Burtt v. State

• Decision Date: 11 March 1938
• Docket Number: A-9326.
• Citation: 77 P.2d 580,64 Okla.Crim. 68
• Parties: BURTT v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

77 P.2d 580

64 Okla.Crim. 68

BURTT v. STATE.

No. A-9326.

Court of Criminal Appeals of Oklahoma

March 11, 1938

Syllabus by the Court.

1. In a prosecution for rape, committed by force, overcoming resistance, as defined by Oklahoma Statutes 1931, § 2515 subd. 4, Okl.St.Ann. tit. 21,§ 1111, subd. 4, p. 464, and classified as rape in the first degree, and where the court submits the issue and the jury finds the defendant guilty of rape in the second degree, as defined by subdivision 2, 21 Okl.St.Ann. § 1111, subd. 2, where under the evidence he should have been convicted of rape in the first degree, the defendant cannot be heard to complain, because the error was clearly to his advantage, and the law never considers a question of error except in behalf of those who are injured.

2. In a prosecution for rape in the first degree, a defendant convicted of rape in the second degree cannot complain that the court charged the law of rape in the second degree, when the evidence did not justify such a charge, where the record shows no objection made or exception taken to this part of the charge in the court below.

3. In a prosecution for rape by force, the old rule of "resistance to the uttermost" is obsolete, and is repudiated by the more modern authorities, and by the former decisions of this court. The law does not require that a woman shall do more than her age, strength, the surrounding facts, and attending circumstances make it reasonable for her to do in order to manifest her opposition.

4. To support a charge of rape, female's resistance need only to be such as to make nonconsent and active resistance reasonably manifest, having regard for her age, strength, and surrounding circumstances.

5. Section 3108, Oklahoma Statutes 1931, Okl.St.Ann. tit. 22, § 927, p. 204, which permits the court to assess the punishment when the jury fails to do so, is not unconstitutional as depriving a defendant of the right of trial by jury, as provided in article 2, section 19, of the Constitution of this State.

Appeal from District Court, Adair County; O. H. P. Brewer, Judge.

Warren Burtt was convicted of second degree rape, and he appeals.

Affirmed.

Jean R Reed, of Wagoner, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and E. G. Carroll, Co. Atty., of Stilwell, for the State.

BAREFOOT Judge.

The defendant was charged by information in Adair county with the crime of rape by force, was tried and convicted, and sentenced to serve a term of eight years in the penitentiary, and has appealed.

Defendant, in his brief, sets forth ten assignments of error, but groups them under one heading, contending that: "Under the laws of this state, when the state in a prosecution of rape relies on the theory of rape by force and fear as in this case, it is essential to conviction that the state show by competent evidence that the utmost force was used and threats made of immediate bodily harm, coupled with apparent power of execution to the prosecutrix. In the case before your honors it was never shown by the state that the prosecutrix was ravished by force and fear or that the defendant made any threats of whatsoever nature toward the prosecutrix."

It becomes necessary to review the evidence offered in this case. It reveals that the prosecutrix, Melodees Stilwell, and a young girl friend, Beatrice Barker, both of whom resided in Stilwell, Adair county, in company with a crowd of young people, went to a picnic at the town of Caney on the night of July 4, 1936, on a truck belonging to Monk Paden. They remained at the picnic grounds until about 10:30, and went from there to another picnic at Barron Forks. While at Barron Forks they saw Mr. and Mrs. Ralph Hill, Mrs. Hill being a sister of Beatrice Barker. Both of these witnesses testified to seeing both of the girls at the picnic about 10:30, and that they were at that time in the company of the defendant and Bill Stevens. He testified that he told them who the girls were and that they were just "kids," and that if they would be good to them he would let them take the girls home as they had requested, otherwise he would take them home himself; that defendant told him they would. The defendant and Bill Stevens were driving a truck which belonged to, and was being operated by, the defendant. Just before leaving the girls, Mr. and Mrs. Hill saw the defendant and Bill Stevens and Melodees Stilwell and Beatrice Barker leave in the truck headed toward the town of Westville. They saw them returning a few minutes going in the opposite direction. Mr. and Mrs. Hill did not see the girls again until the next morning, when they saw them in the town of Stilwell, their clothes were torn, their eyes were black, and their faces and necks were bruised, and they were beaten up.

