Colglazier v. State

• Decision Date: 03 February 1923
• Docket Number: A-3924.
• Citation: 212 P. 332,23 Okla.Crim. 23
• Parties: COLGLAZIER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

212 P. 332

23 Okla.Crim. 23

COLGLAZIER v. STATE.

No. A-3924.

Court of Criminal Appeals of Oklahoma

February 3, 1923

Syllabus by the Court.

Evidence examined and held sufficient to support a conviction of assault with intent to rape a female child under the age of consent.

Evidence of defendant's conduct and actions, when first informed that he is accused of an offense, and of his subsequent flight, is admissible against him, and the circumstances surrounding such conduct are res gestæ thereof. Defendant's explanation of such conduct is likewise admissible.

It is not error to refuse a requested instruction, correctly stating the law applicable to the issues, if such law is sufficiently covered in the general charge.

Appeal from District Court, Payne County; Arthur R. Swank, Judge.

Roy Colglazier was convicted of assault with intent to rape, and he appeals. Affirmed.

John F Vaughan, of Stillwater, for plaintiff in error.

George F. Short, Atty. Gen., and N.W. Gore, Asst. Atty. Gen., for the State.

MATSON P.J.

Plaintiff in error, Roy Colglazier (hereinafter referred to as defendant), was convicted in the district court of Payne county on the 22d day of October, 1920, of the crime of assault with intent to commit rape and sentenced to serve a term of five years' imprisonment in the state penitentiary.

The information, in substance, charges that on the 18th day of May 1920, one Roy Colglazier, did then and there willfully unlawfully, and feloniously commit an assault upon the person of one Maxine Moore, with his hands, seize, hold, strike wound, and illtreat her, the said Maxine Moore, with the willful, unlawful, and felonious intent of him, the said Roy Colglazier, then and there to carnally know, ravish, and have sexual intercourse with her, the said Maxine Moore, she, the said Maxine Moore, being then and there a female child under the age of 16 years and of the age of 11 years, and not the wife of him, the said Roy Colglazier.

The alleged offense occurred in the city of Stillwater, the county seat of Payne county, some time between 5 and 6 o'clock on the afternoon of the 18th of May, 1920. The prosecuting witness detailed the circumstances of the crime as follows:

"Q. Then what, if anything, did Roy Colglazier do? A. He went up stairs. Q. Then what, if anything, did he do? A. He told me to come up there. Q. Did you go up there? A. Yes sir. Q. When you got up there what was Roy Colglazier doing, if anything? A. He was in his bedroom. Q. Go ahead and tell the jury? A. He was in his bedroom and had his trousers off, and I stepped in the door, and said, 'Oh.' He stepped back. Q. Then what, if anything, did Roy Colglazier do? A. He stepped to the other side of the room. Q. Will you explain to the jury--where were you then? A. At the head of the steps. Q. Did Roy Colglazier come to you then? A. He stepped to the other side of the room. Q. Then what, if anything, did he do? A. He says, 'Wait a minute until I get my pants on.' Q. Then what did he do? A. He said, 'Come in the bedroom and look in the bottom drawer.' Q. Did you go in? A. Yes, sir. Q. Then what happened next? A. He says, 'We will go and look in some of Elma's playthings.' Q. Did he have his pants on? A. Yes, sir. Q. Then what, if anything, did he do? A. He stepped back and let me in Elma's room, and we looked in some boxes, and the book wasn't there. Q. Then what happened? A. He shut the door. Q. Why did he shut the door? A. I don't know. Q. Where were you and he then? A. I was in this room and so was he. Q. Then what, if anything, did he do? A. He sat down on a stool. Q. Then what, if anything, did he do? A. He took hold of my shoulders, and drew me up to him. Q. What, if anything, did he do then? A. He asked me if I would take off my panties, and he would take off his. Q. What, if anything, else? A. And if I would let him see me, he would let me see him. Q. What, if anything, else? A. And he put his hand on me. Q. Show the jury where he put his hand on you? A. Just like that (indicating to the jury). Q. Then what, if anything, did he do? A. I said, 'I want to go down and play with Lucile and Gladys,' and I says. 'I will scream for Lucile and Gladys, if you don't let me go.' Q. Then what did he do? A. Got up and stepped to the door and says, 'You promise you won't tell anybody I had my pants off.' He said that twice. Q. What did you tell him? A. I says, 'I won't.' Q. You say he took hold of you and pulled you up to him. A Yes, sir. Q. Tell the jury what he did then, just how he pulled you up? Q. He took hold of my arms like this (indicating) and brought me up between his legs. Q. What did you do when he pulled you between his legs? A. I told him I wanted to go play with Lucile and Gladys, and I would scream for Lucile if he didn't let me loose. Q. What did he do then? A. He asked me if I would take down my panties, and he would take off his. Q. Then what did he do? A. If I would let him see me, he would let me see him. Q. Then what did you do? A. I told him to let me loose; I wanted to go play with Lucile. Q. Then what did he do? A. He said twice, 'Don't tell any one I had my pants off.' Q. Then what did he do? A. He opened the door, and I went down stairs and out doors. Q. Who did you find out doors? A. Lucile Hetherington. Q. Anybody else? A. No, sir. Q. Who did you first tell about this afterwards? A. I told Lucile and Gladys. Q. How soon did you tell them after this happened? A. I went over to where we were playing. Q. Then who did you tell next, if you told any one? A. I told my mother. Q. How long after this happened until you told your mother? A. About 15 minutes afterwards. Q. Where was your mother when you told her? A. In the house. Q. What, if anything, were you doing when you saw Gladys and Lucile? A. I told them, then I went home. Q. What, if anything, were you doing when you went down stairs from Roy Colglazier? A. I went out doors and met Lucile Hetherington at the corner of the house, and she asked me what I was crying about. Q. Were you crying at the time? A. Yes, sir."

