Syllabus
by the Court.
In a
prosecution for assault with intent to rape, former acts of
defendant of the kind committed on the prosecutrix are
relevant on the issue of intent, but such occurrences must be
closely related in point of time to that upon which the
prosecution is based in order to avoid the objection that
defendant has been unfairly surprised.
It is
manifestly unfair to defendant to permit such evidence to be
introduced in rebuttal where the nearest of such alleged
separate and distinct acts of immoral conduct with other
females occurred in point of time 9 months prior to the
commission of the alleged offense, and under circumstances
wholly dissimilar.
Where
the evidence of defendant's guilt of the crime of assault
to rape is weak and unsatisfactory, the admission in rebuttal
of evidence of alleged separate and distinct acts of immoral
conduct, occurring in point of time from 9 to 15 months prior
to the commission of the alleged offense, is held to be
reversible error.
Appeal
from District Court, Oklahoma County; Edward Dewes Oldfield
Judge.
George
Dunscombe was convicted of assault with intent to rape, and
he appeals. Reversed and remanded.
MATSON
J.
George
Dunscombe was convicted in the district court of Oklahoma
county of the crime of assault with intent to commit a rape
alleged in the information to have been committed on one Ruth
Lowe, a female under 16 years of age, about the 16th day of
February, 1919.
In
substance, the testimony is about as follows: Ruth Lowe, the
prosecuting witness, testified that she was 15 years of age
on the 3d day of February, 1919; that on the 16th day of
February, 1919, she together with her aunt Alma Roberts, were
rooming with defendant and his wife on West Third street in
Oklahoma City, and had been rooming there since the 24th day
of December, 1918; that on the 16th of February, 1919, which
was Sunday, witness and her aunt slept together in one room
of defendant's home, while defendant and his wife slept
on a sleeping porch; that about 7:15 on that morning, witness
went to the sleeping porch and awakened defendant and his
wife, after which she returned to a room adjoining the one in
which she and her aunt had been sleeping, and sat down by a
stove. Thereafter, defendant came into the room, and she and
defendant then went into her room. As to what occurred then,
witness testified as follows:
"Q. When was the first time you saw Mr. Dunscombe that
morning, if you remember? A. About 8:30, I suppose.
Q. What was he doing, if anything? A. Nothing.
Q. Where was he at? A. He was--when I first saw him he was in
his room.
Q. When was the next time you saw him? A. He came in my room
the next time.
Q. About what time was it he came into your room? A. About
8:30.
Q. What did he do, if anything, when he came in your room? A.
He came in and got in bed there.
Q. Who was in bed, if anybody? A. My aunt was there at first.
Q. Were you in your night clothes, or were you dressed? A.
No, sir; I was not dressed.
Q. What did he do, if anything, when he got in bed with you?
A. My aunt got out, and he grabbed me, and I tried to get
away from him, and began to scuffle and he pinched me on the
breast.
Q. What else did he do, if anything? A. He pinched me on the
limbs and breast, and I scuffled and tried to get away from
him, and we scuffled for quite a while.
Q. Did he at that time or any other time make any threats
toward you?
Mr. Boardman: That's objected to as incompetent,
irrelevant, and immaterial; leading and suggestive.
The Court: Overruled.
Mr. Boardman: Exceptions.
A. Yes, sir.
Q. What did he say? A. He told me not to tell it.
Q. What was it? A. He told me I had better not tell it.
Q. What did he say about the reason, if any? A. He did not
give any reason, only I had better not do it.
Q. Did he say anything with reference to what he would do
with you if you did tell it?
A. He said there was no telling what he would do.
Q. Did you believe that? A. Yes.
Q. Had he ever attempted to do as he did that morning any
time prior to that day? A. Yes.
Q. When was it, if you remember? A. When we would be in the
front room, and at his office.
Q. How many times, if you know, at his office did he attempt
to do these things? A. I don't know.
Q. What did he do at his office, Ruth? A. When I would go in,
sometimes he would grab me, and pinch me, and scuffle; and
when I would pass him in the front room he would pinch me on
the hip.
Q. Did he ever put his hands under your clothes? A. Yes, sir.
Q. Did you make any objection to that? A. Yes, sir.
Q. What would he say? A. He would just scuffle with me and
try to hold me.
Q. Did you ever tell anybody what Mr. Dunscombe had done
toward you? A. No, sir.
Q. Until after the information was filed? A. No, sir.
Q. What was the reason? A. Because he told me not to, and I
was afraid to.
Q. Did you ever tell your aunt anything about it? A. No, sir.
Q. How long did you stay in the room after Mr. Dunscombe came
in your room on Sunday, February 16th? A. About 15 minutes, I
suppose.
