Dawes v. State
| Decision Date | 13 May 1926 |
| Docket Number | A-5473. |
| Citation | 246 P. 482,34 Okla.Crim. 225 |
| Parties | DAWES v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
A motion for continuance because of the absence of a witness is addressed to the sound discretion of the trial court, and its decision will not be disturbed, unless an abuse of discretion appears.
The refusal of a continuance on the ground of the absence of a witness held error on account of the peculiar circumstances of this case.
While in a prosecution for rape, the state may inquire of the prosecutrix whether she made complaint of the outrage, and when and to whom, but not as to the particular facts, which she stated, still the defense, on cross-examination, may inquire as to the particulars of such complaints.
While it is the law that a conviction for rape may be sustained upon the uncorroborated evidence of the prosecutrix, it is nevertheless equally well settled that, when such evidence is inherently improbable and almost incredible, there must be corroboration by other evidence as to the principal facts to sustain a conviction.
In a prosecution for statutory rape, evidence held insufficient to sustain a conviction.
Appeal from District Court, Cherokee County; J. T. Parks, Judge.
Lee Dawes was convicted of rape, and he appeals. Reversed and remanded, with direction.
J Berry King, of Muskogee, and B. L. Keenan, of Tahlequah, for plaintiff in error.
George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen for the State.
On information filed in the district court of Cherokee county August 13, 1924, charging that in said county, December 27 1923, Lee Dawes had sexual intercourse with Montie Etheridge, a female, under the age of 16 years, and not the wife of said defendant, he was tried and convicted, the jury leaving the punishment to be assessed by the court. Motion for new trial was overruled by the court, and judgment rendered on the verdict, sentencing defendant to imprisonment in the penitentiary for the term of 14 years. The errors relied on to reverse the judgment will be taken up in the order presented.
It is urged that the court erred in overruling defendant's motion for a continuance on the ground of the absence of Jennie Vann, a material witness, duly subp naed by him in reasonable time, and, as the record shows, subp naed by the state.
Defendant in his affidavit states:
The subp nas issued and the return thereon were offered in evidence. The motion was overruled and exception taken.
It is a well-settled general rule that in reviewing the refusal of a continuance on account of the absence of witnesses the record will be examined and the evidence adduced at the trial will be considered by this court for the purpose of determining whether the alleged testimony was probably true. McCarty v. State, 10 Okl. Cr. 407, 136 P. 1122.
The prosecutrix was the only witness in this case called by the state. She testified: That she resided with her parents one mile west of Tahlequah, on Judge Parks' place. That she was 14 years old February 23, 1924. That she first saw Lee Dawes about a month before this happened. That, about a week after Christmas she was in Tahlequah, Lee Dawes, Jennie Vann, and Bill Condon came down the street and asked her to go to the depot with them to see Watie Foreman, who was leaving that night. That she got into the car, and, when they got to the depot, the train was leaving. They said they would take her on home. When they got out there defendant stopped the car, and Bill Condon and Jennie Vann walked off down the road. That defendant pulled her out and behind the car and there had sexual intercourse with her. That they were there about five minutes. Then they got back in the car. About this time Jennie and Bill came back. Then they took her home. Her parents were there and she went to bed. That the next morning she told her sister about it.
For the defense, William Condon testified: That he was supb naed as a witness for the state. That he was with Jennie Vann in Lee Dawes' car, going to the depot to see Watie Foreman off. Dawes stopped, and a girl that he never saw before got into the car on the invitation of Jennie Vann. Then they drove on by the depot and stopped on the public road. That they talked a while, and he got out of the car and walked down the road to urinate. That Jennie Vann did not get out of the car. That they drove back to Tahlequah, and Jennie Vann and the girl in the front seat got out at Jennie Vann's house, on Muskogee avenue.
As a witness in his own behalf, Lee Dawes testified: That Mr. Condon and Jennie Vann got in his car. It was near train time, and they were going to see Watie Foreman leave on that train. Montie Etheridge came along. Jennie Vann remarked about her getting in, and he stopped; she got in, and said she was on her way home. That when they got to the depot the train was pulling out, and he drove on out towards her home, on Judge Parks' place and stopped about even with the house for her to get out and go home. That they talked there a while, and she said she was not going home, that she was going back to Ester Thorn's, and he turned around and drove back to town. That he did not get out of the car while she was in it, and did not have sexual intercourse with the prosecutrix.
After judgment and within the term, defendant filed a supplemental motion for a new trial on the ground of newly discovered evidence, supported by his affidavit and the affidavits of Jennie Vann and Callie Etheridge.
The affidavit of Jennie Vann, corroborates the testimony of defendant and witness Condon, and further states:
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