Louis v. State
| Decision Date | 06 September 1950 |
| Docket Number | No. A-11217,A-11217 |
| Parties | LOUIS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
1. 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 five 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.
2. It is well settled that in a prosecution for statutory rape, where there is evidence of more than one act of sexual intercourse between the defendant and prosecutrix upon which a conviction could be had, it is the duty of the trial court, upon motion, to require the state to elect upon which of the several acts it intends to rely for a conviction. If no motion is made to require the state to elect, the trial court of its own motion, should require the prosecution to elect upon which of said acts it will rely, or should treat the act of which the state first introduced evidence which tends in any degree to prove the offense as an election, and should by proper instruction limit the jury to a consideration of other acts as corroboration and as showing the relation of the parties.
3. While it is the law that a conviction for rape may be sustained upon the uncorroborated evidence of the prosecutrix, it is nevertheless equally well settled that, when such evidence is inherently improbable and almost incredible, there must be corroboration by other evidence as to the principal facts to sustain conviction.
4. In prosecution for rape, appellate court will make careful examination of whole record to end that it may justify sentence imposed notwithstanding general rule that, where there is any evidence to support verdict or where evidence is conflicting, appellate court will not examine record to ascertain or determine weight of such evidence, and verdict approved by trial judge will be permitted to stand.
5. A conviction for statutory rape will not be sustained where testimony of prosecutrix is obtained through fear, coercion, or duress, and is not corroborated by other competent evidence.
6. In prosecution for statutory rape, credibility of prosecutrix may be impeached by proof that she made statements relative to issues contrary to her testimony.
7. In prosecution for statutory rape, opportunity may be considered as one of the circumstances, but it is not corroborative, and cannot be considered on subject of corroboration.
8. Proof of absence of hymen four months after alleged statutory rape held not to constitute corroboration of prosecutrix.
9. Where defendant files brief, citing numerous authorities, to sustain assignments of error, and counsel for state files no brief, such action by counsel for state will be treated as a confession of error.
Tom Finney, I. C. Sprague, Idabel, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, Silas Louis, hereinafter referred to as defendant, was charged by information filed in the District Court of McCurtain County, with the offense of first degree rape. Pertinent allegations read: 'That is to say the said Silas Louis, in the County of McCurtain, State of Oklahoma, and on or about the 12th day of June [1947] then and there being, did then and there unlawfully, willfully and feloniously rape, carnally know and have sexual intercourse with Cleta Webb, a female person under the age of fourteen years, * * *.'
Defendant was tried before a jury, and the judgment and sentence of the court, entered October 12, 1949, was that he serve a term of 50 years imprisonment in the State Penitentiary. An appeal has been perfected to this court. Some 17 specifications of error are set out in the petition in error, but the case is argued under 5 propositions.
We shall first consider defendant's Proposition Two: 'That the trial court should have required the State to elect which of the acts in evidence it charged the defendant with, or have treated the first act on which the evidence was offered as an election and instructed the jury accordingly.'
It will be noted that the information charged that the rape took place on June 12, 1947, whereas the witness Cleta Webb testified after many leading questions by the county attorney, all of which questions were objected to by defendant's counsel, that some time about the middle of June, 1947, her mother went to Oklahoma City to see a doctor and that after she left her step-father took her into the bedroom and placed her on the bed and got on top of her and placed his private parts in hers; that she was 11 years of age at the time and had never before had intercourse with any one, but that it did not hurt much; that her brothers Robert, age 9, and Dalton, older than witness, had gone to the field to work; that on the night of this day she and Robert slept in the room with her step-father, the defendant, and that Dalton slept in the adjoining foom; and that defendant 'did the same thing that night', and that the next morning 'he did the same thing' and again that night 'did the same thing', and then her mother came home, but about one week later in the woods 'he did the same thing', thus making five separate acts.
Counsel for defendant did not interpose a motion to require the state to elect upon which of the several acts it intended to rely for a conviction. The trial court did not require such an election or consider this matter in the instructions given, but instructed the jury:
In the absence of request by counsel for defendant, the court should have treated the act claimed to have taken place on the morning the defendant's wife left the home for Oklahoma City as an election, and by proper instruction have limited the jury to a consideration of such particular act as a basis for conviction, and have limited the consideration of the other acts as corroborative and as showing the relation of the parties.
In the case of Kilpatrick v. State, 71 Okl.Cr. 129, 109 P.2d 516, 517, this court had this question for consideration, and there stated:
In Cooper v. State, 31 Okl.Cr. 217, 238 P. 503, 504, we said:
And see the late case of Cambron v. State, 86 Okl.Cr. 437, 193 P.2d 888, as well as the cases cited in the above opinion.
Counsel further contends: 'That the evidence adduced at the trial was insufficient to sustain a conviction of rape.'
This necessitates a consideration of the facts and circumstances surrounding this case, as disclosed by the evidence.
Oral argument was had in this case on April 19, 1950, and the Attorney General practically admitted the strength of the position of counsel for defendant, and has not filed a brief in answer. This is practically a confession of error. We find from the record that the defendant is a full-blood Choctaw Indian; that he has been a resident of McCurtain County all his life, except a period during the war when he worked in a war plant in Oklahoma City; that on the 8th day of July, 1941, he married a widow, Susie Webb, who at the time of marriage had five children; that defendant took his new family to live on his allotment north of Hochatown.
To prove its case the State used four witnesses: Cleta Webb, step-daughter and alleged victim, Dalton Webb, step-son, and two physicians. The evidence discloses that the conviction was had on the uncorroborated testimony of the defendant's step-daughter, Cleta Webb. At the trial she testified that she was then 12 years of age (October, 1948); that in June, 1947, she and her two brothers Robert and Dalton (at the time of trial, aged 9 and 15 years respectively), lived with their mother, Susie Louis, and their step-father, Silas Louis, at Hochatown, in McCurtain County; that about the middle of June her mother went to Oklahoma City; that the morning her mother left her said two brothers went to the field to work; that after they left her step-father took her into the bedroom and placed her on the bed, got on top of her and placed his privates in hers, as heretofore recited. She testified to three more acts...
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