Carter v. State, A-12397

• Decision Date: 20 March 1957
• Docket Number: No. A-12397,A-12397
• Parties: Fay Albert CARTER, 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 737

309 P.2d 737

Fay Albert CARTER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12397.

Criminal Court of Appeals of Oklahoma.

March 20, 1957.

Rehearing Denied April 17, 1957.

Syllabus by the Court.

1. Where a jury is waived and the findings of the trial court are supported by competent evidence reasonably tending to sustain his conclusions, the same are binding on the Criminal Court of Appeals.

2. An intent to commit a crime implies purpose only, while an attempt implies both the purpose and an actual effort to carry the purpose into execution.

3. Where the jury is waived in a case of attempted rape, the matter of intent is a question for the trial court.

Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

Plaintiff in error, Fay Albert Carter, was convicted of the crime of attempted rape, sentenced to serve a term of ten years in the State Penitentiary, and he appeals. Affirmed.

W. E. Creen, Raymond G. Feldman, William S. Hall, Tulsa, for plaintiff in error.

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

BRETT, Presiding Judge.

Plaintiff in error, Fay Albert Carter, defendant below, was charged by information in the District Court of Tulsa County, Oklahoma, with the crime of attempted rape on the 21st day of May, 1955, in Tulsa County, Oklahoma, on the person of his nine year old daughter, Juanita May Carter. A jury was waived and the matter tried to the court. Upon a finding of guilty, judgment and sentence were entered fixing the defendant's punishment at ten years in the state penitentiary. From said judgment and sentence this appeal has been perfected.

The defendant urges three propositions in his brief. First, he contends that the evidence in the case is wholly insufficient to sustain a conviction for the crime of attempted rape. This calls for a brief consideration of the evidence.

It appears that on the day in question, the defendant had been out with some friends and according to his own admissions, he had drunk some whiskey and beer. His daughter, Juanita May, and her friend, Freda Karagas, were spending the night together in the defendant's home. It further appears that the victim's mother worked at night. Juanita May and Freda were asleep on a cot when, about 12:00 o'clock p. m., they heard some one rattling the door. Shortly thereafter, the defendant made his entry and in passing the cot, Juanita May testified, he began messing around with Freda's slip strap and broke it. Juanita said that she got up out of bed and got a pin to repair the damage, and as she was trying to repair Freda's strap, the defendant jerked her away and took her in to his bed. She tried to strick him with the pin so he would leave her alone, but the defendant got on top of her while she cried, 'Get off of me, get off of me.' He tore a hole in her pants, held her down on the bed, and exclaimed, 'I don't care what your mama says, you're going to come in here and sleep with me.' To which she replied, 'I'm going to sleep with Freda.' During this time Juanita said that he had his private parts out and tried to make an insertion, but he was prevented from doing so, because she 'was trying to squeeze away from him.' She further testified that he got some white stuff on her. When these things occurred, she was nine years of age. When her mother came home in the morning, she related the incident to her.

Freda Karagas testified that she was twelve years of age and going on thirteen; that she spent the night with Juanita and about 12:00 o'clock Juanita's father came home; that he was drunk and sounded as if he was half alseep and half drunk; that he sat down on the cot beside her and in feeling around, he broke the strap to her slip; that Juanita got up and got a pin and the defendant pulled Juanita over into his bed; that he was lying on top of Juanita and that she could see him; that Juanita kept telling him to get off of her and he would not do it. When Juanita came back to the cot, 'she told me what had happened and I told her I saw something of it.'

The testimony of Dr. Van Pelt was to the effect that he examined Juanita Carter's genital organs and made an examination of a smear taken from her vagina; that he observed a very small laceration just below the entrance to the vagina and that there was some reddening of the external genitalia. He testified that in his opinion there was no penetration.

The defendant, testifying in his own behalf, denied the charge as made and in addition thereto, he attempted to discredit his nine year old daughter by testimony designed to establish the fact that, several years before, she had been misused by her maternal grandfather and an uncle. To this evidence, Juanita May gave positive and resolute denial, stating that no such thing ever occurred.

It will not be necessary to delineate any additional evidence. Apparently, the trial judge believed the testimony of the two little girls, which testimony was forthright, intelligent, and unequivocal. The jury being waived and the findings of the trial judge being supported by competent evidence reasonably tending to sustain his conclusions, the same are binding on the Criminal Court of Appeals. McCarthy v. State, 91 Okl.Cr. 294, 218 P.2d 397; Fitzgerald v. State, Okl.Cr., 256 P.2d 477; Mathis v. City of Tulsa, Okl.Cr., 262 P.2d 710; Beam v. State, Okl.Cr., 264 P.2d 1001.

The defendant's second contention is that assuming there is evidence to sustain a conviction for a crime, such crime would be a lesser included offense of attempted rape in the first degree. Rape is defined in 21 O.S.1951 § 1111 as follows:

'Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: 1st, where a female is under the age of sixteen years * * *.'

Rape in the first degree is defined in 21 O.S.1951 § 1114 as follows:

'Rape committed by a male over eighteen years of age upon a female under the age of fourteen years, * * * in all other cases rape is of the second degree.'

The penalty for rape in the first degree is not less than fifteen years. 21 O.S.1951 § 1115. Attempts to commit crimes and their punishment are defined in 21 O.S.1951 § 42 as follows:

'Every person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or was prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law * * * as follows: 1. If the offense so attempted be punishable by imprisonment in the penitentiary for four years or more, * * * the person guilty of such attempt is punishable by imprisonment in the penitentiary, * * *...