Fitzpatrick v. State

• Decision Date: 17 March 1948
• Docket Number: A-10796.
• Citation: 194 P.2d 184,87 Okla.Crim. 51
• Parties: FITZPATRICK v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

194 P.2d 184

87 Okla.Crim. 51

FITZPATRICK v. STATE.

No. A-10796.

Court of Criminal Appeals of Oklahoma

March 17, 1948

Rehearing Denied June 9, 1948.

Appeal from District Court, Logan County; Henry W. Hoel, Judge.

Merle Fitzpatrick was convicted of incest, and he appeals.

Affirmed.

BAREFOOT P.J., dissenting.

Syllabus by the Court

1. In an incest case conviction may be had upon the uncorroborated testimony of the prosecutrix, where her testimony is not inherently improbable, conflicting, inconsistent and contradictory.

2. In an incest case where the prosecutrix is corroborated the question of the sufficiency of the corroboration creates an issue of fact for the jury.

3. Where the evidence is conflicting and that offered by the State reasonably tends to sustain the judgment and sentence the Criminal Court of Appeals will not substitute its judgment for that of the jury.

4. Held, the evidence reasonably tends to support the finding of the jury and this judgment and sentence must therefore be affirmed.

A. V Dinwiddie, of Guthrie, for plaintiff in error.

Mac Q. Williamson, Atty. Gen. and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT Judge.

This appeal was perfected by Merle Fitzpatrick, defendant below, from a conviction for incest committed upon his 15-year-old daughter, Jeannine. The jury fixed the punishment of the defendant by imprisonment in the State Penitentiary at McAlester, for a period of 10 years and the judgment and sentence of the district court of Logan County was in accord therewith.

The only question raised by the appeal is that the evidence is insufficient to support the conviction.

The State's case is based primarily, as it would naturally be in a case of this kind, upon the testimony of the defendant's daughter, the victim of the father's uncontrollable lust. Her testimony in substance is substantially as follows: Though she said her father had had intercourse with her six different times, the evidence of the State revolves around three different occasions and the conviction herein is based upon the alleged intercourse of March 30, 1945, as pleaded in the information. Jeannine Fitzpatrick testified that the first act of sexual intercourse took place under circumstances substantially as follows: She said that about a week after Christmas or about the first of January 1945 her father went to town and was gone until about midnight. She said that her mother, her older brother Eugene, 18 years of age, Noma, Mildred and Pauline Lovelady had gone hunting. That she and her brother Joe, 7 years of age, and her sister Merlene, 10 years of age, were left at home and were in their bedroom asleep. That her father came home about eleven or twelve o'clock and awakened her and told her to get him some supper. That she got up out of bed in her night gown. That after she got up he subdenly decided that he didn't want any supper and told her that he did not. He told her to go into his bedroom. She told him that she did not want to go in there and he made her go in. That he pushed her into the room and closed the door. That when he got her into the bedroom he told her to lay down on the bed and she told him she wasn't going to do it. He then said to her, 'Fatherly is the father that opened the daughter's womb.' She further testified, 'he said that was a statement out of the Bible and that it wasn't wrong.' Again she said he told her to lay down on the bed and upon her refusal so to do he pushed her down on the bed and had sexual intercourse with her at that time and place. She said it hurt her private parts. When he had completed the intercourse she got up and went back to bed. She testified on cross examination that the reason she did not tell her mother, her brother, and the Lovelady girls about it was because she was scared. About five minutes later her mother, her brother Eugene, and the Lovelady girls returned from hunting skunks and opossums.

In relation to this incident the defense offered proof on the part of the brother Eugene and one of the Lovelady girls to the effect that they saw the father's automobile drive up when they were about a half block away from the house and that when they arrived at the house he was building a fire in the kitchen stove, apparently in preparation for fixing his supper. The father denied that he had sexual relations with his daughter. His testimony is corroborative of the circumstance as to the opportunity, to the effect that he did arrive before the hunting party returned to the house and that he did wake her up for the purpose of fixing supper. It has been held that: 'OPPORTUNITY MAY BE CONSIDERED AS ONE OF the circumstances, but it is not 'corroboration', and cannot be considered on the subject of corroboration.' Alcorn v. State, 70 Okl.Cr. 386, 106 P.2d 838.

