Cooper v. State
| Decision Date | 18 July 1925 |
| Docket Number | A-4908. |
| Parties | COOPER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
This court will presume that all proceedings in courts of record are regular, and the burden is upon an appellant to show by the record that error was committed during the course of the trial, and, unless jurisdictional, deprived appellant of some substantial right, to his injury.
Where a defendant challenges an information by motion to quash for the reason that he has not had a preliminary, it must affirmatively appear from the record that the motion to quash was filed, called to the attention of the trial court and overruled, and exceptions taken, otherwise his plea of not guilty and announcement of ready for trial will constitute a waiver of the objection.
In a prosecution for statutory rape, where there is proven more than one act of sexual intercourse between defendant and prosecutrix on which a conviction could be based, the trial court, upon motion, should require the prosecution to elect upon which of such acts it will rely for a conviction. Or, if no motion be made, the trial court of its own motion should either require the prosecution to elect or should treat the act of which the state first introduces evidence which tends in any degree to prove the offense charged as an election and should by instruction limit the jury to a consideration of such particular act as a basis for conviction, and should limit proof of other acts as corroboration or as showing the relation of the parties.
In a prosecution for statutory rape, where the evidence shows several acts of intercourse between the defendant and prosecutrix upon which a conviction could be based, and the trial court by its instruction permits the jury to base its conviction on any one of such acts, without requiring the state to elect, and without treating the first act proven as an election, and the verdict is general, the judgment will be reversed since it cannot be determined upon which particular act of sexual intercourse the conviction is based.
Appeal from District Court, Texas County; Arthur G. Sutton, Judge.
Raymond Cooper was convicted of rape in the second degree, and appeals. Reversed.
Ross Rizley and H. E. G. Putman, both of Guymon, for plaintiff in error.
George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
The plaintiff in error will be referred to as defendant, as in the court below.
From a conviction on a charge of rape in the second degree defendant appeals. The record discloses that in the month of December, 1920, the prosecutrix, Berta Noel, was 15 years of age, attending the Guymon high school as a first year pupil. During that month she met the defendant on two or three occasions when he came where she boarded to call on her. On the 20th of December he met her at the post office, and persuaded her to go to the town of Hooker with him. On that afternoon gave her $5 for railroad fare and expenses, and they did go on the same train to the town of Hooker. He accompanied her to a rooming house there, where the prosecutrix registered, was assigned a room on the first floor, and defendant had a room on the second floor. Later the defendant took prosecutrix to the second floor introduced her to a woman who had a room on that floor, where she stayed some time. He then took the prosecutrix to a café where he worked, where they had supper together, and on returning to the hotel took her by the back stairs to his room where an act of sexual intercourse was accomplished. They then called on some friends of his in the town, and later returned to the hotel, and two or three acts of sexual intercourse were accomplished in a room on the first floor. Some time during the night the prosecutrix returned by train to Guymon. After that the defendant met her on one or two occasions when acts of intercourse took place. The prosecutrix became pregnant and gave birth to a child on the 15th of September, following. Her testimony is that the defendant agreed if she got into trouble he would marry her. This was corroborated by proof of statements made by the defendant. The defendant did not take the stand, and there is no contradiction of the fact of the acts of intercourse as detailed.
Three assignments of error are presented and argued in the brief of defendant: First, that the court erred in overruling the motion to quash the information; second, error in the court's instruction No. 4; third, error in the court's instruction No. 5. These assignments will be considered in the order presented.
The case-made contains what purports to be a motion to quash the information on the ground that no verified complaint had been filed before a committing magistrate; that no preliminary hearing had been had or waived as provided by law; that there was a fatal variance between the original complaint before the committing magistrate and the information. Attached to the motion to quash is a copy of the original complaint and the transcript of the justice of the peace. The preliminary complaint and the information are substantially in the same language. The complaint is verified before a justice of the peace, who attaches his undated jurat. Also, there is attached a transcript of the committing magistrate in part in this language:
"* * * Now, on this 7th day of March, 1923, this case came on for preliminary, and after the court...
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