Cunningham v. State
| Decision Date | 08 September 1933 |
| Docket Number | A-8537. |
| Citation | 24 P.2d 1013,55 Okla.Crim. 67 |
| Parties | CUNNINGHAM v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Information alleged that defendant willfully, wrongfully, and feloniously committed an act of sexual intercourse with prosecutrix while she was under the influence of intoxicating liquor administered by defendant, and that by reason thereof she was incapable of giving legal assent to the act, and that defendant intended to commit crime of rape in the first degree.
Syllabus by the Court.
1. Rape in the first degree is committed under the circumstances defined by the third, fourth, and fifth subdivisions of section 2515, Okl. St. 1931, and under the first subdivision of said section where the female is under the age of fourteen years. In all other cases rape is of the second degree. Section 2518, Okl. St. 1931.
2. Held, that the information charges rape of the second degree under the circumstances defined by the sixth subdivision of section 2515, Okl. St. 1931.
Appeal from District Court, Latimer County; D. C. McCurtain, Judge.
John Cunningham was convicted of rape in the first degree, and he appeals.
Judgment modified, and, as modified, affirmed.
Jack Bradley, of Wilburton, and Claud Briggs, of Oklahoma City for plaintiff in error.
J Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.
Plaintiff in error, hereinafter called defendant, was convicted in the district court of Latimer county of rape in the first degree and was sentenced to serve a term of fifteen years in the state penitentiary. That part of the information defining and charging the offense is: "* * * That is to say that he the said defendant, John Cunningham, being then and there a male person over the age of 18 years, did within said Latimer County and State of Oklahoma, on or about the aforesaid date, March 24th, 1932, wilfully, wrongfully, unlawfully and feloniously have and accomplish an act of sexual intercourse with one Bernice Small, while she the said Bernice Small was under the influence of intoxicating liquor administered by the said defendant and was thereby prevented from resisting the said unlawful act of intercourse by the defendant, and that by reason of the temporary unsoundness of the mind of the said Bernice Small, caused by the influence of the intoxicating liquor administered to her by the said defendant as aforesaid, she the said Bernice Small was then and there incapable of giving legal consent to said act of intercourse, she the said Bernice Small being a female person and not the wife of him the said John Cunningham, all of which was with the unlawful and felonious intent upon the part of said defendant to commit the crime of rape in the First Degree. * * *"
The state sufficiently supports the charge by proof that defendant either personally or in privity with another furnished intoxicating liquor to the prosecutrix from which she became intoxicated, and while in such state of intoxication the act of sexual intercourse was accomplished. The court limited the offense as charged in instructions 4, 5, 6, and 7, as follows:
"No. 4. Now, in this case, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, John Cunningham, did in Latimer County, Oklahoma, on or about the 24th, day of March, 1932, he being then and there a male person over the age of 18 years, wilfully, wrongfully, unlawfully and feloniously have and accomplish an act of sexual intercourse with one Bernice Small, while she was under the influence of intoxicating liquor administered by the said defendant and was thereby prevented from resisting the said unlawful act of intercourse by the defendant, and that by reason of the temporary unsoundness of the mind of the said Bernice Small, caused by the influence of intoxicating liquor administered to her by the said defendant as aforesaid, she, the said Bernice Small being a female person and not the wife of the said John Cunningham, all of which was with the unlawful and felonious intent upon the part of said defendant to commit the crime of Rape in the First Degree, as charged in the information herein, then and in that event you will find the defendant guilty of the crime charged.
No. 5. If you find the defendant guilty of the crime charged, you may assess his punishment at death, or imprisonment in the state penitentiary for any period of time not less than fifteen years.
If you find the defendant guilty of Rape in the First Degree, as charged in the information and as herein defined to you, but you cannot agree upon the punishment to be inflicted upon him, then you may state in your verdict that you find the defendant guilty of Rape in the First Degree, as charged in the information, but that you cannot agree on the punishment, and that you request the Court to fix or assess the punishment.
No. 6. The offense charged herein is that of Rape in the First Degree, and the age of the female is immaterial and should not be considered by you in determining the guilt or innocence of this defendant, as under the law of this state an act of sexual intercourse accomplished with any female by force, whether physical or by use of drugs or...
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...Penal Code, § 1181, subd. 6; People v. Odle, 37 Cal.2d 52, 230 P.2d 345; People v. Tubby, 34 Cal.2d 72, 207 P.2d 51; Cunningham v. State, 55 Okl.Cr. 67, 24 P.2d 1013; Stanley v. State, 183 Ark. 1093, 40 S.W.2d 415; Brooks v. State, 141 Ark. 57, 216 S.W. The judgment of conviction of appella......
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