Wines v. State , 7 Okla. Crim. 450 ( 1912 )

The information contains two counts. The first charges that in Washita county on or about the 20th day of July, 1910:

"Did then and there, willfully, unlawfully, intentionally, feloniously, make an assault in and upon one Willie T. Dekle and ravish and have sexual intercourse with the said Willie T. Dekle, a female not the wife of the said J.E. Wines, and said act of sexual intercourse being then and there feloniously accomplished by the said J.B. Wines, with the said Willie T. Dekle, by force and violence without the consent and against the will of the said Willie T. Dekle. The said Willie T. Dekle resisting said J.B. Wines to prevent said act of sexual intercourse, but her resistance being overcome by the said J.B. Wines by force and violence contrary to," etc.

Any by the second count it was charged that:

"On or about the 20th day of July, 1910, same being the time, place, and by the same act mentioned and set out in the first count of this information, commit the crime of rape in and upon one Willie T. Dekle, the person mentioned and set out in the first count of this information in the manner and form as follows, to wit: Did then and there, willfully, unlawfully, intentionally and feloniously commit an act of sexual intercourse accomplished with the said Willie T. Dekle, a female, and did then and there carnally know her and have sexual intercourse with her; the said Willie T. Dekle being then and there at the time of having said sexual intercourse as aforesaid with the said J.B. Wines under the age of sixteen years, and the said Willie T. Dekle was then and there not the wife of the said J.B. Wines at the time of said act of sexual intercourse, contrary to," etc.

Upon arraignment the defendant filed a motion to quash the first count of the information, for reasons in substance as follows: That said count is in conflict with section 17 of art. 2 of the Bill of Rights of the Constitution of the state, in that said count charges the defendant with the commission of the crime of rape in the first degree, said defendant never having a preliminary examination before a committing magistrate on any such charge, nor ever having waived such preliminary examination. Second. That on the 22nd day of July, 1910, a complaint was filed in the county court of Washita county charging the defendant with the crime of rape on or about the 19th day of July, 1910, with one Willie T. Dekle, a female under sixteen years of age and not the wife of the defendant, and pursuant to said complaint a warrant was issued and the defendant arrested. On the 24th day of July he was arraigned on said complaint, waived a preliminary examination, and was bound over to await the action of the district court. Which motion was duly verified by the defendant. The overruling of this motion by the trial court is assigned as error.

Section 17 of the Bill of Rights prescribes:

"No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination."

That the defendant did not have a preliminary examination before an examining magistrate, or did not waive such preliminary examination, is a fact to be established by the defendant on a plea in abatement or on a motion to quash. Williams v. State,6 Okla. Cr. 373, 118 P. 1006.

The defendant having waived his right to a preliminary examination, and no testimony having been taken, the county attorney was authorized to file an information in the district court for the offense charged in the preliminary complaint before the examining magistrate. The preliminary complaint in this case charged the crime of rape, and was sufficient to sustain either count of the information filed in the district court. There can be no question but that the defendant's constitutional right to a preliminary examination was fully accorded in this case, and that the trial court properly overruled the motion to quash the information.

Certain assignments of error are predicated upon the rulings of the trial court in admitting and excluding evidence. No useful purpose would be served in discussing those in detail, for the reason that on the undisputed facts, in our opinion, the verdict of guilty of rape in the first degree is contrary to the law and to the evidence.

Rape and its degrees are defined in our Penal Code as follows:

Section 2353, Comp. Laws 1909:

"Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: First. Where the female is under the age of sixteen years. Second. Where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character. Third. Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent. Fourth. Where she resists, but her resistence is overcome by force and violence. Fifth. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution. Sixth. Where she is prevented from resisting by any intoxicating, narcotic, or anesthetic agent, administered by or with the privity of the accused. Seventh. Where she is at the time unconscious of the nature of the act, and this is known to the accused. Eighth. Where she submits under a belief that the person committing the act is her husband, and this belief is induced by artifice, pretense or concealment practiced by the accused, or by the accused in collusion with her husband with intent to induce such belief. And in all cases of collusion between the accused and the husband of the female, to accomplish such act, both the husband and the accused shall be deemed guilty of rape."

Section 2356:

"Rape committed upon a female under the age of fourteen years, or incapable, through lunacy or any other unsoundness of mind, of giving legal consent, or accomplished by means of force overcoming her resistance, is rape in the first degree."

Section 2357:

"In all other cases, rape is of the second degree."

Section 2358:

"Rape, in the first degree is punishable by imprisonment in the state prison not less than ten years."

Section 2359:

"Rape in the second degree is punishable by imprisonment in the state prison not less than five years."

In order to support a conviction of rape in the first degree under the first subdivision, it must appear from the evidence that the female was under the age of fourteen years; and under the fourth subdivision, it must appear from the evidence that the defendant, with force and violence sufficient to overcome any resistance she might make, accomplished the act of sexual intercourse.

It is undisputed that at the time in question the prosecutrix was over the age of fourteen years. An act of sexual intercourse accomplished with a female, not the wife of the perpetrator, over the age of fourteen years and under the age of sixteen years, is rape in the second degree, whether such act is accomplished by means of force and violence sufficient to overcome any resistance she might make, or with her consent. The law conclusively presumes that the female, being within the age fixed by the statute, is incapable of consenting, and therefore the act is by force and violence.

