Ex parte Childers, A-12439

• Decision Date: 24 April 1957
• Docket Number: No. A-12439,A-12439
• Citation: 310 P.2d 776
• Parties: In the Matter of the Habeas Corpus of Roy Edward CHILDERS, Petitioner.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 776

310 P.2d 776

In the Matter of the Habeas Corpus of Roy Edward CHILDERS, Petitioner.

No. A-12439.

Criminal Court of Appeals of Oklahoma.

April 24, 1957.

Syllabus by the Court.

1. The general rule is that if a man have connection with a woman while she is asleep, he is guilty of rape, because the act is without her consent.

2. The term 'unconscious' used in the seventh subsection of 21 O.S.1951 § 1111 defining rape, has no reference to the loss of physical or mental faculties through assault and violence, but has only to do with a situation where the female is unconscious of the nature of the act.

3. Where it appears the trial court had jurisdiction of the defendant's person, jurisdiction of the subject matter, and authority under the law to pronounce the judgment and sentence, relief will not be granted by writ of habeas corpus.

Original, verified petition for writ of habeas corpus whereby petitioner, Roy Edward Childers, seeks his release from confinement in the State Penitentiary. Writ denied.

Roy Edward Childers, petitioner, per se.

Mac Q. Williamson, Atty. Gen., for respondent.

BRETT, Presiding Judge.

This is an original, verified petition for writ of habeas corpus brought by Roy Edward Childers, petitioner, wherein he alleges he is being unlawfully restrained of his liberty by H. C. McLeod, Warden of the Oklahoma State Penitentiary, McAlester Oklahoma, by virtue of a certain judgment and sentence rendered by the District Court of Oklahoma County, Oklahoma, sentencing the petitioner to three years in the penitentiary for the crime of rape in the second degree. Petitioner alleges that said restraint is illegal and unauthorized for the reason the District Court acquired no jurisdiction in that the information attempted to charge petitioner with the crime of second degree rape while the alleged victim 'was asleep and at the time unconscious of the nature of the act of sexual intercourse, and said fact was known to the defendant; * * *.' Petitioner further alleges that the aforesaid allegation in the information is contrary to 21 O.S.1951 § 1111(7), defining the charge of rape.

We do not find any merit in the petitioner's contention. The above statute reads, in part, as follows:

'Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: * * *

'7th. Where she is at the time unconscious of the nature of the act and this is known to the accused.'

The evidence reveals that on the 1st day of May, 1955, some minutes after 3:00 o'clock P.M., the petitioner made forcible entry into the home of the victim and criminally assaulted her as both she and her husband lay, in a normal slumber, in bed. She was awakened by the act of the petitioner and aroused her husband who pursued the petitioner from the house with a knife. Penetration was established by competent testimony.

Our research does not reveal where an attack of this nature has previously been brought to the attention of this Court. Nor, do we find any previous expression by this Court construing the aforementioned seventh subdivision of 21 O.S.1951 § 1111. We do find, however, that this petitioner is not the originator of this method of committing rape. In State v. Welch, 191 Mo. 179, 89 S.W. 945, 947...