Allen v. State
| Decision Date | 22 July 1913 |
| Citation | 134 P. 91,10 Okla.Crim. 55,1913 OK CR 256 |
| Parties | ALLEN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
On a trial for statutory rape, evidence of specific acts of unchastity on the part of the prosecutrix with others than the defendant is inadmissible, unless shown to be a part of the res gestæ, and it was prejudicial error to permit the prosecutrix to testify as to her acts of unchastity with others than the defendant, and not connected with the act charged in the information.
While as a matter of law, corroboration of the prosecutrix's testimony as to the fact of sexual intercourse is not essential to a conviction, yet where the issue of sexual intercourse is controverted, and the testimony of the prosecutrix bears upon its face inherent evidence of improbability, there must be corroboration by other evidence connecting the defendant with the commission of the crime especially must this rule be held applicable in a case where the prosecutrix has been successfully impeached.
Incompetent irrelevant, and immaterial evidence, which tends to excite the passions, arouse the prejudices, and awaken the sympathies, or warp or influence the judgment of jurors cannot be considered as harmless.
See opinion for evidence held insufficient to support the verdict and judgment.
Appeal from District Court, Pontotoc County; Tom D. McKeown, Judge.
John C. Allen was convicted of crime, and appeals. Reversed.
Stone & Maxey and Lieuallen & Shulte, both of Ada, for plaintiff in error.
Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Monroe Osborn, of Purcell, for the State.
John C. Allen, was convicted in the district court of Pontotoc county of the crime of rape alleged in the information to have been committed on one Era Allen, a female under the age of 16 years, on or about November 1, 1910, and his punishment was assessed by the jury. On July 31, 1911, he was sentenced to the penitentiary for a term of five years. The conviction rests solely upon the uncorroborated testimony of the daughter of the defendant, the female with whom the incestuous intercourse is alleged to have been committed. In the view we take of the record and the duty devolving upon this court as to the disposition to be made of the case, it is unnecessary, and would perhaps be profitless, to discuss and determine the questions arising upon the rulings of the court in relation to matters occurring preliminary to the trial upon the merits. The principal contention is that the evidence was insufficient to justify the verdict, and that errors were committed upon the trial, in admitting incompetent and rejecting competent testimony, which require that this court should reverse the judgment.
To a correct understanding of the case so far as it involves the sufficiency of the evidence to sustain the verdict, a summary of the prosecutrix's testimony is given, together with a transcript of the most material parts.
She testified that she was about 15 years of age, and was the daughter of the defendant; that during the year 1910, until in some time in October, she lived at home on her father's farm near Ahloso; that her father's family consisted of herself, one sister, and three brothers; that one brother was 12, another 10, and the other 6, and her sister was 9 years of age; that old Dick Townsend, a negro, stayed with the family. She then testified as follows:
"Q. Era, did ever anything wrong take place between you and old Dick. (The defendant's objection overruled, and exception.) A. Yes, sir. Q. Did ever anything wrong take place between you and your father? A. Yes, sir. Q. When was that? A. A few weeks before I went to Coffeyville, Kan. Q. Tell the jury what took place, what your father said to you. A. He said it wouldn't hurt, beings as I was already that way. Q. Did your father know your condition then? A. Yes, sir. Q. Were you in the family way at that time? A. Yes, sir; I was up before the grand jury the week before that. Q. Who come with you? A. Papa. Q. Did your father know who had done this to you? A. I don't know. Q. How did you happen to go to Coffeyville? Who suggested that you go up there? A. Papa and old Dick. Q. Who brought you to town? A. My oldest brother. Q. Did you have any money? A. Yes, sir. Q. Who gave it to you? A. Papa gave me some of it. Q. Where did you get the balance? A. From old Dick. Q. Who went with you? A. Old Dick went in the head car. Q. Who did you put up with there? A. A nigger family. Q. Who put you there? A. Old Dick. Q. How long had you been up there before you saw your father? A. Nearly two months. Q. How long did your father stay up there? A. He come one day and went home the next. Q. Was your baby born while he was there? A. Yes, sir. Q. Who was there when it was born?
Mr. Stone: Objected to as incompetent, irrelevant, and immaterial.
By the Court: Overruled.
