Kilpatrick v. State

Decision Date15 January 1941
Docket NumberA-9847.
Citation109 P.2d 516,71 Okla.Crim. 129
PartiesKILPATRICK v. STATE.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Syllabus by the Court.

1. Since rape is not a continuous offense and every act of sexual intercourse is a separate and distinct offense, where there is testimony of more than one such act introduced by the prosecution, the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else the court should treat the act of which the state first introduced evidence, tending in any degree to prove the offense, as an election and give a specific instruction limiting the jury to a consideration of this particular act as a basis for a conviction.

2. In a trial upon a charge of rape, proof of other acts of intercourse may be shown for the purpose of corroboration and as showing the relation between the parties; but a conviction must be based on one act. Where, as in this case, the defendant is not tried with reference to one particular act but two separate and distinct acts, reversible error is committed when the prosecution is not required to elect one specific act and the trial court fails to treat the first act proven as an election.

3. The rule is well settled that where there is evidence tending to prove the commission of an offense which is necessarily included in the offense charged, it is error for the trial court to refuse to instruct the jury of their right to convict of the lesser offense.

4. Where the proof shows that the prosecutrix was nineteen years old and the defendant twenty years of age at the time of the alleged offense, and the information recites and the state relies upon the fact that the defendant used force which overcame the resistance of the prosecutrix to constitute the crime of rape in the first degree, and the defendant denies having sexual intercourse with the prosecutrix, but admits propositioning her to commit the act, the court should have given an instruction submitting the issue as to whether the defendant was guilty of the offense of assault with intent to commit rape and, also, the offense of assault and battery.

Appeal from District Court, Woodward County; J. W. Bird, Judge.

Charles Kilpatrick was convicted of rape in the first degree, and he appeals.

Reversed and remanded.

A. W Billings, of Woodward, and Mauntel & Spellman, of Alva, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen for defendant in error.

JONES Judge.

On March 27, 1939, the defendant, Charles Kilpatrick, was charged in the District Court of Woodward County with the crime of rape upon Glenna Endsley on March 13, 1939, was tried, convicted, and sentenced to serve a term of fifteen years in the State Penitentiary, from which judgment and sentence he appeals to this court.

The state introduced testimony that the defendant through threats and force overcame the resistance of the prosecutrix and twice had sexual intercourse with her against her will during the same evening. The prosecutrix testified that these two acts were committed while the defendant, his brother, Earl Kilpatrick, the prosecutrix, another girl whom Earl Kilpatrick is alleged to have raped, and three other younger people were out riding in a coupe belonging to the Kitpatrick brothers. The acts of intercourse are claimed to have happened on two occasions when the car stopped and the parties took a walk away from the car. The state refused to elect, and was not required to elect by the trial court, which of the two offenses it would rely upon for a conviction in this case.

The testimony of the defendant was that he propositioned the prosecutrix and that she refused to grant his request unless he would use a contraceptive. He denies that they lay together at that time. However, later that same evening he again expressed his desire to her, and she acceded so readily as to take off her pants herself so that he could "do it right."

The defendant contends that the trial court committed reversible error in refusing to require the state to elect upon which of the two alleged offenses it would rely for conviction, and in refusing to give certain instructions to the jury.

This court held in Smith v. State, 20 Okl.Cr. 124, 201 P. 663: "Rape is not a continuous offense. On the evidence in this case every act of sexual intercourse testified to by the prosecutrix constituted a distinct crime, and the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else the court would have treated the act of which the state first introduced evidence to tend in any degree to prove the offense as an election and should have given a specific instruction limiting the jury to a consideration of this particular act as a basis for a conviction." Timmons v. State, 44 Okl.Cr. 200, 280 P. 314.

In Cooper v. State, 31 Okl.Cr. 217, 238 P. 503, 504, this court stated: "The holdings of this court *** may be summarized by saying that a person may be tried for and convicted for only one offense at a time; that rape is not a continuous offense, and while in a trial upon a charge for rape proof of other acts of intercourse may be proven for...

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10 cases
  • Jackson v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • July 21, 1943
    ... ... many cases that have been decided. Some of these cases are: ... Weston v. State, 138 P.2d 553; Coppage v ... State, 137 P.2d 797; McComas v. State, 131 P.2d ... 488; Duggins v. State, 135 P.2d 347; Gordon v ... State, 131 P.2d 503; and Kilpatrick v. State, ... 128 P.2d 246 (none of which have yet been reported in the ... Oklahoma Criminal Reports); Williams v. State, 65 ... Okl.Cr. 336, 86 P.2d 1015; Williams v. State, 68 ... Okl.Cr. 348, 98 P.2d 937; Kitchen v. State, 61 ... Okl.Cr. 435, 69 P.2d 411; Kitchen v. State, 66 ... Okl.Cr ... ...
  • Parrott v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • April 9, 1974
    ...of a lesser and included offense where there is evidence tending to prove the commission of this lesser crime. Kilpatrick v. State, 71 Okl.Cr. 129, 109 P.2d 516 (1941); Stiles v. State, 53 Okl.Cr. 187, 9 P.2d 58 (1932). Therefore, in the instant case there has to be some evidence of the les......
  • Fitzpatrick v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • March 17, 1948
    ... ... evidence as applicable to rape and incest cases, and they ... have been followed by the later decisions of this court: ... Weston v. State, 77 Okl.Cr. 51, 138 P.2d 553 and all ... cases cited therein; Self v. State, supra; Kilpatrick v ... State, 75 Okl.Cr. 28, 128 P.2d 246 and 71 Okl.Cr. 129, ... 109 P.2d 516; Williams v. State, 61 Okl.Cr. 396, 68 ... P.2d 530; Coppage v. State, 76 Okl.Cr. 428, 137 P.2d ...          Without ... quoting extensively from these cases, it may be stated that ... it has been ... ...
  • Barnett v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • February 18, 1977
    ...Thoreson v. State, 69 Okl.Cr. 128, 100 P.2d 896 (1940); Inklebarger v. State, 8 Okl.Cr. 316, 127 P. 707 (1912); Kilpatrick v. State, 71 Okl.Cr. 129, 109 P.2d 516 (1941); Palmer v. State, Okl.Cr., 327 P.2d 722 (1958). Since this contention is merely a restatement of the law discussed above i......
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