Cole v. State

• Decision Date: 11 December 1946
• Docket Number: A-10638.
• Citation: 175 P.2d 376,83 Okla.Crim. 254
• Parties: COLE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

175 P.2d 376

83 Okla.Crim. 254

COLE v. STATE.

No. A-10638.

Court of Criminal Appeals of Oklahoma

December 11, 1946

Appeal from District Court, Major County; Tom R. Blaine, Judge.

Kenneth I. Cole was convicted of sodomy, and he appeals.

Reversed and remanded with instructions.

Syllabus by the Court.

1. Where a participant in the crime against nature consents to the act, he is an accomplice, and the rules in regard to the corroboration of accomplices apply.

2. A person may be reason of his age or mental unsoundness be legally incapable of consenting to the act of sodomy.

3. On a trial for sodomy the testimony of the person on whom the offense was committed must be corroborated, if he consents and where there is a doubt from the evidence as to whether such person consented, the question as to whether he consented should be submitted to the jury by proper instruction.

4. Any sexual penetration, however slight, is sufficient to complete the crime against nature.

5. Where argument of special prosecutor is so grossly improper that injury cannot be cured by action of court in striking statement from consideration of the jury, a mistrial should be ordered.

6. Record examined; remarks of special prosecutor considered with reference to the record and held so unfair and prejudicial that it was error to overrule motion for mistrial because of such inflammatory argument.

E Blumhagen, of Watonga, and T. C. Knoop, of Canton, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.

JONES Presiding Judge.

The defendant Kenneth I. Cole was charged in the District Court of Major County by information with the crime of sodomy, was tried and convicted with the punishment left to the court. The district court thereupon sentenced the defendant to serve a term of three years' imprisonment in the state penitentiary, and he has appealed.

In the disposition of this case, it is only necessary that we consider two of the assignments of error.

It is insisted by counsel for defendant that the court erred in refusing to give the following instruction requested on behalf of defendant: 'You are instructed that should you find and believe from the evidence in this case that the prosecuting witness consented to the alleged acts of sodomy testified to by him that then and in that event the prosecuting witness would be an accomplice to such acts, and it would thereupon be necessary that his testimony of the commission of the said acts of sodomy testified to, be corroborated by other competent evidence; and if you find from all the facts and circumstances in this case that the prosecuting witness did so consent to such acts, and if you further find from all the evidence, facts and circumstances that his testimony regarding the commission of said acts of sodomy have not been corroborated by other competent evidence, then it would be your duty to return a verdict of not guilty.'

The defendant, a young minister of the Gospel, was charged with committing the crime of sodomy on the person of Roy Longhofer, a 14 year old boy, during the night of March 11, 1944, when the youth was spending the night at the residence of the unmarried defendant. The evidence showed that the defendant and the prosecuting witness had been intimately acquainted for two years or more. The mother of the prosecuting witness was a member of the congregation of defendant's church, and the prosecuting witness attended church services there with his family. Prior to the night in question, the said Roy Longhofer had slept with the defendant on another occasion. The testimony showed that on the evening in question the defendant and a girl friend were visiting in the home of the parents of the prosecuting witness. When the defendant started to leave the home of the Longhofers, he asked permission of the parents for Roy Longhofer to accompany him to his home to spend the night, which permission was granted.

The prosecuting witness testified that shortly after they had retired for the night the defendant committed an act of sodomy with him, and that he repeated the act about daylight the next morning. That the defendant penetrated him each time. Concerning the last act, the witness testified: 'He stayed on me until he had an emission; then we got up, I took a bath, listened to the radio, Kenneth shaved and got ready for church.'

As to whether any force or threats were used by the defendant, the witness testified: 'He started ramming me is a vicious manner, and he threatened me, he said I would be sorry if I ever told anybody, and he said, 'Be sure and keep quiet about what went on that evening.''

The witness testified that after the first act was committed that he went off to sleep and was awakened about sunrise the next morning by the defendant being on him, with his arms about his waist, and attempting to commit another act. Witness weighed about 140 pounds. On cross-examination Roy Longhofer testified that he stayed with the defendant all the next day, and he went with him to church. That he did not tell anybody about what had happened for over two months.

If the prosecuting witness was an accomplice, then his testimony would have had to have been corroborated before the jury could find the defendant guilty of the crime charged in the information. Since there was no corroboration of the testimony of the prosecuting witness as to the material facts of the alleged crime, the jury would have been forced to return a verdict of not guilty if they had been instructed that if they found that the prosecuting witness had consented to the act, he was an accomplice.

In 48 Am.Jur. 552, the general rule is stated as follows: 'Where a participant in the crime against nature consents to the act, he is regarded as an accomplice, and the rules in regard to the corroboration of accomplices apply.'

In L.R.A.1915E, 1224, it is stated: 'One who participates in the crime against nature is an accomplice, and the rules of accomplice testimony apply.'

The abominable crime against nature has been compared to the crime of rape. Borden v. State, 36 Okl.Cr. 69, 252 P. 446. In some states it is provided by statute that children under a certain age are legally incapable of consenting to the act of sodomy, and so conviction may be had upon their uncorroborated testimony. People v. Camp, 26 Cal.App. 385, 147 P. 95; Kelly v. People, 192 Ill. 119, 61 N.E. 425, 85 Am.St.Rep. 323; Means v. State, 125 Wis. 650, 104 N.W. 815; Mascolo v. Montesanto, 61 Conn. 50, 23 A. 714, 29 Am.St.Rep. 170.

In Oklahoma, however, the statute (21 O.S.1941 §§ 886, 887) does not fix an age of consent, but it provides:

'Every person who is guilty of the detestable and abominable crime against nature, committed with mankind or with a beast, is punishable by imprisonment in the penitentiary not exceeding ten years.

'Any sexual penetration, however slight, is sufficient to complete the crime against nature.'

In Medis v. State, 27 Tex.App. 194, 11 S.W. 112, 11 Am.St.Rep. 192, it is stated: 'On a trial for sodomy, the testimony of the person on whom the offense was committed must be corroborated, if he consented, and the jury should be so instructed where the question of consent is in doubt.'

In that admirable work on the Law of Crime by Dean William L. Burdick, Vol. 3,§ 879, it is said: 'Consent is not an element of the crime of sodomy since it may be committed with or without consent. If both of the parties are adults and both consent, the active and the pathic party, then both are guilty, but if one of the parties is a young child only the adult is punishable. The crime may be committed by a husband upon his wife, but a party consenting is usually an accomplice, and ordinarily the testimony of an accomplice requires corroboration, and it has been held that a wife who consented and afterwards accused her husband would require corroboration.'

The authorities seem to be unanimous in holding that the person who consents to the act is an accomplice. Counsel for the state have cited no cases to the contrary, and we have found none.

In LeFavour v. State, 77 Okl.Cr. 383, 142 P.2d 132, in a sodomy case, although not passing...