Frazee v. State

• Decision Date: 29 November 1944
• Docket Number: A-10487.
• Citation: 153 P.2d 637,79 Okla.Crim. 224
• Parties: FRAZEE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

153 P.2d 637

79 Okla.Crim. 224

FRAZEE v. STATE.

No. A-10487.

Court of Criminal Appeals of Oklahoma

November 29, 1944

Syllabus by the Court.

1. A motion to quash or set aside an information is the proper pleading to challenge alleged defects in the preliminary proceedings prior to the filing of the information.

2. The constitutional provision (Art. 2, Section 20) that the accused "shall have the right to be heard by himself and counsel" is in the nature of a personal privilege which the accused may waive.

3. Where the record discloses that a minor defendant appeared with his father for preliminary examination and was advised by Court as to his right to be heard by counsel, which was refused, an examining Court did not have duty to assign counsel to represent accused as a necessary prerequisite to due process of law.

4. It is not possible to define the term res gestae by any exact definition which will fit all cases; the term, in a general way, may be defined as the circumstances, facts, and declarations that grow out of the main fact, and shed light upon it, and tend to explain it, and made at a time so near either prior or subsequent to the main act, as to exclude the idea of deliberation or fabrication.

5. No fixed measure of time or distance from the main occurrence can be established as a rule to determine what should be a part of the res gestae. Each case must necessarily depend upon its own circumstances to establish whether the facts offered were a part of the same continuous transaction.

6. On a trial for rape, declarations of the prosecutrix made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterance of thought created by, or springing out of, the alleged assault, and made so soon thereafter as to exclude the presumption that they are the result of premeditation and design, are admissible as part of the res gestae.

7. Where the proof the State in rape case shows that crime was committed by force and, also, by threats, County Attorney may at his election charge the defendant in the information with the crime of rape "by means of force overcoming her resistance," and there is no fatal variance though testimony of prosecutrix shows that she submitted to the attack also because "of threats of immediate great bodily harm accompanied by apparent power of execution."

8. Under the Oklahoma law, 21 O.S.1941 § 1114, a male under the age of 18 years cannot be guilty of rape in the first degree.

9. Rape committed by a 16 year old youth upon a 24 year old woman by force and violence overcoming her resistance is rape in the second degree.

10. It is duty of jurors to reason together and harmonize their discordant views where possible. A juror should not consent to a verdict which he thinks is contrary to the evidence out of a mere deference to his fellow jurors. Yet, he may consider whether the doubt which he entertains is a reasonable one which makes no impression on the minds of others equally honest and equally intelligent with himself who have heard the testimony out of which the doubt arises and he may properly change his views because of this consideration. He can properly doubt the correctness of his own opinion when it is not concurred in by his fellow jurors and may without a violation of his oath, consent to a verdict, which, if he were acting alone, would not render.

11. Trial court may properly refuse a requested instruction by defendant which is so worded that it is an invitation to the jury to disagree on its verdict.

12. Where trial court instructs jury that its verdict "must be unanimous, that is, by concurrence of all 12 members," it is not necessary to further instruct them "that each juror should decide the issues presented for himself and if there is a single juror who has a reasonable doubt of defendant's guilt, it is his duty, under his oath, to stand by his conviction and favor his verdict of not guilty. ***"

13. The provisions of the statute pertaining to delinquent children, 10 O.S.1941 § 101, make it improper for the County Attorney on cross-examination to ask defendant if he had not been tried and convicted in the juvenile court.

14. Where County Attorney asks improper question on cross-examination and husband of prosecutrix during argument of counsel for defendant creates scene in court room, but guilt of defendant is clearly established, the judgment will not be reversed, but these two instances will be considered in determining whether the punishment assessed the defendant might be excessive by reason of these occurrences.

15. Record examined and sentence found to be excessive and modified from ten years imprisonment in the State Penitentiary to five years in the State Penitentiary.

Appeal from District Court, Comanche County; Toby Morris, Judge.

Donald Frazee was convicted of rape in the second degree, and he appeals.

