Bryant v. State, A--15239

• Decision Date: 28 October 1970
• Docket Number: No. A--15239,A--15239
• Parties: Clarence Herbert BRYANT, Jr., 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 907

478 P.2d 907

Clarence Herbert BRYANT, Jr., Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--15239.

Court of Criminal Appeals of Oklahoma.

Oct. 28, 1970.

Rehearing Denied Jan. 13, 1971.

Syllabus by the Court

1. A conviction for rape may be had on the uncorroborated testimony of the prosecutrix, or on slight corroboration, where the testimony of the prosecutrix is not inherently improbable or unworthy of credence.

2. It is the exclusive province of the jury to weigh the evidence and determine the facts, and where the verdict is based on probable testimony, the reviewing court will not interfere with the verdict, though there is a sharp conflict in the evidence.

3. When evidence is taken outside the hearing of the jury on a Motion to Suppress incriminatory statements made by an accused while in custody and there is sufficient evidence to support the ruling of the trial court that the defendant had been thoroughly advised of his constitutional rights and understood the same prior to making the incriminatory statements, the court's ruling will not be disturbed on appeal.

4. A trial judge has the right, in the exercise of his discretion, to ask of any witness such questions as will tend to elicit the truth, and so long as the judge does not, by his questions or conduct, indicate his views as to the matters at issue, a defendant will not be heard to complain of any question asked by him which is reasonably calculated to elicit the truth.

5. Where the evidence supports the verdict of the jury, the record is free of any error which would justify modification or reversal, the punishment imposed was well within the range provided by law, the judgment and sentence will be affirmed.

An appeal from the District Court of Oklahoma County; Jack R. Parr, Judge.

Clarence Herbert Bryant, Jr. was convicted of the crime of Rape in the First Degree, was sentenced to serve fifteen years imprisonment in the state penitentiary, and appeals. Affirmed.

Valdhe F. Pitman, Oklahoma City, for plaintiff in error.

G. T. Blankenship, Atty. Gen., William M. Bonnell, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge:

Clarence Herbert Bryant, Jr., hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Oklahoma County for the crime of Rape in the First Degree, his punishment was fixed at fifteen years imprisonment in the state penitentiary; and a timely appeal has been perfected to this Court.

Briefly stated, the evidence adduced at the trial revealed that on or about January 27, 1968, the defendant had sexual intercourse with his daughter, age 13, at their residence in Oklahoma City, Oklahoma. The daughter testified that the defendant took her to his room, she disrobed, and an act of sexual intercourse was performed. She stated that he had performed similar acts prior to this occasion. She also admitted that she had submitted herself to acts of intercourse with two other persons.

The mother testified that the girl had run away from home in May of 1968, leaving a note stating that the defendant had been bothering her. The mother was later informed by the child that the defendant had performed acts of sexual intercourse with her.

Dr. Wolohon examined the victim on May 6, 1968, and ascertained that she had had repeated intercourse. He conceded that he could not definitely state what ruptured her hymen.

Officer Armer testified that he questioned the defendant the day following his arrest, in the jail; that upon advising him of certain rights, the defendant made an oral statement to the effect that he had sexual intercourse with the daughter on the day in question.

The defendant testified that he had broken his neck and was placed in a body cast prior to January, 1968. This cast was not removed until after the alleged date. He described himself as an alcoholic and had little memory of what transpired during the months of December, 1967 through February, 1968. He had no memory of any sexual desires toward the girl and did not believe that he had ever had sexual relations with the prosecutrix.

Gladys Brown, the defendant's sister, testified as to the defendant's problems with alcohol and his lapses of memory during such periods.

The defendant's first contention of error is that the trial judge erred in not sustaining his Demurrer to the evidence in that 'the State did not present a prima facie case being the uncorroborated testimony of the prosecutrix which was inherently improbable and unworthy of belief * * *.'

A careful review of the record does reveal some inconsistencies in the testimony of the prosecutrix. These inconsistencies apply, however, to related events and not to the act of sexual intercourse. This Court has consistently held that a conviction for rape may be had on the uncorroborated testimony of the prosecutrix, or on slight corroboration, where the testimony of the prosecutrix is not inherently improbable or unworthy of credence. Haga v. State, Okl.Cr., 422 P.2d 221; Gaines v. State, Okl.Cr., 267 P.2d 612, and the many cases cited therein.

However, this rule has been limited to the effect that we will carefully examine the record in cases of this character, to see that the evidence of the prosecutrix is clear and convincing, and is not inconsistent, incredible, or contradictory. It is the exclusive province of the jury to weigh the evidence and determine the facts, and where the verdict is based on probable testimony, the reviewing court will not interfere with the verdict, though there is a sharp conflict in the evidence. Therefore, completely disregarding the purported confession of the defendant which does corroborate the prosecutrix' testimony, we will not interfere with the verdict of the jury.

It is next contended under defendant's second assignment of error, that the trial court's order holding the jury over for an additional six days was not in compliance with 38 O.S. § 21, the pertinent part of which is as follows:

'* * * No petit jurors shall be allowed to serve more than two weeks at one term, unless at the end of such period, he is upon a panel engaged in the consideration of a case, in which event he may be excused when such case is terminated; provided, that if the judge is of the opinion that the jury business of a term of court may be concluded within six (6) days, he may require a petit jury, or a petit juror, to remain until the termination of said jury service by entering an order to that effect upon the court's journal, and this provision shall apply to the District, Superior, Common Pleas and County Courts.'

The statute was first construed in 1911 in the case of Stuard v. State, 6 Okl.Cr. 94, 116 P. 204, and again some fifty-seven years later in Bickerstaff v. State,...