Watson v. Taylor , 35 Okla. 768 ( 1913 )

This was a civil action for damages, commenced by the plaintiff, Marietta Taylor, by her next friend, E. E. Taylor, for a rape committed upon her by the defendant, H. F. Watson. Upon trial to a jury there was a verdict for the plaintiff, upon which judgment was duly entered, to reverse which this proceeding in error was commenced. For convenience the parties hereafter will be called plaintiff and defendant, respectively, as they appeared in the court below.

The evidence of the plaintiff was to the effect that she was an unmarried female, seventeen years of age, of chaste character previous to the time of her relations with the defendant; that the defendant was a neighbor of her family, with whom she resided, and often visited their home on terms of friendly intimacy. That two or three weeks before Christmas, 1905, her mother sent her to the well near the house to get a pail of water; that just after she turned around to leave the well, the defendant came out of the dark, took hold of her arm and pushed her toward the orchard some twenty steps, and there threw her down and commenced to pull up her clothes; that she called to her mother, whereupon the defendant jumped up and ran away, warning her not to tell what had happened; that she did not tell what happened because she was afraid of the defendant. As to what was said and done on that occasion, she testified:

"A. He said come on and go with him; I said no; he said yes, come on; and I said no, and hollered for ma; but she didn't hear me; the house was shut up, and he taken me on down across the road, the road that led into the orchard, and he threw me down there."

That a short time after the incident at the well, she and her mother accompanied the Watson family to a box supper in the neighborhood; that, at the invitation of the Watson family, the Taylor family consented to remain over night at their home; that there were not quilts enough at the Watson home to provide for their guests, and the plaintiff and defendant and his daughter went to the Taylor home in a wagon to supply the deficiency; that, upon arriving at the Taylor home, the plaintiff told defendant and his daughter to go into the house and get the quilts, whereupon defendant required his daughter to hold the team and he accompanied plaintiff into the house; that, after entering the house, the defendant came into the room where the plaintiff was and threw a quilt on the floor and threw her down upon it, and attempted to take improper liberties with her; that, after struggling with him and pushing him away, he desisted, whereupon they all returned to the Watson home. That, a short time after this, the plaintiff remained overnight at the Watson home for the purpose of accompanying Mrs. Watson to Oklahoma City the next morning; that sometime during the night the defendant entered her room, lighted a match, and looked over at a bed where his two little boys were asleep, and then sat down on her bed; that he attempted to have sexual intercourse with her, but did not succeed, and left the room warning her that she "had best not tell anyone what had happened." That on the 14th of January thereafter plaintiff spent the night at the Watson home; that sometime during the night she awoke and saw the defendant standing by her bed. Her testimony as to what occurred is as follows:

"Q. You say when you woke up he was standing there? A. Yes, sir. Q. Did he say anything to you? A. Yes, sir. Q. What did he say? A. He said that I had better not tell it. I told him to get out of there, and he said no, and after he got in bed and had sexual intercourse he told me I had better not tell it. Q. What did he say before that? A. That it would not hurt me, or that he would either bet his farm or give his farm it would not hurt me or amount to anything. Q. Then what did he do? A. He went out and unlocked the door and went out in through the kitchen, and in about a half hour he came back in and did the same. Q. Did you scream out or holler? A. No, sir; I was scared. Q. Why didn't you scream out? A. Because I was so scared and nervous that I could not holler. Q. And what did you do, if anything, in resisting him? A. I turned over on my stomach, and he took hold of me and turned me back over."

On the 8th of the following October a child was born to the plaintiff which she testified was the fruit of her intercourse with the defendant. Plaintiff testified further as follows:

"Q. When was the first time you ever told anybody about this? A. The 30th of August. Q. The 30th of August, 1906; you say this last time occurred on the 14th of January, and you never told anybody about it until the 30th of August? A. Yes, sir. Q. You had been pregnant about seven months about that time, hadn't you? A. I guess so. Q. It was so that it was quite perceptible, wasn't it? A. Yes, sir. Q. And it got to where you could not conceal it any longer and you told your mother about it? A. She asked, and I told her. Q. Did you ever tell Watson anything about it — that you were in a family way? A. No, sir; I never did. * * * Q. And did you tell your folks about any of those incidents? A. No, sir. Q. Why didn't you? A. Because I was afraid to, and the shame and the disgrace of it."

The testimony of the plaintiff generally was to the effect that the act of sexual intercourse was accomplished against her will and in spite of all the resistance she could make under the circumstances, and that, although it was committed at a place where any considerable outcry would have been heard by members of the defendant's family, some of whom (three small children) were sleeping in the same room, she did not scream or cry out because she was "so scared and nervous" that she could not.

