Harmon v. Territory Oklahoma

• Decision Date: 11 February 1905
• Citation: 15 Okla. 147,79 P. 765,1905 OK 14
• Parties: JAMES HARMON v. THE TERRITORY OF OKLAHOMA.
• Court: Oklahoma Supreme Court

1905 OK 14

79 P. 765

15 Okla. 147

JAMES HARMON v. THE TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: February 11, 1905

Syllabus

¶1 1. EVIDENCE--Sufficiency of. Where a jury find the evidence sufficient and return a verdict of guilty, and the trial court denies a motion for a new trial, the supreme court will not set aside such verdict, unless, assuming to be true all that is testified to, the presumption of innocence is not overcome.

2. SAME-- Admissibility of. In a trial for the offense of rape any evidence tending to corroborate the evidence of the complaining witness, or to show an assault and the manner of its commission at the time and place charged in the indictment, is admissible, even though it show an assault upon another person at the same time.

3. SAME--Impeachment of Witness--Stenographer's Record. A witness may be impeached by showing that he has testified in another proceeding involving the same subject-matter, different from and inconsistent with his testimony sought to be impeached, and for such purpose the stenographer who took his testimony on the former occasion is a competent witness, and for the purpose of accuracy may refresh his memory from his long hand transcript of the evidence taken on such former occasion.

4. SAME-- Carbon Copy of Stenographer's Transcript. Where the stenographer's short hand notes of testimony have been by him transcribed in long hand, and at the time of so doing he makes duplicate carbon copies of the same, such duplicate carbon copies are not copies in the sense in which the word "copy" is ordinarily used, and the use of such a carbon copy by a stenographer testifying, from which to refresh his memory, is not error.

5. TRIAL-- Conduct of Counsel. Where counsel for the Territory in the trial of a criminal cause gives expression to inarticulate utterances expressive of contempt for an answer made by a witness, and during the trial of such cause denominates a witness as a "smart aleck" and refers to documents offered in evidence as having been prepared by a "shyster" or "jack-leg", such conduct deserves the immediate rebuke of the trial court, but does not necessarily constitute reversible error.

6. MEDICAL EXAMINATION. A medical examination of the prosecutrix is not indispensable to warrant a conviction for the crime of rape.

7. INSTRUCTIONS--Force and Resistance of Prosecutrix. It is not necessary for the court to instruct or caution the jury that "the charge of rape is easily made, hard to prove, and harder still to disprove." The court instructed the jury that they must be satisfied beyond a reasonable doubt "that the prosecuting witness resisted to her utmost capacity, and that her resistance was overcome by force and violence." That was all that was necessary.

Snyder & Clark, J.

W. Johnson, John W. Scothorn, and L. G. Pitman, for plaintiff in error.

P. C. Simons, Attorney General, for defendant in error.

STATEMENT OF FACTS.

At the November, 1902, term of the district court of Oklahoma county an indictment was returned by the grand jury charging the defendants, James Harmon and Ann Wynn, with the crime of rape, committed upon the person of Annie Patt, in said county, on the 26th day of January, 1903, which indictment was filed and returned February 23, 1903, and during the term aforesaid. On the 7th day of May, after a severance of trial had been granted, the defendant James Harmon gave notice of and filed his application for a change of venue in the trial of said cause, and afterwards, on the 11th day of May, 1903, such application for a change of venue, having been heard by the district court of Oklahoma county, an order was entered changing the venue in the trial of the cause from Oklahoma county to Pottawatomie county, and thereafter on the 30th day of November, 1903, said cause came on to be heard and was tried in the district court of Pottawatomie county.

