Bouie v. State
| Decision Date | 07 May 1913 |
| Parties | BOUIE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
In a prosecution for assault with intent to commit rape upon a female child under the age of consent, the evidence is held to support the verdict and that no reversible error was committed on the trial.
Since by statute, a female child under the age of consent is legally incapable of consenting to carnal knowledge of her person, she is incapable of consenting to an assault upon her with intent to commit rape, and every act done in furtherance of a purpose and intent to know her carnally is unlawful and felonious; and, if such acts would constitute an assault if done without her consent, then no act of hers can waive the assault.
Where it appears, in a prosecution for assault to commit rape upon a child of tender years, that immediately after the alleged assault she was crying and met an older sister and then and there made complaint, not only the fact that such complaint was made, but the complaint as made, is admissible as part of the res gestæ.
The prosecuting attorney has the right and privilege in his argument to the jury to refer to the evidence and his deduction therefrom and urge upon the jury the truth or falsity of any testimony given in the case.
Misstatements of the prosecuting attorney in his address to the jury cannot be reviewed on appeal, where the only evidence thereof contained in the record are recitals in the motion for new trial.
Additional Syllabus by Editorial Staff.
Since Comp. Laws 1909, § 6766, leaves an application for a change of venue to the sound discretion of the trial court, a refusal to grant such change will not be disturbed on appeal in the absence of an abuse of discretion to defendant's prejudice.
Appeal from District Court, Garvin County; R. McMillian, Judge.
N.C. Bouie was convicted of assault with intent to commit rape, and he appeals. Affirmed.
Thompson & Patterson and Carr & Field, all of Pauls Valley, for plaintiff in error.
Chas West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and J S. Estes, of Oklahoma City, for the State.
The plaintiff in error was tried upon an information for assault with intent to commit rape. He was found guilty and in accordance with the verdict of the jury was sentenced to imprisonment in the penitentiary for a term of four years and six months. The judgment and sentence was entered on the 3d day of June, 1911.
The noticeable assignments of error are confined to three points.
The first concerns the refusal of the court to grant a change of venue. Our Code leaves such an application to the sound discretion of the trial court (section 6766), and unless it appears that such discretion was abused to the prejudice of the defendant this court cannot interfere. Edwards v State, 131 P. 956, and cases therein collated. The record shows some 17 affidavits in support of the application and about 45 counter affidavits. Upon this showing the court overruled the application. The record shows that the defendant was given an opportunity to make a further showing in the matter after the court's ruling by examining a number of witnesses on behalf of the defendant and then again overruled the application. There is nothing to indicate that the court abused its discretion in the matter or acted arbitrarily.
The second ground upon which error is assigned is that the evidence is not sufficient to support the conviction and that the court erred in refusing to grant the motion to direct a verdict of not guilty.
The facts of the case, as we gather from the evidence, are as follows: The defendant lives on a farm within a mile of Stratford. On Saturday, November 12, 1910, the defendant took several children from Stratford in his wagon to a pecan grove on his farm to pick pecans, under an arrangement whereby he was to give the children one-half of the pecans they picked. A short time after they arrived at the place, the prosecutrix, Iola McCurdy, nine years old, went with the defendant to the house 200 or 300 yards distant for water. She returned with some water in a cottolene bucket and was crying. Her testimony as to what transpired is in the words as follows: That they then went to the pump, and he told her to return with the water the way she came. She was then asked, "Who was the first one who spoke to you?" and answered, "My sister Ruby." That she said she wanted to go home, and the defendant came, and they all got into the wagon, and he took them home. And she told her mamma what the defendant had done to her.
Ruby McCurdy testified that she was 12 years old; that when her sister Iola had been gone about 30 minutes she became uneasy and went to the fence and called her; that she answered and returned crying, and "she told me what Mr. Bouie had done to her."
The testimony of several of the children tends to show that while going home after the alleged assault the prosecutrix cried continuously.
Frank Farris testified, as undersheriff, he went on the second day after with the two McCurdy girls and three or four other persons to the place; that it was in the bed of a creek with banks six or seven feet high, and there was an impression in the sand.
J. R. Gillman testified that he was with the party and saw the impression in the sand in the bed of the creek; "that there was footprints, one very small and a large one, along there."
W. U. Goodwin testified he was with the party. His testimony is substantially the same as that of the others.
Mrs McCurdy testified that the girls...
To continue reading
Request your trial