Bohanon v. State, A-12200

• Decision Date: 26 October 1955
• Docket Number: No. A-12200,A-12200
• Citation: 289 P.2d 400
• Parties: Robert Lee BOHANON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 400

289 P.2d 400

Robert Lee BOHANON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12200.

Criminal Court of Appeals of Oklahoma.

Oct. 26, 1955.

Syllabus by the Court.

1. On appeal from a conviction of rape this court will review the whole record to determine whether the evidence as a whole is sufficient to sustain the judgment and sentence, to the end that justice may prevail and injustice be avoided.

2. Where two defendants, one the husband of the prosecuting witness, were charged jointly with first degree rape, but a severance was granted and the jury found the defendant, husband of the prosecuting witness, guilty of rape in the second degree and assessed the punishment at 15 years in the penitentiary, such punishment found not to be excessive under the evidence and circumstances of the case.

Appeal from the District Court of Oklahoma County, A. P. Van Meter, Judge.

Robert Lee Bohanon was convicted of the crime of rape in the second degree, sentenced to serve 15 years in the State Penitentiary, and appeals. Affirmed.

Homer Thompson, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

The plaintiff in error, Robert Lee Bohanon, hereinafter referred to as defendant, was charged jointly with one James W. Walker with the crime of rape in the first degree, alleged to have been committed by Walker, through connivance with and active aid of Bohanon, on Bohanon's wife. Bohanon was tried first and the jury found him guilty of rape in the second degree, and fixed his punishment at the maximum of fifteen years confinement in the State Penitenitary.

Co-defendant Walker, who testified for the State, was permitted to sign his own bond without co-signers, and it is stated in brief of the defendant that some six jury dockets for trial of criminal cases have been set in Oklahoma County since his release on bail, without Walker being brought to trial.

The charge was based on the provisions of Tit. 21 O.S.1951 § 1111, reading:

'Rape Defined. Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:

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'5th. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution.

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'8th. * * * And in all cases of collusion between the accused and the husband of the female, to accomplish such act, both the husband and the accused shall be deemed guilty of rape.'

As pointed out by counsel for the defendant, the above statutory provisions have been considered at length in the early case of Myers v. State, 19 Okl.Cr. 129, 197 P.884 18 A.L.R. 1057. Also see for further treatment the case of Duggins v. State, 76 Okl.Cr. 168, 135 P.2d 347.

But one proposition for reversal is advanced, and being that 'The evidence is insufficient to warrant a conviction.'

We have had the benefit of oral argument in this case, and the public defender, Homer Thompson, has filed an excellent brief on behalf of the defendant. His admirable representation of the defendant is to be commended.

The picture disclosed by a careful study of the record is not a pretty one. We deplore the necessity of recitation. Defendant and his wife, according to some five photographs in the record, lived in a slum district of Oklahoma City. There were but two squalid houses nearby. Defendant Bohanon and his wife Myrtle had been married in July, 1945 and had three children, ages 7 and 4 years, and the youngest 20 months of age. They did not have a bath room, the toilet was out side, and at the time the crime charged was alleged to have been committed, the lighting of the house was by candle. In order to pay her rent, the wife took the three children, when the eldest was not in school, to a dump yard some two blocks away each day where she did housework for the owner, who lived in motor bus bodies that were fixed up for a home.

On the morning of the day of the crime in question, defendant left home to pick up a check for work performed for some construction company. His wife did not see him any more until about 8 p. m. that same day. Her husband had knocked on the door and had become impatient when she did not speedily open it, as she was trying to light a candle first. The husband had a sack full of beer and a bottle of gin, and had another man with him, who told her his name was Jimmie Walker. Walker was a young man, 26 years of age. Bohanon was 34 years old and Mrs. Bohanon was 38 years of age.

Mrs. Bohanon testified that she saw that her husband had been drinking and asked him why he did not have his party down town, that she was tired and ill, had worked all day and needed rest. She said that her husband used a profane word and said he did not want to have his party down town, and sat down in the living room, opened a bottle of beer and told her to drink it, and threatened her if she did not. That she was afraid that he was going to strike her, and she took the bottle out of his hand and pretended to drink from it. She said that her three children were in an adjoining room, asleep. That the youngest, then 18 months old, was still on the breast as she did not have food half the time.