Jeannine Fitzpatrick testified that the second time her father had intercourse with her was about two weeks later. She said her father left the house, she thought, to go to the neighbors. She said that after he had been gone some little time she left the house to go to the outside toilet; that he saw her before she returned to the house. That there was a pile of baled hay out behind the toilet. When she first saw him she didn't think anything about it. He then told her to come out by the hay pile and she said she then knew what he was going to do. She said it was quite dark and the rest of the family was in the house. When they got to the hay pile he told her to lay down and she said she was not going to do it but he pushed her down, and held her hands and had a second act of sexual intercourse with her. In relation to this act of intercourse, the father said no such thing ever occurred. Jeannine Fitzpatrick testified that after this second act of intercourse, the next day she told her mother about it. She said that four acts of intercourse occurred following the first two which she testified about.

The last act of intercourse concerning which she testified, is the one alleged in the information. She said it took place on March 30, 1945. The way she fixed the date was because it was the day following her little brother's birthday. She said that her mother and her uncle and aunt, Mr. and Mrs. Lloyd Parker, from Wichita, Kansas, had driven to Muskogee on business. That on their return from Muskogee they brought a birthday cake. That that day she and her brothers Eugene and Joe and her sister went to school and that they returned home on the bus about 4:30 that afternoon. That when she came home she immediately started washing dishes. That her older brother Eugene changed his clothes and went to help his father who was plowing in the field about a quarter of a mile away. That after her brother left and had been gone a few minutes, her father came in. He told Merlene, the little sister, and her little brother Joe to feed the chickens and gather up the eggs and that when they got through they would go to the show. That left just she and her father in the house together. Her testimony in relation to this act of intercourse, in response to a question to relate what happened, is as follows, to-wit: 'He told me to stop doing dishes and to go in his bedroom and I told him I wasn't going to do it, and he told me that he wouldn't give me any more lunch money or anything if I didn't, and I told him I didn't care, and he pushed me in his bedroom and then he told me to lay down, and I told him I wasn't going to do it and he pushed me onto the bed, and then he had sexual intercourse with me, for the last time.' She said that he then told her she didn't need to fix any supper that night that we would go to town and eat and go to a show. That he then went after the cows. That about dark Eugene unharnessed the horses and fed them. That her father had already got the cows in and separated the milk. That they then got ready and started in to town to eat and to go to the show. She said that they all loaded into the pick-up truck and started to Guthrie but that they had only gotten a little ways down the road when they saw her aunt, uncle and mother pass them. They then turned around and went back home. When they got home her mother prepared supper. That they all had some of the birthday cake which her mother had brought home as a surprise for her little brother, Joe, whose birthday they had celebrated the day before.

She further testified in response to a question as to what, if anything, her father said to her about her menstrual periods from the first to the last act of sexual intercourse, as follows: 'He always wanted to know if they were regular.' She said that she had told her mother about these acts of intercourse and she said her mother called her daddy in and accused him in her presence. On April 26, 1945, her mother committed suicide.

She said that she had never run around with boys and that she had never had acts of sexual intercourse with anybody other than her father. In this connection, Doctor P. B. Gardner, who testified at the preliminary hearing but who had since died, testified that he examined her on April 28, 1945, two days after her mother died. He said that in his opinion he was sure that Jeannine Fitzpatrick had had sexual intercourse. The State did not see fit to cross examine Doctor Gardner. His evidence stands uncontradicted in the record.

The record shows that later on she left Guthrie and went to Wichita Kansas and later on to Kansas City with a girl friend. She said that the reason she did that was because she thought everybody knew about it and she couldn't stand it.

Jeannine's 10-year-old sister, Merlene Fitzpatrick, testified that she and Eugene, Joe and Jeannine went to school on March 30. That she could remember the day in question because it was the day after...