From the trial of the case it appears that the prosecutrix, Annie Patt, twenty-two years of age, was born in Leowalden, Holland, where she resided until about two years before the date of the trial of this cause. At the time she left Holland with a sister and brother-in-law, she went direct by way of Amsterdam and New York to Nanpa in the state of Idaho, where she resided and worked on a farm a year, her mother and step-father having in the meantime left Holland, and come to Oklahoma City. The prosecutrix left Idaho and came to her mother in the city of Oklahoma, where she had resided about two weeks, working at the Windsor Hotel about one week of the time before the occurrence herein complained of. She had in the meantime learned to speak the English language, which to her was an unknown tongue prior to her coming to the United States. It appears from her testimony that in Holland it was a common and usual thing for people to go into beer gardens and beer drinking places, and drink there, and that on the night of the occurrence complained of (Sunday) an uncle by the name of Brower came to the Windsor Hotel for her and they together went to where her sister Lucy was working, and the three then went to a place designated as Charley's saloon, and there drank wine and beer, remaining approximately two hours, drinking three glasses of beer and a couple of glasses of wine, the wine and beer being brought to them in a little room by the uncle, except the first order, which was brought by a bartender. They then left as testified to by these girls for home, and having crossed the railroad track they came to a place where dancing was going on, and were solicited by the uncle to go in and see how the Americans dance, and after entering seated themselves upon a lounge. The proprietress, Annie Wynn, commonly known as Big Ann, brought them some beer in small glasses, which they said was very bitter and tasted unusual, the drinking of which made them sick, and they, the girls, asked the uncle to take them out of there, when, as testified to by the girls, a number of men then in the place took the uncle and pushed him out of the door locking it behind him, and then solicited the girls to go with them to the rooms of the house, which they refused to do. They were then seized by several men, one being the defendant in this case. Lucy was dragged up stairs to her defilement by two of the men, and the prosecutrix, Annie was by three others forced into a room down stairs and there defiled by each of them, she identifying the defendant positively as one of the men.

The story of the defilement of these girls after being taken, one to a room upstairs and one down, their resistance and cries to each other for help, is not fit for publication in detail. That they resisted to their utmost, that they called for help, is shown by the testimony of each of them.

Evidence was offered on behalf of the defendant by a railroad conductor and a brakeman, who that evening brought their train from Monett, Mo., to Oklahoma City, and put it up, after which they repaired to the premises of Big Ann, and were there when the girls Annie and Lucy and their uncle came. They deny that the uncle was thrown from the door and the girls locked in, and say that they did not see any force used in taking them or either of them up the stairway to the bed room, and did not hear any screams for help, or observe any resistance on the part of the girls.

Witnesses Jessup, Underwood and Cassidy testify that they left the theater in company that evening at about 10 or 11 o'clock and went to this place of Big Ann's and saw these Patt girls there, and saw them when they started out of the dance hall, and Cassidy says he observed them when they had reached the foot of the stair in the hall adjoining the dance hall, and each of these witnesses testify that they did not observe any resistance on the part of the girls or force used on the part of those accompanying them. These witnesses left the premises at this time.

The defendant, Harmon, testified in his own behalf to the effect that he and four others, McGuire, Woodson, Finn and Garrison, on the evening in question went to Big Ann's house of prostitution, and while there the girls, Annie and Lucy Patt and their uncle came into the dance hall. He testified that he saw the girls go up stairs with a number of other persons and went himself as far as the first landing but did not go up the stairs, and that he left the place about midnight; that the girls at the time he left were in the dance hall; that he had no intercourse with the prosecutrix, and offered no violence towards her; that he was himself a gambler by profession, and had been for a number of years, following no other vocation. He shows that the parties who went there with him were gamblers and bartenders, that he was acquainted with the several inmates of Big Ann's house, and was himself a frequenter of the several gambling houses of the city.

The testimony of the first witness on behalf of the defendant (Hoyt) is to the fact that he saw Lucy Patt up stairs at the house of Ann Wynn, lying on a bed with George Garrison, and also saw Annie Patt the prosecutrix in another room lying on the bed with another man, he did not know who, and that no force or violence was being used as to either, that they were not undressed, and that he heard no complaint or protestation from either of them; that he afterwards saw Annie and Lucy Patt quarreling with Garrison and others over the question as to whether they should receive two or five dollars, and were each demanding five dollars from the men they were talking to; that George Garrison was one of the men tendering two dollars which she refused and that five dollars was insisted upon.

One of these girls was between three and four o'clock in the morning found on the street by a policeman, wandering about in a half-dazed condition, and was by him taken? o the police station. The desk sergeant testified that she reached the police station apparently in an intoxicated condition, bare headed, her hair down, her...