Beatrice Barker, a witness for the state, testified to going to the picnic on the truck with prosecutrix, Melodees Stilwell, while there they saw the defendant, whom she knew when she saw him, and Bill Stevens, whom she also knew. That the four of them went in the defendant's truck to the Barron Fork picnic. That while there they met Mr. and Mrs. Hill, Mrs. Hill being the sister of the witness. That they left the picnic grounds at Barron Fork in defendant's truck and him driving. That they went around through Arkansas but did not go through the town of Westville, but turned at the road at the port of entry and came through Evansville, Ark., and back to Stilwell. Defendant was driving, and on the way back he stopped on the side of the road. Melodees asked him why he stopped and he said: "I will show you," and he pulled her out of the truck. That Bill Stevens told her to get out and she did not. That she was sitting on Bill Stevens' lap and he pushed her out of the door. Witness said that they got to scuffling and were screaming and hollering. That there was a house close by and Melodees said something about it. That they told the girls to get back in the truck and they would take them home. They all got in the truck and went down the road a little further, when defendant stopped the truck again. After some argument about getting out of the truck, defendant got out and pulled Melodees Stilwell out of the truck, then Bill Stevens started pulling witness out of the truck. After fighting and hollering and trying to keep them away from her, she testified that prosecutrix was scuffling and hollering and was trying to get away from defendant and trying to get back in the truck. That they finally got loose and went up the road, and the boys caught up with them and jumped out and caught them and dragged them into the truck. Witness testified she fainted, and when she came to Bill Stevens had pulled her into the ditch on the right side of the road, and that Melodees was fighting, crying, and screaming. Then witness related that she was overcome and fainted. That after she was overcome Bill Stevens had dragged her into the ditch. That he accomplished an act of sexual intercourse with her. Finally she got up and they got back to the truck. That he held her and made her go to the truck, and that they went back to Stilwell in the truck. That as she got back to the truck prosecutrix and defendant were coming from the other side of the road and he was holding her and making her walk along, and she heard Melodees say: "Why don't you let me loose, you've done enough already." She said she told them: "Let us loose and we will walk on back," and they said, "No, you won't." Witness stated that they got in the truck and went to Stilwell and were let out down where the railroad crosses the road by the holiness church. Witness stated: "When we got out we went over to her house," and defendant asked prosecutrix if she was going to have him arrested and she said, "Yes," and he said, "I don't guess you will, you are going with me." Just as soon as they got in the house, they reported to the folks what had happened to them. She testified to examining their clothing and found that prosecutrix' clothing were torn, dirty, and had blood on them.

Melodees Stilwell, the prosecutrix, as a witness for the State testified that she was 17 years of age on the 22d day of November, 1935. She corroborated in detail the evidence of Beatrice Barker with reference to going to the picnic on July 4, 1936, and being in company with defendant and Bill Stevens. She said when defendant stopped the truck she asked him what was the big idea and he just laughed and told her to get out. He kept trying to get her to get out of the truck but she told him she was not going to get out. He said she was and pulled her out. That she fought and screamed. That she heard Beatrice Barker scream and heard her say: "Oh, I feel like I am going to faint." That defendant drug her off to the side of the road and threw her down. When he threw her down, she reached out and got a big rock and hit him on the forehead, and that defendant took the rock away from her and finally, after overcoming her, had sexual intercourse with her. She testified that all the time she was hollering, screaming, and fighting with her fists and the rock which she had. She had bruised places on her shoulder, and her lips were bleeding, and her dress was torn and bloody. After accomplishing the act of intercourse, "he turned me loose and then grabbed me and drug me to the truck and told me to get in." "I did not want to. He picked me up and put me in the truck." She testified that it was not daylight, but was about 4:30 a. m. when she arrived at her home. She went into the house and immediately told her mother what had happened and asked her to get Mr. Nicholson, the sheriff, who lived across the street north of them. Mr. Nicholson was not at home, but Mrs. Nicholson, his wife, came over. Dr....