A. Papa and the nigger family was there, and the doctor. Q. What doctor? A. Dr. Whitecombe. Q. What kind of a doctor was he?
Mr. Stone: Objected to as incompetent, irrelevant, and immaterial.
By the Court: Overruled.
Mr. Stone: We except.
Q. Was he a white man or a nigger? A. He was a nigger. Q. Did you know where old Dick was at that time? A. No, sir. Q. Did you know a Mrs. Williams at Coffeyville? A. Yes, sir. Q. You talked to her, and she talked to you about your trouble? A. Yes, sir. Q. I will get you to state to the jury if you did not lay your trouble on other people. Didn't you tell Mrs. Williams that it was other people than your father and old Dick who caused your downfall? Didn't you tell Mrs. Williams it was somebody else? A. At the start I did. Q. You told the grand jury it was somebody else, didn't you? A. Yes, sir. Q. Did you know Dr. Fortner at Coffeyville? A. Yes, sir. Q. You also at first told him about what you told Mrs. Williams, didn't you? A. Yes, sir. Q. Who moved you from there? A. My uncle, George Thompson, and George Moran. Q. Era, do you know what date your child was born? A. The 8th day of December."
On cross-examination she stated that in April, 1910, she became in the family way, and the negro Dick Townsend was the father of her baby; that another negro, Oscar Sims, worked there two or three weeks chopping cotton, and had intercourse with her five or six times; that at these times her father was away from home; that she had never told her father that she had been having intercourse with Dick Townsend and Oscar Sims; that at the time she left for Coffeyville, she had never told any person who was the father of the child; that when she returned from Coffeyville she stayed a few days at Mr. Lumpkin's, and about two months at Mr. Evans', and went from there to her Grandpa Moran's; that she had not been permitted to talk to any of her relatives, except George Moran and George Thompson; that the first person she told that her father had intercourse with her was Mrs. Williams, when she came down from Coffeyville and got the baby to carry it back to Kansas; that this was in February when she was at Mrs. Evans', and no other person was present at the time. She admitted that on the defendant's preliminary trial her testimony was that her father had intercourse with her about a week after Dick Townsend first had intercourse with her; that her father and her uncle George Thompson were on bad terms, and that her father and her stepmother had trouble and separated in January, 1910; that her stepmother's brother, Jeff Mills, was frequently at their home while her stepmother was there.
As a part of her cross-examination witness was asked the following questions and made thereto the following answers:
"Q. All right, I will ask you if on or about the 27th of December, 1910, at the home of Mrs. Williams in Coffeyville, Kan., you made this statement, or in substance this statement, to Mrs. Williams: That your father, John C. Allen, had nothing to do with and that he did not know of your wrong acts; that your father, John C. Allen, was innocent of having had any illicit intercourse with you? Did you make that statement? A. Yes, sir. Q. I will ask you to state if on or about the 27th of December, 1910, at the home of Mrs. Williams in Coffeyville, Kan., you made this statement, or in substance this statement, to Dr. Fortner: That the first time you ever did wrong was when you had intercourse with Jeff Mills, and that your stepmother made you submit to him? A. Yes, sir. Q. Who was Jeff Mills? A. Her brother. Q. I will ask you to state if at the same time and place you made statements to Dr. Fortner that your stepmother told you that she intended to ruin your father, John C. Allen, and that if you ever got caught and told any one that she was the cause of your downfall, she would put you out of the way, and you were afraid of her? Did you make this statement? A. I ain't sure. I think I did. Q. I will ask you if you did not swear that Jim Ivey was the father of your child, and that pursuant to that a warrant was issued, and he laid in jail for about six months; that you finally changed your mind about it and come up and had the case dismissed, and he was discharged? (Objected to as not the best evidence.)
By the Court: Sustained.
The defendant offers the record of the district clerk in the case of State v. Jim Ivey. "
George B. Thompson testified that he lived near Jesse, and went to Coffeyville with George Moran, who was a brother of Era Allen's mother, and there found her with a negro family and she had a baby two or three weeks old that appeared to be a "nigger baby"; that they placed her with a white lady by the name of Williams, called the "city missionary," and ten days later they brought her and the baby back to Ada, and on...
To continue reading
Request your trial