Cambron v. State
| Decision Date | 19 May 1948 |
| Docket Number | A-11024. |
| Citation | 193 P.2d 888,86 Okla.Crim. 437 |
| Parties | CAMBRON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appeal from District Court, Cleveland County; Justin Hinshaw, Judge.
The defendant, Harry Cambron, was charged, tried, and convicted for the crime of rape in the first degree and sentenced to a term of fifteen years' imprisonment in the State Penitentiary and appeals. This case has been advanced on the docket for the reason that the defendant, Harry Cambron, is unable to make bond and is now confined in the State Penitentiary.
Reversed and remanded with directions.
Syllabus by the Court.
1. In a prosecution for rape one may be convicted upon the uncorroborated testimony of the prosecutrix.
2. This rule is limited with an exception which is as well established as the rule itself. It is that the testimony of the prosecutrix in a rape case must be clear and convincing and where it bears upon its face inherent evidence of improbability, is contradictory, inconsistent or unreasonable, it will be held as insufficient, and under these circumstances must be corroborated to the extent of making it sufficient. This rule has more often been applied in cases where the prosecutrix is a child of tender years and more susceptible of coming under the influence of others, or through fear, threats, coercion or duress.
3. From the record it is held:
(a) It was necessary for the testimony of the prosecutrix to be corroborated.
(b) There was not sufficient corroboration of the prosecutrix by the evidence offered in this case.
(c) The evidence offered by the state is insufficient to sustain the judgment and sentence under the law.
4. In prosecution for statutory rape, where there is evidence of more than one act of sexual intercourse between defendant and prosecutrix upon which a conviction could be based, the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else have treated the act of which the state first introduced evidence to tend in any degree to prove the offense as an election and should have given a specific instruction limiting the jury to a consideration of such particular act as a basis for a conviction.
5. In this state a person may be tried for and convicted of only one offense at a time. Rape is not a continuous offense, and whilst in a prosecution for statutory rape proof of other acts of intercourse, occurring both prior to and subsequent to the one relied upon for a conviction, may be proved for the purpose of showing the intimate relations between the parties, etc., the conviction must be based solely upon one of such acts and not all of them, and it is error prejudicial to the defendant, where no election of acts is required, to instruct the jury in effect that a conviction should result from proof beyond reasonable doubt of any of such acts.
6. In a trial upon a charge of rape, proof of other acts of intercourse may be shown for the purpose of corroboration and as showing the relation between the parties; but a conviction must be based on one act. Where, as in this case, the defendant is not tried with reference to one particular act, but several distinct acts, reversible error is committed when the prosecution is not required to elect one specific act and the trial court fails to treat the first act proven as an election.
7. In prosecution for statutory rape, the credibility of the prosecutrix may be impeached by proof that she made statements relative to the issues contrary to what she has testified to on the trial.
8. Where a witness has made statements in writing different from those made on the trial, and the statements are shown the witness, who admits having made them, and witness is given an opportunity to explain them, they may be read in evidence for the purpose of impeachment.
9. Evidence considered and held, insufficient to sustain verdict finding defendant guilty of rape in the first degree.
Homer Cowan, of Norman, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
This is an appeal by Harry Cambron, defendant below, from a conviction for first degree rape allegedly committed upon the person of Lavina June Belden of the age of twelve years. This prosecution was instituted by criminal complaint filed on May 15, 1947, in the county court before Sylvester Grim, County Judge in and for Cleveland County, Oklahoma, and by information filed on May 27, 1947, in the district court before Honorable Justin Hinshaw, District Judge of Cleveland County, Oklahoma. The complaint and information both allege that on or about the first day of May, 1947, within the jurisdiction of the District Court of Cleveland County the defendant Harry Cambron did 'accomplish the act of sexual intercourse with, carnally know and rape one Lavina June Belden, * * * of the age of twelve (12) years, and not the wife of him,' the said defendant. At the conclusion of the trial the jury found the defendant guilty and fixed his punishment at imprisonment in the State Penitentiary for the minimum penalty of fifteen years and judgment and sentence was entered by the District Court of Cleveland County in accord therewith.
This prosecution originated by the police of the City of Norman, Oklahoma, finding the prosecuting witness Lavina June Belden, a girl of twelve years of age hanging around the interurban station at about four o'clock in the morning. The took her into custody and carried her home and turned her over to her parents. She testified that upon reaching her home that she did not tell her father and mother anythink in relation to the charge that was later lodged against Harry Cambron. The next day the police called for her and together with her parents she was taken to the police station where she was examined in relation to her conduct. Specific inquiry was made out of the presence and hearing of Mr. and Mrs. Belden, by the police officers as to whether or not she ever had relations with Harry Cambron. The record discloses that at first she stated that she had not had relations with Harry Cambron but the police officers talked rough to her, and she became fightened. One of the officers said he didn't believe her the other said he did. Finally, she told them that she did have intercourse with the defendant. Upon the matters and things as disclosed in this inquiry this prosecution was instituted.
The defendant makes numerous assignments of error but combines them under four propositions which he urges in his brief.
The first proposition is that the evidence is insufficient to sustain the verdict, judgment and sentence. This contention is grounded primarily upon the proposition that the prosecuting witness was not corroborated and that her testimony was not clear and convincing and bore upon its face inherent evidence of improbability, that it was contradictory and inconsistent. In this connection at the outset it is well to note that when the matter came on for oral argument and it was called to the Attorney General's attention that he had not filed a brief in this case he stated in open court that it was not his intention to file a brief, that while he was not ready to confess error he was willing to let the matter stand upon the record and the brief of the attorney for the defendant. The contentions of the defendant and the attitude of the Attorney General is predicated upon the state of the record made in the trial below, as follows, towit: The prosecuting witness Lavina June Belden testified that she was twelve years of age at the time the alleged rape is supposed to have occurred on May 1, 1947. She first stated that she could not remember when she rode with Mr. Cambron in his automobile. Then she positively said she did not ride in his car on the first day of May. Then she stated that on that day she saw him about three o'clock in the evening but that he did not stop and that she did not see him later on on said day but she did see him two days after. She finally said that about four weeks before the preliminary hearing she did get in a cab with Harry Cambron and that they rode out near the Boyd Dairy about 3:00 o'clock in the afternoon, and that when they got there he stopped his automobile but did not do anything and then he went on, that at this time he did not say or do anything, that he just touched her on the arm, that he did not say anything, that he stopped a second time and asked her if she wanted to go back, to which she said 'Yes.' That is all she said he did except take her back home, and that was the only time she was ever out near the Boyd Dairy with Harry Cambron. Then she testified that during this particular incident he did have sexual intercourse with her and almost immediately thereafter she said that it was three days after they were at Boyd's Dairy that intercourse occurred on a 'red, dirt road on the way to Noble by a big haystack.' There he held her hand and told her he would hurt her if she did not submit. Then she says he did not have intercourse with her at that time but at another time he did have intercourse with her by the Sooner Show. At another time six or seven miles east of Norman Harry Cambron had intercourse with her, that he brought her back to town and let her out by Woolsworth and that is the only time that he treated her in that manner. Then immediately thereafter in her testimony she said that was the second time and then stated that he had intercourse with her four or five times.
On cross examination she stated that she 'don't know why she told the police that what she did about Harry Cambron.' She supposed it was because she was scared. That after they left the police station that she went to the...
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