals and bodies of children by requiring any particular depth of penetration so long as there is even the slightest penetration as the testimony of the state indicates to have been the case here.

On the whole, we find no reversible error in this case, but, on the contrary, the case seems to be very clearly established; and it is difficult to see how the jury could have come to any other conclusion than that arrived at. The judgment is affirmed.

Affirmed.