Where the female is over the age of sixteen years and under the age of eighteen years, and of previous chaste and virtuous character, it is also rape in the second degree; yet the defendant may be charged, as in the first count of this information, with rape in the first degree, where the proof shows the female to be over sixteen years of age and the qualifying clause of the second subdivision has been omitted.

The anomalous provision in the Penal Code that makes the offense rape in the second degree is commented on in the case ofMyers v. State, 6 Okla. Cr. 389, 119 P. 136.

While the evidence on the part of the state tended to show that the prosecutrix was under the age of sixteen years, the evidence offered by the defendant tended strongly to show that she was over the age of sixteen years.

The testimony on the part of the state tends to show two acts of sexual intercourse without the consent and against the will of the prosecutrix, and that she was prevented from resisting through fear. This, under the statute, could only be rape in the second degree. To support a conviction for rape in the second degree, under the fifth subdivision, the evidence must show threats of immediate and great bodily harm, accompanied by apparent power of execution. Not only this, but the prosecutrix must have believed at the time that such threats would be carried into execution if she did not submit to the act. Nothing less would justify a conviction. If the verdict had been rape in the second degree, we would yet have great doubt whether it should be upheld, under the evidence in the case.

The testimony of the prosecutrix that the defendant had sexual intercourse with her, and that she submitted through fear or the dread of greater violence, is without corroboration of any kind, and, while the testimony of the prosecutrix, uncorroborated, may be sufficient to justify a conviction for rape under our statute, in order to do so her testimony should stand unimpeached. The evidence shows that her person bore no marks or bruises, and that her underclothes were neither stained nor torn; that she was examined by two physicians on the request of the prosecution a few days after the alleged outrage, and they found no injuries, laceration, or inflammation of her genital organs, except the absence of the hymen, and they did not undertake to determine or state the cause of its absence. On their cross-examination they stated that the absence of the hymen does not of itself prove that a woman has had sexual intercourse. From their testimony and that of other physicians who testified as experts on the part of the defendant, indications of a recent rupture of the hymen will last from eight to twenty days. The testimony of the physicians, taken as a whole, tends to discredit the testimony of the prosecutrix as to the violation of her person. The evidence shows that the home of the defendant was near a public road; that the doors and windows of the house were open day and night; that defendant each day worked on his farm, distant from the house, and that there was no time after the first attempt to ravish her that prosecutrix testifies to, that she could not have left the defendant's home and gone to the neighbors for protection. That there was nothing unusual in her appearance to the lady she visited at Sentinel the day following the alleged outrage, and her failure to disclose the fact of the alleged outrage at the first opportunity is a strong circumstance casting great discredit on her testimony and tends strongly to disprove the truth of the accusation. It is the natural impulse of every honest and virtuous female to flee from threatened outrage, and if assaulted to make complaint at the first opportunity, and where this is not done and no reasonable explanation is made it is a strong, but not a conclusive, presumption against the truth of the accusation.

By prompt disclosure the injured party is thereby shielded from unjust inferences and society guarded in a measure against the possible machinations of designing and evilminded females.

Says Mr. Bishop:

"The real facts in a case of alleged rape are commonly known only to the defendant and the complaining woman. And she may be honest or dishonest, free from guile or a crafty plotter against him, moved by a sense of justice or by a desire to conceal the shame of having voluntarily surrendered her virtue. If she speaks truth, no completely satisfactory confirmation of her testimony can often be had; if falsehood, nothing is so difficult as for the defendant to make the falsity appear. His temptation to clear himself by foul means, where he cannot by fair, is very great; hers may be, but it is not necessarily, almost as strong to convict him by perjury where the truth will not avail. Therefore it cannot be otherwise than that convictions will sometimes be wrongly had, and sometimes the guilty will go free, and there should be a conviction only on the clearest and most convincing proofs. In consequence of this, the law not only permits the ordinary tests to be applied to the complaining witness, but it has some special ones not permissible in other cases; as * * *

"On ordinary grounds, anything which the woman said or did of the res gestae of the ravishment will be admissible in evidence. And there is considerable room for strengthening her testimony in this way, especially where she exhibits marks of violence in connection with expressions indicative of her physical condition. But aside from and beyond this it is competent to show by her, or by others, or both, that after the alleged rape, especially recently after, she complained of it to suitable persons, and exhibited, if such was the fact, marks of violence and other like indications; as confirmatory of her sworn testimony. It is of special practical importance that the complaint was recent, and explanations of any delay are competent. But the doctrine in strict law appears to be that delays, especially if not great, only weaken the effect of her evidence with the jury." (2 Bishop New Cr. Pro., secs. 962 and 963.)

The trial court refused to give a requested instruction defining rape in the second degree under the fifth subdivision. Under the evidence in this case this was clearly error.

The court failed to instruct the jury that if they should find the prosecutrix, at the time alleged, was over the age of fourteen years and under the age of sixteen years, then in any event the offense could only be rape in the second degree. The omission to properly instruct on this phase of the case was also error.

For the reasons stated, the judgment of the district court of Washita county is reversed.

FURMAN, P.J., and ARMSTRONG, J., concur.