The defendant, in his own behalf, denied any sexual intercourse with the plaintiff and that he ever took any improper liberties with her, leaving her testimony otherwise uncontradicted. There was no attempt to show that the plaintiff was not of previous chaste and virtuous character, or that she ever had sexual intercourse with any other man than the defendant, or with him, except upon the occasions detailed by her in her testimony. Counsel for defendant states his first and principal contention as follows:

"The first assignment of error is that the court erred in overruling plaintiff in error's demurrer to the evidence of the defendant in error, introduced for and on behalf of the defendant in error in said cause. The court will observe that there is absolutely no testimony to show that the defendant Watson used any force or violence in accomplishing this alleged act. Nor was the plaintiff, Marietta Taylor, prevented from resisting, by threats of immediate or great bodily harm accompanied by power of execution. The court will also observe that at the time of this alleged assault the plaintiff was a woman weighing between 135 and 140 pounds; that there is no testimony that she made any resistance whatever, or that she made any outcry. Under these circumstances, we contend that the law presumes that she consented to this unlawful act of sexual intercourse, if there was any act of sexual intercourse, and if she did consent, she cannot recover in this action."

We cannot agree with counsel. It is true that the case was submitted to the jury upon the erroneous theory that in this jurisdiction consent and resistance are necessary elements to constitute the crime of rape upon a female of previous chaste and virtuous character, over the age of sixteen years and under the age of eighteen, but granting, as contended for by counsel for the defendant, that the cause must be determined here upon the same theory (Herbert v. Wagg et al., 27 Okla. 674,117 P. 209), it seems to us that there was sufficient evidence adduced at the trial tending to establish resistance and nonconsent to justify the trial court in submitting the cause to the jury, and to sustain the verdict returned.

In Kaufman v. Boismier, 25 Okla. 252, 105 P. 326, it is said:

"It has been held not only by this court, but also by the Supreme Court of the territory of Oklahoma, in numerous cases, that it will not disturb the verdict of a jury upon controverted questions of fact, and it is immaterial whether such questions arise from direct or circumstantial evidence. The jury had the opportunity of seeing the witnesses on the stand face to face and observing their manner, apparent fairness and candor, or want of it. This is not available to this court in a re-examination of evidence, and, where there is any reasonable evidence tending to support the verdict, it will not be disturbed here."

If this were a criminal case, where the prosecution is bound to prove the charge beyond a reasonable doubt, it would probably be controlled by People v. O'Sullivan, 104 N.Y. 451, 10 N.E. 880, and cases of that class, cited by the defendant. But here, whether the charge was established by a preponderance of the evidence largely depended upon the credit to be given to the testimony of the plaintiff, and that was a question for the jury.

The evidence shows the defendant to be a strong man, of mature years, with a large family, some of whom were grown at the time of the offense. His intimate and friendly relation with the family of the plaintiff gave him opportunities to discover that he wielded great influence over her and that on account of her youth and inexperience he could probably accomplish his evil purpose without great physical resistance. There is no evidence that the plaintiff sought the company of the defendant or threw herself in his way, or in any manner encouraged his advances, but, on the contrary, it all tends to show that he in every instance was the aggressor, and that he seized every opportunity to lay hold of her and forcibly carry her off in pursuance of his evil purpose, and that it was only after three unsuccessful attempts that he finally succeeded in overcoming her uniform resistance. As was said in a similar case:

"It is not often that such an assault is or can be described by a female with that complete fullness of detail with respect to every word spoken or every fact and circumstance that may enter into the questions of consent or resistance. When the proof is given, as it sometimes is, in general terms, the jury must still be satisfied that there was no consent, and that resistance was made to the extent of the woman's ability. What that ability was must in many cases depend not only upon her strength and power to defend herself or make herself heard, but also upon the element of fear, when it exists. The age, strength, and physical appearance of the parties, with the manner in which they testify, are elements of some importance which the jury may consider with all the other facts. The relation which the parties bear to each other, as in this case, may also be considered. Where on one side we find extreme youth, inexperience, and dependence united with the principle of fear and obedience, and on the other, mature age, great physical power, and dominating influence and control over the movements and will of another, the question of consent and resistance must be determined with reference to those conditions.

"When such a case arises, who is to determine when, as in this case, the girl, in stating the occurrence, states that she did not consent and did resist to the best of her ability, whether she tells the truth or not? Can this court, after the jury have accepted the plaintiff's version of the transaction and the General Term has approved the verdict, say, as matter of law, that there was no evidence for the consideration of the jury? This, I think, would be to transcend the limits of our jurisdiction as a court of law, without power to review disputed facts."

