King v. State

The information charged rape by force and violence overcoming resistance under the fourth subdivisions of section 1834, Compiled Statutes 1921. Section 1837, Id., provides:

"Rape committed by a male over eighteen years of age upon a female under the age of fourteen years, or incapable through lunacy or unsoundness of mind of giving legal consent; or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases rape is of the second degree."

The undisputed evidence was to the effect that the defendant at the time of the alleged conviction of this crime lacked about 2 weeks of being 18 years of age. Under the foregoing statutory provision the trial court held, although the evidence disclosed that, if the crime of rape was committed at all, it was committed by force and violence overcoming resistance, that nevertheless, because the defendant was at that time under the age of 18 years, and the prosecutrix over 14 years of age, the crime was second degree rape, and the court so instructed the jury, and the verdict was for guilt of second degree rape, with punishment fixed as above stated. The question of whether or not this is the first or second degree rape is not raised in this appeal.

The first assignment of error relates to the alleged insufficiency of the evidence. While it is admitted that a conviction for rape in this jurisdiction may be had on the uncorroborated testimony of the prosecutrix, it is in this connection contended that because of the inherently improbable and almost incredible testimony of the prosecutrix there should have been corroboration by other evidence as to the principal facts in order to sustain a conviction. Morris v. State,9 Okla. Cr. 241, 131 P. 731, and other cases.

We deem it unnecessary to enter into a discussion of the revolting details of this alleged crime. An extended synopsis of the testimony of prosecutrix and defendant is given above, and it is sufficient to say that the court does not concur in the view that the circumstances show a lack of corroboration of the testimony of the prosecutrix, but, on the other hand, the court is of the opinion that the circumstances testified to by other witnesses, the conduct of the prosecutrix, and even the testimony of the defendant himself, point unerringly to the truth of the matters testified to by the prosecutrix, and that the evidence as a whole is sufficient to sustain the verdict and judgment. The jury saw the witnesses, were in a position to judge of the truth of the testimony to much better advantage than is this court, and it has never been the policy of this court to reverse a judgment of conviction based upon competent evidence if from such evidence the jury was authorized reasonably to conclude that the accused was guilty of the crime charged.

It is also contended that the trial court erred in permitting counsel for the state to ask certain improper questions on cross-examination of some of the defendant's witnesses, and also of the defendant himself. An examination of the record discloses that as to these particular assignments of error the questions and answers were given either without any objection interposed by counsel representing the defendant, and without any motion whatever to withdraw the same from the consideration of the jury, or else where objection was made the trial court sustained the same. We find, therefore, no action of the trial court adverse to the defendant upon which he can base error in this court. The questions propounded were inquiries into the occupations, social relations, and manners of living of the witnesses, and, while the form of the questions may have been somewhat objectionable, the subject-matter inquired into was proper on cross-examination. Musgraves v. State, 3 Okla. Cr. 421,106 P. 544; Terry et al. v. State, 7 Okla. Cr. 430, 122 P. 559; Fowler v. State, 8 Okla. Cr. 130, 126 P. 831. Where the subject-matter inquired into was proper, and no timely objections interposed to the form of the questions propounded, the error assigned is purely technical, and presents no substantial ground for reversal.

Counsel for defendant requested that the opening argument of the special prosecutor for the state be taken in shorthand. This was complied with, and it is contended that certain remarks made by counsel for the state in the opening argument were highly inflammatory, improper, and clearly prejudicial to the defendant. We have examined that portion of counsel's opening argument incorporated in the record, and find that on four different occasions counsel for the defendant interposed objections, only one of which was overruled, and on the other three occasions counsel for the state was admonished by the court to keep within the record, and only on one occasion did counsel for the defendant save any exception to the ruling of the court. It is complained that counsel called defendant a "creature," and appealed to the jury as "100 per cent. Americans to stand on the side of this little girl and against the libertines." In referring to the defendant as a "creature" counsel enlarged upon the evidence, and it is apparent that such reference was a deduction which counsel considered the evidence justified. If the story told by the prosecuting witness was true, and the jury believed it, no language could adequately describe one who was guilty of such a heinous offense. The appeal to the jury as "100 per cent. Americans" is condemned. Especially if it were made at a time when the conditions throughout the state were such as they are today, no one could successfully contend but that it was an appeal to prejudice; but such appeal evidently fell on deaf ears in this case. If it was the purpose of the prosecuting attorney by such appeal to prejudice the jury against defendant, it is apparent from this record that it entirely failed to accomplish such purpose. Evidently the jury resented such reference, or else the jury would not have fixed the punishment at the minimum provided by statute for such offense.

In the body of the opinion in Edwards v. State,9 Okla. Cr. 306, 131 P. 956, 44 L.R.A. (N.S.) 701, this court said:

"Counsel for appellant complained of remarks made by the county attorney in his closing argument to the jury. It is not necessary, however, for us to discuss in detail the nature and character of the remarks made, because upon a consideration of the entire record it affirmatively appears that appellant was not injured thereby. If the minds of the jurors had been misled or inflamed against appellant by anything said by the county attorney, they never would have found appellant guilty of manslaughter in the first degree, when the evidence makes out a plain case of a brutal and cowardly murder."

Also it has been repeatedly held by this court that remarks of the prosecuting attorney in his argument must be considered and construed in reference to the evidence, and in order to constitute reversible error the impropriety indulged in must have been such as may have influenced the verdict. Morgan v. State,9 Okla. Cr. 22, 130 P. 522; Thacker v. State, 3 Okla. Cr. 485,106 P. 986; Williams v. State, 4 Okla. Cr. 523, 114 P. 1114. Whatever may be said of the inflammatory nature of the opening argument of the special prosecutor in this case, it is apparent from the verdict returned that it had no prejudicial effect upon the jury, and constitutes no good ground for reversing this judgment.

The testimony as we view it strongly tends to show the defendant's guilt, and we find little in the case to make us look with favor upon the objections urged by the defendant. The trial was eminently a fair one. The jury were fully and properly instructed as to the law, and they found the defendant guilty of the offense charged, assessing only the minimum punishment. We find no good reason for disturbing this verdict.

The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.