Marlow v. State , 20 Okla. Crim. 326 ( 1922 )

It is first contended that the trial court erred in admitting over the objection of the defendant evidence of acts of sexual intercourse between the prosecuting witness and the defendant committed subsequent to the alleged acts relied upon for a conviction.

The state elected to rely upon an alleged act of sexual intercourse committed on the 5th day of April, 1918, and the prosecuting witness was permitted to testify that she and the defendant indulged in, under similar circumstances, frequent acts of intercourse at short intervals continuously from the date of the act relied upon up until the 3d day of February, 1919, and it is the evidence of the subsequent acts that is here complained of.

The decisions that evidence of acts of sexual intercourse, in a prosecution for statutory rape, committed prior to the act relied upon, is admissible, are practically unanimous. As to evidence of subsequent acts, the authorities are divided, but the trend of modern authority is to the effect that such evidence is admissible for the same reasons given in the decisions admitting evidence of prior acts. The extent to which such testimony may be admitted must be determined by the trial court in the exercise of a sound discretion, and the evidence must have a legitimate tendency to show a lewd and adulterous disposition between the parties and must reasonably indicate the continuity of such lascivious disposition. Within such proper limitations such evidence has the same tendency, in our opinion, as evidence of prior similar acts to establish the guilty relations between the parties, the existence of a sexual passion between them, as corroborative of the ultimate fact sought to be proven; that is, the act of sexual intercourse relied upon for a conviction. Such has been the former holding of this court on this question, and we see no reason to divert therefrom at this time. Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Penn v. State,13 Okla. Cr. 367, 164 P. 992, L.R.A. 1917E, 668; Taylor v. State,14 Okla. Cr. 400, 171 P. 739.

It is also contended that the trial court erred in admitting testimony to show that subsequent to the offense for which the defendant was prosecuted the prosecuting witness became pregnant and gave birth to a child. The prosecuting witness testified that she and defendant quit meeting on February 3, 1919; that they had intercourse on that occasion, and that she was in a family way; that a baby was born to her on June 6, 1919, and that defendant was the father of the baby; that she did not become pregnant until in September, 1918. All this evidence was admitted over the objection and exception of defendant's counsel. We think that this evidence was competent as corroborative of the intimate relations existing and continuing between the parties. The weight of the evidence was for the jury.

It is also contended that the trial court erred in permitting the prosecuting witness to explain the particulars under which certain acts of intercourse with other persons occurred. In this connection it must be noted that the defendant testified that he never commenced to have sexual intercourse with the prosecuting witness until in the latter part of August or the first of September, 1918. That was after the time, as the evidence discloses, that the prosecuting witness had reached the age of 16 years, and the defendant could not be convicted of statutory rape upon a female over the age of 16 years and under the age of 18 unless such female was of previous chaste and virtuous character. Having admitted his sexual relations with the prosecuting witness after she had reached the age of 16 years, the defendant, for the purpose of showing that he was not guilty of any offense under the law, asked the prosecuting witness on cross-examination if she had not committed acts of sexual intercourse with two other young men along about September, 1918, and the prosecuting witness replied that she had. On redirect examination the state sought to show the circumstances under which these other acts of intercourse were committed by the prosecuting witness, and the defendant objected thereto, which objection was overruled and exception taken. And the prosecuting witness was then permitted to explain that she and the defendant were in the pasture near her home about 100 yards from the highway between 11 and 12 o'clock at night; that she had had sexual intercourse with the defendant, and about the time the act was finished the other boy, who was a friend of the defendant, appeared upon the scene without any knowledge on her part, and remarked, "I have caught you, and you must do the same with me that you do with him;" and the defendant told her to "do it, or else they would be caught;" and that it was under such circumstances and at the defendant's solicitation and request that she had sexual intercourse with two other parties, who were brothers. While this evidence was immaterial and irrelevant either for the purpose of establishing the guilt or innocence of the defendant of the particular act of sexual intercourse alleged to have been committed with the prosecuting witness on the 5th day of April, 1918, still it was a matter that was brought out in the cross-examination of the prosecuting witness by defendant's counsel. After having elicited this particular evidence for the purpose of besmirching the character of the prosecuting witness, the defendant will not be heard to complain in this court of the action of the trial court in permitting the prosecuting witness to explain her conduct on such occasion.

It is also contended that the trial court erred in failing to instruct the jury specifically as to the purpose for which evidence of subsequent acts of intercourse were admissible. No request was made for any such instruction. The trial court gave an instruction as follows:

"You are instructed that the state has elected to stand upon the occurrence of April 5, 1918; and, unless you believe beyond a reasonable doubt that at that date the said Beulah Blankenship was under 16 years of age, and believe further that on that occasion the defendant succeeded in penetrating the private parts of said Beulah Blankenship, you should acquit him. But in this connection you are instructed that sexual penetration, however slight, is sufficient to meet the requirements of the law as to penetration."

In the absence of any request for a more specific instruction on the subject, we believe the foregoing instruction to have been sufficient to safeguard the substantial rights of the defendant, and did prevent his conviction upon evidence of any alleged act of sexual intercourse between him and the prosecuting witness, except the act alleged to have occurred on April 5, 1918.

The judgment is affirmed.

DOYLE, P.J., and BESSEY, J., concur.