Dean v. Raplee, 145 N.Y. 319, 39 N.E. 952; Schenk v.Dunkelow, 70 Mich. 89, 37 N.W. 886; and Witzka v. Moudry,83 Minn. 78, 85 N.W. 911, are cases of this class wherein verdicts for the plaintiffs, rendered upon similar states of fact, were upheld on appeal.

Moreover, our statute provides (section 2353, Comp. Laws 1909) that all that is required to constitute the crime of rape is an "act of sexual intercourse accomplished with a female, not the wife of the perpetrator. * * * Where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character." The language of the statute is clear and unambiguous. It clearly eliminates the elements of consent and resistance from the case of an assault upon the class of females therein described. Its manifest purpose is to throw a protecting mantle about the female children of this state within certain ages, which the hand of the libertine may not withdraw except at his peril. The statute in effect says that chastity is such a precious gem in the crown of maidenly graces that it cannot be stolen or removed therefrom even with the consent of the wearer, without offending the majesty of the law. To prove that the female consented will not mollify the statute, neither should it avail as a defense to a civil action for damages for an assault upon her committed in such manner and under such circumstances as to constitute rape as defined by the statute. Altman v. Eckerman, 132 S.W. (Tex.) 523. Whilst we concede that under the authorities the case must be determined in this court upon the same theory upon which it was submitted to the jury, yet the reasons which induced the Legislature to pass the foregoing statute cannot be ignored. The statute is obviously based upon the principle that consent or nonresistance on the part of a girl of tender years is not to be understood in the same way as in the case of like acts committed upon a woman of more mature years. The jury could have taken the same view of the case.Dean v. Raplee, supra. It is impossible to lay down any general rule which shall define the exact line of conduct which shall be pursued by an assaulted female under all circumstances, as the power and strength of the aggressor, and the physical and mental ability of the female to interpose resistance to the unlawful assault, and the situation of the parties, must vary in each case. What would be the proper measure of resistance in one case would be totally inapplicable to another situation accompanied by differing circumstances. One person would be paralyzed by fear and rendered voiceless and helpless by circumstances which would only inspire another with higher courage and greater strength of will to resist an assault. A young and timid girl might be easily overpowered and deprived of her virtue before she had an opportunity to recover her self-possession, and realize her situation, and the necessity of the exercise of the utmost physical resistance in order to preserve her virtue. It would be unreasonable to require the same measure of resistance from such a person that would be expected from an older and more experienced woman, who was familiar with the springs and motives of human action, and acquainted with the means necessary to be used to protect her person from violence.

It is next contended that it was error for the trial court to permit a child two and one-half years old, alleged to be the fruit of the unlawful intercourse, to be exhibited to the jury over the objection of the defendant. The decisions in the various jurisdictions seem to be divided on this question. They are all collected in notes to State v. Danforth, 6 A. E. Ann. Cas. 557, and Rex. v. Hughes, 19 A. E. Ann. Cas. 534. In the Danforth case, decided by the Supreme Court of New Hampshire (73 N.H. 215, 60 A. 839), it was held:

"That in a prosecution for statutory rape, the child born to the prosecuting witness may be exhibited by the state to the jury for the purpose of establishing the facts of birth, and of prior unlawful intercourse."

The annotator says that the reported case is in accord with the preponderance of authority, which holds that where the putative father is in court and within the view of the jury, it is not improper to produce the child before the jury and to call attention to points of resemblance or difference between the two.

A more extended citation of the authorities will serve no useful purpose. It will suffice to say that, after a careful examination of all the cases called to our attention, we have reached the conclusion approved by Mr. Wigmore (1 Wig. Ev. sec. 166), that:

"The sound rule is to admit the facts of similarity of specific traits, however presented, provided the child is, in the opinion of the trial court, old enough to possess settled features or other corporal indications."

The other assignments of error relate to the pleadings and proceedings had below, and these we are required to disregard, unless they affect the substantial rights of the adverse party. Section 5680, Comp. Laws 1909. We have examined the record with considerable care, and cannot say that the errors complained of, if errors at all, injuriously affected any substantial right of the defendant. The court below submitted the case to the jury upon a theory which, according to our mind, cast an unnecessary burden upon the plaintiff, which she sustained to the satisfaction of the jury. The court below in examining the record, upon motion for new trial, was satisfied with the verdict, and that the defendant had a fair trial according to the forms of law, and, as we also are of that opinion, the judgment of the court below ought to be affirmed. It is so ordered.

HAYES, C. J., and WILLIAMS and TURNER, JJ., concur; DUNN, J., dissents.