The defendant, as a witness in his own behalf, explained what occurred on that occasion as follows:

"Q. State your name? A. Roy Colglazier. Q. Tell the jury what happened in this matter? A. I was there at home about 12 o'clock, and this little girl come along and asked for a book. I told her what was the name of the book, and she said she didn't know. I says, 'I don't know nothing about the books; my folks are not at home,' and I says, 'You find out the name of it and come back and let me know.' Then I says, 'I will see if I can find it.' I went back to work, and about 5:30 she came back and I was feeding the chickens. Pretty soon Dorothy Moyne Shideler was there, and I says, 'Where is Maxine?' and she says 'over to Gladys' playing.' She called Maxine and Maxine came over and asked me what I wanted. I asked her for the name of the book, and she told me, and I told her to go look for it. She went in the front room to hunt for the book. I went up stairs to change my clothes, and I was sitting on the bed with my trousers off and taking off my shoes. She run up stairs and says, 'Oh.' Q. Did you call her up there? A. No, sir. I went on and stepped to the other side of the room and pulled the door kinda to and she couldn't see in my room. I says, 'You go look in my sister's room.' I says, 'It ain't in my room.' She went on in there, and when I got my clothes on and started down stairs, there she stood crying, and didn't say nothing. I says, 'Do want to go?

' and she didn't say nothing. I says, 'Don't go out crying and tell anybody you seen me with my pants off,' and she says, 'All right.' Q. Did you go in the other room with her? A. No, sir. Q. You heard her testify that you asked her to let you see her? A. Yes, sir. Q. Is that true? A. No, sir. Q. You heard her testify that you pulled her up between your legs? A. Yes, sir. Q. Is that true? A. No, sir. Q. Did you ever assault her in that way? A. No, sir. Q. Did you have any intention of having intercourse with her? A. No, sir."

Gertrude A. Moore, the mother of the prosecutrix, testified that her daughter Maxine was 11 years of age, and that about 5:30 o'clock on the afternoon of the 18th of May, 1920, her daughter came home crying and said she wanted to tell her something, and then told her what had happened.

Lucile Hetherington, witness for the state, testified that she was 12 years old, that she saw the defendant on the 18th of May, 1920, in the yard at his house about 5 o'clock in the afternoon, and that she heard defendant tell Dorothy Moyne Shideler to tell Maxine Moore to come over there, and that Dorothy told Maxine, and that Maxine went over to defendant's house.

Ralph Woods, a witness for the state, testified, in substance:

That he knew defendant and was with him on the 18th of May, 1920; that he first saw him down at the City Meat Market about noon and went with defendant to take two orders of meat to the north part of town, and after dinner went back to the butcher shop, and then the witness testified, over objection by defendant's counsel, that the colored butcher told Roy that there was a fine looking man come in there with a blue serge suit on, and a boy came in with a soldier suit on, and that Roy went out of the back door and then came back in the butcher shop and was hollering something and got a knife and said, "stand back." Mr. Moore said "Why don't you come in there" and he said, "I got a knife," and they stood back there a little while and then went in the shop. Mr. King was there and made Roy come in the shop and wanted them to stop. Then went up to the front end of the shop and Mr. Moore told him to come to his office and he would settle it. Then we had to get some meat up to the north end of town,

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