Castleberry v. State
| Decision Date | 10 March 1914 |
| Parties | CASTLEBERRY v. STATE. [*] |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
It is not required that an indictment or information should set forth with precision some particular day as the time when the offense was committed, except where time is a material ingredient of the offense; and an indictment, charging the crime of statutory rape to have been committed "on the ______ day of May of A. D. 1911," is not subject to demurrer because the day of the month is left blank.
The exact words of the statute defining a crime need not be used in the indictment or information charging it, but any words clearly and intelligently setting forth the offense are sufficient.
The state has the right, on cross-examination, to show the nature of the relations existing between the witness and the defendant, so far as their relations are such as would create a bias that might reasonably be supposed to affect the credibility of the witness, and this rule cannot be changed by the fact that such evidence would probably prejudice the defendant in the minds of the jury.
The privilege of degrading a witness by proof of disreputable conduct, not connected with the facts on trial, is one so liable to abuse that it should be closely guarded, and allowed only on the exercise of judicial discretion of the trial court, and then only to affect the credibility of the witness.
In a prosecution for rape under the statute defining rape as an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, "where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character," alleged to have been committed "on the ______ day of May, 1911," the testimony of the prosecutrix tended to prove several acts constituting the crime charged; the first having occurred in March and the last in May, 1911. The defendant did not request the court to require the state to elect on which act it would rely, and no election was made. Held, that the defendant, being the author of the child's defilement, is precluded from taking advantage of his previous wrongdoing to avoid the application of the statute on the theory that at the time alleged in the indictment, or at any time after the first act of sexual intercourse with the defendant, the child was not chaste, and therefore the defendant could only be convicted for the first act, which the evidence tended to prove.
Additional Syllabus by Editorial Staff.
The phrase "previous chaste and virtuous character," as used in the statute defining rape (Rev. Laws 1910, § 2414) means actual personal virtue. The allegation in an indictment that prosecutrix was then and there a female of "previous chaste character" meant the same, and was an allegation that she had never had sexual intercourse with any man. In other words, that she yet retained her virginity.
In a prosecution for statutory rape, the privilege of a witness to refuse to give testimony which would tend to show her guilty of violation of Rev. Laws 1910, § 2463, prohibiting indecent exposure, was personal to the witness, and should not be taken advantage of by accused.
Evidence in a prosecution for statutory rape held to sustain a conviction.
Appeal from District Court, Tillman County; Frank Mathews, Judge.
Tom Castleberry, Jr., was convicted of statutory rape, and appeals. Affirmed.
J. E Red, of Frederick, and W. E. Hudson, of Tulsa, for plaintiff in error.
Chas. West, Atty. Gen., and C.J. Davenport, Asst. Atty. Gen., for the State.
Plaintiff in error was tried and convicted in the district court of Tillman county upon an indictment returned by the grand jury on the 24th day of January, 1912. The indictment charged "that on the ______ day of May of A. D. 1911, at and within said county, and within the jurisdiction of said court, one Tom Castleberry, Jr., then and there being, did then and there unlawfully, willfully, and feloneously commit the crime of rape upon the person and body of one Willie Mathews, by then and there having carnal sexual intercourse with her, the said Willie Mathews, who was then and there a female of previous chaste character, and under the age of 18 years, and the said Willie Mathews then and there not being the wife of the said defendant, Tom Castleberry, Jr., contrary to," etc. On the 14th day of June, 1912, in accordance with the verdict of the jury, the court sentenced the defendant to imprisonment in the penitentiary for the term of five years. To reverse the judgment an appeal was taken by filing in this court, on November 29, 1912, a petition in error with case-made.
The first assignment of error is in the overruling of the demurrer to the indictment. It is contended that the indictment is fatally defective in not alleging the exact day of the month of May that the offense was committed.
Our Code provides (section 5742, Rev. Laws): "The precise time at which the offense was committed need not be stated in the indictment or information; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense."
By section 5746, Rev. Laws, it is also provided:
At the common law an allegation of the exact date of the offense was indispensable, and authorities may be found holding that it is necessary to allege a particular date on which the offense was committed. However, under the foregoing provisions of our Code, it is unnecessary to allege the exact date of the offense, except in cases where time is a material ingredient of the offense charged. It is sufficient if it shall clearly appear that the offense charged was committed at some time prior to the finding of the indictment, and within the statute of limitations. However, as a matter of good pleading, even where time is not a material ingredient, it is better that an indictment or information should allege a particular day as the time when the offense was committed. As to time, all that is necessary to be proved in any case like this is that the offense charged was committed while the female was under the age of 18 years. Otherwise time is not a material ingredient of the offense. Therefore the contention is not well taken.
It is also claimed that the indictment is defective in that it is not alleged, in the words of the statute, that Willie Mathews was a female of "previous chaste and virtuous character." The indictment alleges that she was a female of "previous chaste character." We think that the language used is sufficient. It is well settled that the exact words of a statute defining a crime need not be used in an indictment or information charging it, but any words clearly and intelligibly setting forth the offense are sufficient.
Our Code provides (section 5747, Rev. Laws): "No indictment or information is insufficient, or can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits."
The phrase "previous chaste and virtuous character," as used in the statute defining rape (section 2414, Rev. Laws), means actual personal virtue. The allegation in the information that she was then and there a female of "previous chaste character" means the same, and is an allegation that the prosecutrix had never had sexual intercourse with any man. In other words that she yet retained her virginity. Our conclusion is that the demurrer was properly overruled.
The next assignment is that the court erred in admitting the testimony of Ruth Brady, upon her cross-examination, and in permitting the state to introduce in evidence a post-card photograph of Ruth Brady and the defendant upon the cross-examination of said witness. Ruth Brady, as a witness for the defendant, had testified that in February, 1912, she went to her home and had a conversation with the prosecutrix and asked her who she thought her baby boy favored, and the prosecutrix said "that she didn't know, but that she had a pretty good idea"; that she then asked her who was the father of her child, and that she said "she didn't know who the father of her child was." On cross-examination she stated that the defendant was her sweetheart. The state produced a photograph taken by Jack Kendrick, another witness for the defendant, and extended it to the witness; her further examination taken from the transcript, is as follows: She further stated that the picture was taken by ...
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