Modified and affirmed.

p>Page Jerome Sullivan, of Duncan, for plaintiff in error.

Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.

JONES Presiding Judge.

The defendant, Donald Frazee, was charged in the District Court of Comanche County with the crime of rape; was tried, convicted, and sentenced to serve ten years in the State Penitentiary, and has appealed.

At the time of the act complained of, the defendant was 16 years and 5 months of age. It was contended by the State that the defendant and another youth, Billy Joe Pearce, committed rape by force on the person of one Ila Curry, the wife of an Army Lieutenant, stationed at Fort Sill, Oklahoma.

The evidence briefly stated is as follows: Mrs. Curry testified that on August 26, 1943, about 3 P. M., she had laid down on her bed at her home at Lawton, Oklahoma, to rest a few minutes; that she was fully dressed except that she had removed her shoes; that she was awakened by someone on top of her with his hand over her mouth; that this person was Billy Joe Pearce; that he said, "Don't move your head, don't scream, or don't look at us or we'll kill you;" that she was pinned down to where she could not move; that Pearce committed an act of sexual intercourse with her at that time; that she jerked his hand off of her mouth and moved her head and saw the defendant, Frazee, standing by the bed. That the defendant Frazee was present during all of the time that Pearce was on her; that after Pearce had finished the act, that the defendant Frazee likewise committed an act of sexual intercourse with her; that during the time Frazee was committing the act, Pearce kept admonishing her not to scream nor look at their faces nor say anything or they would kill her; that all of the threats were made by Pearce; that after the assault had been committed and as the boys were leaving the front door, she jumped out of the bedroom window and, while still barefooted, ran to the next-door neighbor's house; that Mrs. Weist, the neighbor, was not at home, but that she used the telephone and called her at Mr. Weist's place of business. That after the police arrived, it was discovered that the two youths had made their entrance into the house by using a wire to unlatch a screen and entering through a window.

Mrs. Harry Weist testified that she lived next door to the house occupied by Lt. and Mrs. Curry; that about 4 o'clock P.M., on August 26, 1943, while the witness was at her husband's place of business, Mrs. Curry called and told her that two men had come in her house and raped her. That she went home immediately and found Mrs. Curry crying and in a hysterical condition; the witness then related what Mrs. Curry told her concerning the alleged rape, which story was substantially the same as that related by the prosecutrix in her testimony.

A. B. Boling, Chief of Police, of the City of Lawton, testified that on August 26, 1943, he was called to the home of Lt.Curry. When he got there, around 4 P.M., Mrs. Curry was very nervous and highly excited. He searched the premises and found the back screen by the kitchen had been opened and was loose; that he obtained a description of the boys who were alleged to have made the attack and arrested them about four hours later in the City of Lawton.

The defendant, Donald Frazee, testified in his own behalf that he was 16 years of age on March 8, 1943; that he weighed about 112 or 113 pounds; that he had previously enlisted in the Navy, but had been discharged when they found out his age that on August 26, he and Billy Joe Pearce had been to Fort Sill, looking for a job; that as they were returning home they passed the Curry house and upon looking in saw a woman laying on the bed; that the Pearce boy said, "I imagine if she is asleep, her purse is around there some place;" that the Pearce boy tried the different windows and the back door, but that they were locked; that Pearce then took a piece of wire, stuck it through the screen and unlocked the screen; that Pearce climbed in the window, unlocked the back door and defendant went into the house with Pearce. The defendant stated that he found the purse, opened it and took $6 from the purse; that while he was going through the purse, Pearce went into the next room; that he went to the room where Pearce had gone and saw Pearce lifting a table upon which an electric fan had been placed; that Mrs. Curry woke up and said "Hey," and defendant ran out of the room; that when he got to the door, he looked around to see if Pearce was coming; that he waited at the door two or three minutes and then went back to the room to see what was detaining Pearce; that he saw the prosecutrix laying across the bed with Pearce on top of her with his hand on the side of her face; that he sat down in the southwest corner of the room and waited while Billy Joe Pearce...