Witness further testified that after sitting in the living room a while, her husband motioned for her to come into the kitchen, and he told her that she must have sexual relations with Walker. Said she: 'I pleaded with him, but he said I was going to have to go through with it or he would cut my G_____ D_____ head off, and the G_____ D_____ kids' heads off and pile them up in the floor together.'

Witness further testified:

'A. He [her husband] forced me back in the bedroom and started pulling my clothes off. He said, 'I told you to get those God damn clothes off, and I mean get them off.'

'Q. How were you dressed at the time, Mrs. Bohanon? A. I had on a sweater and blue jeans.

'Q. You say he jerked your clothes off? A. Yes, sir.

'Q. Then what did he do? A. He threw me on the bed.

'Q. And what happened then? A. Well, I looked up and saw Walker standing there in the door and he told Walker to go ahead and have sexual relationships with me.

'Q. Now, the bed you are speaking of now, which room was it in? A. Well, it was in the back bedroom.

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'Q. Now, what happened after the defendant Bohanon invited the defendant Walker to have sex relations with you? A. Walker got on the bed with me, crawled on me, and I begged him not to go through with it. I told him I was being forced but he didn't pay any attention. He went ahead anyway.

'Q. Did he say anything to you when you asked him not to go through with it? A. No, sir; he didn't.

'Q. Where was your husband at that time? A. I think he was standing right there in the room. I was so confused and scared I couldn't say actually where he was.

'Q. Did Walker have sex relations with you? A. He did.

'Q. Did he succeed in making a penetration? A. Yes, sir.

'Q. What happened after he had finished? A. He got up and after he got up my husband urged him to get back on me and he said he didn't want to, and my husband told him to go ahead and Walker, he kind of got mad and my husband got mad and I thought they were going to fight. Walker said something about going outside and my husband said, 'I will until you get back', and my husband got on me and after he got through he got up and went outside and hunted for Walker and shouted for Walker several times. He said he was going to bring Walker back in there, but Walker had already left. He had missed him.'

Witness further testified that she had seen her husband drunk many times, and that he was pretty drunk on this occasion, but acted more like he was doped, or crazy.

Defendant's co-defendant, Walker, testified for the State. He had been represented by the public defender up until four days prior to trial, but said that he did not tell the story over at the justice of the peace court [preliminary hearing], 'But I want to tell the truth now.' He said that he had met defendant Bohanon off and on for some two years, ran into him on the date of the alleged crime on Reno Street, in Oklahoma City in front of the Wagon Wheel Bar, about 5:30 or 6 P.M., and the two of them went into the bar and had a few beers, after which witness testified that he, Walker, suggested that the two of them go to the hotel to 'get some women', at which time Bohanon told Walker that he, Walker, could stay with Bohanon's wife for $5. Walker further testified that they went to the hotel where a porter told them they did not have any women, so Bohanon and Walker went to the front of the Terminal Hotel where Walker gave Bohanon $5, after which they purchased some gin and beer, and walked to Bohanon's home. Witness further testified:

'Q. What happened after you got to the Bohanon home? A. Well, he knocked on the door and his wife came to the door and let us in, and said, 'Who is with you?' He said 'a friend'. We went on in and he tried to get her to take a drink and she said, 'Why didn't you have your party in town?' We sat down and talked and he tried to make her drink some gin and beer, and she told him it made her sick at her stomach to drink it. She acted like she drank some, but I knew she didn't drink any. We sat there and talked for a while and----

'Q. Where were you sitting? A. Sitting on the divan.

'Q. In what room? A. In the living room.

'Q. Did you know whether or not there were any other people in the house at that time? A. No, sir.

'Q. All right, go ahead. What happened then? A. Robert told me, 'Go ahead and have intercourse with her'. He said, 'I want to watch you.' I said, 'Man, I am not going to do it.' He said, 'We will go in the bedroom there', so him and her got up and went in the bedroom and I followed them, and he threatened her, he told her to pull her clothes off and she wouldn't do it. He threatened to kill...