Q. During this time, was he in bed with you? A. Yes, sir.
Q. With reference to how the covers were on the bed, were
they off of you, or were they over you? A. They were on the
bed, but they were just all mixed up. He came and got in, and
we were scuffling, and we threw them off.
Q. Was there anybody in the room during the time you and Mr.
Dunscombe were in the room? A. My aunt went out, and then we
were alone.
Q. Then I believe you said you were alone the rest of the
time he was in there? A. Yes, sir.
Q. Did he ever do anything besides pinch you on the breast
and lower limbs, and place his hands under your dress? A.
Yes, sir; he has bit me lots of times.
Q. Where? A. Bit me on the arms, and on the limbs.
Q. Whereabouts did he bite you on the limbs? A. Below the
knees, when we were scuffling.
Q. Any place else? A. No, sir.
Q. Has he ever done anything else other than what you have
related? A. No, sir.
Q. Did the threats Mr. Dunscombe made toward you cause you to
be afraid of him? A. Yes, sir. * * *"
On
cross-examination, prosecutrix testified in part as follows:
"Q. I understood you to say you had been to Mr. and Mrs
Dunscombe's room that Sunday morning before he came to
your room? A. Yes, sir.
Q. So you say that was some time before 8:30, you think? A.
It was about 7:15 when I went to their room.
Q. At that time can you tell the jury whether or not Mr. and
Mrs. Alberry were in the house? A. No, sir; I don't
remember which party were in the house.
Q. There were some other folks in the house? A. Yes, sir.
Q. At that time, were Mr. and Mrs. Alberry renting rooms
there at all? A. I don't think so; I think it was the
other lady, Alma's friend.
Q. You don't think that she had left then? A. No, sir.
Q. Your recollection is that Mr. and Mrs. Alberry came there
after this Sunday? A. Yes, sir; I thought it was them that
was in there at that time, but I don't believe it was
now.
Q. You think it was your aunt's friend? A. Yes, sir.
Q. And Mrs. and Mr. Gardner were there? A. Yes, sir.
Q. How did you happen to go there about the time you awakened
up, 7:15, and go to Mr. Dunscombe's room? A. Because Mrs.
Dunscombe told me to call her when we got up.
Q. When did she tell you that? A. That night.
Q. Told you to call Mr. Dunscombe the next morning? A. Told
me to call her the next morning.
Q. She had told you to call her the next morning? A. She told
me the night before to call her the next morning when we got
up.
Q. How far from your room was Mr. and Mrs. Dunscombe's
room? A. Their's was just off the dining room, on the
sleeping porch, and ours was off the front room.
Q. On the same floor? A. Yes, sir.
Q. Any upstairs to that house? A. No, sir.
Q. When you got out of bed that morning, did you put on any
jacket or anything around you? A. Yes, sir.
Q. Around your night clothes? A. Yes, sir.
Q. What was it? A. I had on a bath robe.
Q. A regular bath robe? A. Yes, sir.
Q. Anything else? A. No, sir.
Q. That was when you first got out of bed? A. Yes, sir.
Q. Then I understand you went to Mr. and Mrs. Dunscombe's
room and called them? A. Yes, sir.
Q. What did you say to them? A. I told Mrs. Dunscombe to
'come on and get up now,' is the way I said it.
Q. What did she say? A. She said, 'All right.'
Q. Did Mr. Dunscombe say anything? A. I don't remember
that he did.
Q. Was he in the room? A. Yes, sir.
Q. You are sure that he was in the room? A. Yes, sir.
Q. You opened the door, did you? A. Yes, sir.
Q. Did you go in? A. No, sir; not that morning.
Q. You did not go in? A. No, sir.
Q. Miss Ruth, at that time you did stay some of the nights in
the room occupied by
Mr. and Mrs. Dunscombe, was that the night your aunt was out
and you was there? A. Yes, sir.
Q. And you and Mrs. Dunscombe were both in bed? A. Yes, sir.
Q. Mr. and Mrs. Dunscombe were both in bed, and you got in
bed with them a while? A. Yes, sir.
Q. And that was all there was to that? A. Yes, sir.
Q. When was that as compared to this Sunday, February 16th,
was that the day before you speak of, this Sunday you
mentioned? A. Yes, sir.
Q. About how long before? A. About a week, or something like
that; I don't remember the date.
Q. Mrs. Dunscombe was still in bed when you left that night,
was she? A. Yes, sir.
Q. Now, after you had called Mr. and Mrs. Dunscombe that
morning, Sunday, February 16th, did you, in going from your
room to their room, did you see anybody else in the house? A.
No, sir.
Q. Mrs. and Mr. Gardner, or the other lady? A. No, sir; they
were not up yet.
Q.
...
