Cecil v. Territory Oklahoma

• Decision Date: 07 September 1905
• Court: Oklahoma Supreme Court
• Parties: WILLIAM A. CECIL v. THE TERRITORY OF OKLAHOMA.

1905 OK 98

82 P. 654

16 Okla. 197

WILLIAM A. CECIL v. THE TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: September 7, 1905

Syllabus

¶0 1. INDICTMENT--Date Day Not Necessary When. It is not required that the exact time of the commission of an offense be set forth in the indictment, except where time is a material ingredient of the offense; and an indictment charging the crime of rape to have been committed on the --day of January 1903, is not subject to demurrer because the day of the month is left blank.

2. TRIAL--Proof of Subsequent Offenses. In a prosecution for rape acts of sexual intercourse occurring subsequent to the one charged in the indictment, and relied on by the Territory for conviction, should not be considered by the jury either in corroboration of the main offense charged, or for any other purpose, as proof of subsequent offenses have no tendency to prove that previous thereto the defendant had probably committed the crime charged against him.

3. TRIAL--Evidence of Negotiations for a Settlement by Defendant and by his Father. In a case of rape, evidence of negotiations for a settlement of the crime, by way of offers by the defendant to pay money to the prosecutrix, or her parents, are always relevant against the defendant; and where such negotiations are carried on by the father of the defendant, or by others, in order to make such evidence admissable against the defendant, the Territory must show that the father of the defendant, or the other parties acting, were acting for the defendant and by his direction and authority.

Error from the District Court of Woods County; before J. L. Pancoast, Trial Judge.

L. T. Wilson and W. T. Drake, for plaintiff in error.

P. C. Simons, Attorney General, and Don C. Smith, Ass't for defendant in error.

GILLETTE, J.

¶1 The defendant in this case, Wm. A. Cecil, was convicted of the crime of rape in the district court of Woods county, and sentenced to the penitentiary. His motion for a new trial and in arrest of judgment were each overruled, and he appeals to this court for a reversal of the judgment.

¶2 The first assignment of error is in the overruling of the defendant's demurrer to the indictment. The indictment charges the offense to have been committed on the day of January, 1903, and the demurrer is based on the ground that the indictment is fatally defective in not alleging the exact day in January when the offense was committed. We think the contention is without merit. Sec. 5361 of our code provides:

"The precise time at which the offense was committed need not be stated in the indictment, but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient of the offense."

¶3 By sec. 5365 it is also provided that the indictment is sufficient if it can be understood therefrom, among other things "that the offense was committed at some time prior to the finding of the indictment." At the common law the exact date of the offense had to be set forth, and a failure to do so was fatal to the indictment. This rule, which was often abortive of the ends of justice, has generally been modified by the statutes of the several states, and does not now prevail except where the time is a material ingredient of the offense charged. Under the statutes above cited, it is clearly the law that in laying the time in the indictment, except in cases where time is a material ingredient of the crime charged, it is sufficient if it shall clearly appear that the offense charged was committed before the finding of the indictment, and within the statute of limitations. The same question was before the supreme court of Kansas at an early date, under a statute essentially the same as ours, and is reported in the 3rd Kan., 250. The indictment in that case charged a robbery from the person, to have been committed on the day of , 1864, and in passing on the question it is said:

"The rule is well settled that it is not requisite that the precise time of the commission of the offense shall be stated in the indictment. But it is sufficient if shown to have been within the statute of limitations, except when the time is indispensable ingredient of the offense."

¶4 The same question, in some form, has been before many of the states of the Union, and abundant authority might be cited in support of the conclusion here reached, but we regard the question too well settled to require further consideration. We might add that the case of the Territory v. Armajo, from New Mexico, which is relied on by plaintiff in error in his brief, 37 P. 1117, was decided where the rule of the common law had not been changed by the statute, as in this Territory, and hence it cannot be regarded as an authority in point in this case. Time, in this case, is not a material ingredient of the offense, and the demurrer to the indictment was properly overruled.

¶5 Upon the trial of the case and over the objection of the defendant, evidence of acts of sexual intercourse between the defendant and prosecutrix occurring subsequent to the one charged in the indictment and relied on by the Territory for conviction, was admitted, and when the evidence in the case had been introduced and the case rested, the court, over the objection of the defendant, gave the following instructions to the jury:

"Instruction No. 10. You are further instructed that evidence has been allowed to go before you by which it was intended to prove that the defendant had sexual intercourse with Dora Johnson on other occasions than the one charged in the indictment. The court instructs that such evidence can only be used by you as corroborating other evidence which was introduced for the purpose of showing that the crime charged in the indictment was actually committed."

¶6 The giving of this instruction in its unlimited form was error. The general rule is well settled that the state can not prove the commission of other distinct offenses for the purpose of rendering it more probable in the minds of the jury that the defendant committed the offense of which he is charged. See the recent case of the Territory of Oklahoma v. Harmon, 79 P. 765. While this is the general rule, there are a number of well defined exceptions to it, and one of these arises in a class of cases commonly referred to in the books as sexual crimes, which...