Jackson v. State

• Decision Date: 21 July 1943
• Docket Number: A-10197.
• Citation: 140 P.2d 606,77 Okla.Crim. 160
• Parties: JACKSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

140 P.2d 606

77 Okla.Crim. 160

JACKSON v. STATE.

No. A-10197.

Court of Criminal Appeals of Oklahoma

July 21, 1943

Syllabus by the Court.

1. In the trial of cases where one is charged with the crime of rape, we have often held:

(a) That one may be convicted on the uncorroborated testimony of the prosecutrix.

(b) That where her evidence is uncertain, contradictory, or improbable, or she has been impeached, that it will be required that her testimony be corroborated.

(c) That this Court in cases of this character will review the whole record to see whether the evidence as a whole is sufficient to sustain the judgment and sentence to the end that justice may prevail, and injustice be avoided.

2. A motion for continuance by reason of the absence of a witness rests within the sound discretion of the trial court, and a case will not be reversed by reason of the exercise of this discretion unless the same has been abused.

3. Under Oklahoma Statutes Annotated, 1941, Title 12, Section 667, which provides for the continuance of a case when a member of the Legislature or Senate is attorney of record for a defendant during the session of the Legislature, "or within thirty days" after an adjournment, held, that under the circumstances of the instant case the granting of a continuance was within the sound discretion of the trial court, and this discretion not having been abused, case will not be reversed.

4. One to whom complaint of alleged rape has been made may testify to making of complaint by prosecutrix and her condition and appearance at the time, but may not testify to prosecutrix' statements as to details of outrage. Tit. 21 O.S.A.1941, Sec. 1114.

5. A statement, if part of res gestae, is admissible, but if time is such as to give opportunity for fabrication or falsification, statement is inadmissible as part of "res gestae."

6. The admission of statements as part of res gestae is one of exceptions to general rule that hearsay evidence is inadmissible.

7. Declarations to become part of "res gestae" must accompany the act which they are supposed to characterize and must be voluntary and spontaneous and made at a time so near either prior or subsequent to the main act, as to exclude idea of deliberation or fabrication.

8. The rule has often been announced by this court in the construction of Oklahoma Statutes 1931, section 3206, Oklahoma Statutes Annotated 1941, Title 22, section 1068 that a case will not always be reversed because of "admission or rejection of evidence," unless "after an examination of the entire record" it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.

Appeal from District Court, Sequoyah County; E. A. Summers, Judge.

Andrew Jackson was convicted of rape in the first degree, and he appeals.

Affirmed.

Criminal Court of Appeals, on appeal from conviction of rape, will review whole record to see whether evidence as a whole is sufficient to sustain judgment and sentence, to the end that justice may prevail and injustice be avoided. 21 O.S.1941, § 11141.

Paul V. Carlile, of Sallisaw, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.

BAREFOOT Judge.

Defendant, Andrew Jackson, was charged in the District Court of Sequoyah County with the crime of rape in the first degree, was tried, convicted and sentenced to serve a term of fifteen years in the State Penitentiary, and has appealed.

It is first contended that the judgment and sentence is contrary to the law and the evidence, and that the court erred in refusing to sustain a demurrer to the evidence. This makes necessary a short review of the evidence and the law applicable thereto.

The charge against the defendant was that of rape by force of Ida Whitney, age thirty-three years, in Sequoyah County, on the night of November 21, 1940.

Prosecutrix had been divorced, and was the mother of four small boys, who were living with her near Sallisaw, in Sequoyah County. On the date charged, she went to the home of a neighbor, Mrs. Elsie Lowe, for the purpose of getting a dress pattern. While there she asked Mrs. Lowe if she would go with her to the home of her uncle, who lived in the country and was sick, if they could get "The Old Stove Man," to take them in his car, and Mrs. Lowe agreed that she would go. She told Mrs. Lowe if she saw "The Old Stove Man" to ask him to take them. She then went to the home of Mrs. Jackson, the wife of the brother of defendant, for the purpose of having the dress made. She returned to the home of Mrs. Lowe, and then to her own home, and sent two of her sons to see "The Old Stove Man" and get him to come to Mrs. Lowe's and get them. She returned to Mrs. Lowe's house, and just after dark Andrew Jackson, the defendant, came to the Lowe home, driving the car of Bill Williamson, who was known as "The Old Stove Man."

The evidence of prosecutrix, and of her son Jack Whitney and of Mrs. Lowe, was that defendant told them that Mr. Williamson could not come, but had sent him to take them to the uncle's in the country. That defendant said it would be necessary to go to a near-by store and get some gasoline, and that he would arrange the tools in the back of the car so that the children could ride there. Prosecutrix testified that he asked her to go with him for the gasoline, and said they would return in a few minutes and get Mrs. Lowe and her two children, and the children of prosecutrix. They secured the gasoline, but instead of returning to get Mrs. Lowe and the children, defendant, despite the protests of the prosecutrix, drove into the country and, by force overcoming her resistance, had intercourse with her. She testified that when defendant became unduly familiar with her, that she jumped from the car and started walking down the road. That he turned around and overtook her, and promised to take her to town, but that instead, he drug her to the side of the road and by the exercise of force and fear overcame her resistance and had intercourse with her.

Defendant admitted having intercourse with prosecutrix, but stated that it was voluntary on her part.

After the completion of the act, defendant drove with prosecutrix to Sallisaw, and they went to a restaurant. Food was ordered, but when the defendant went to the rear to wash his hands, the prosecutrix left the premises and contacted the officers, to whom she related the facts with reference to the assault that had been made upon her. Defendant was arrested the same night, and charges were filed against him.

Defendant admitted that he had been drinking during the day, and took two drinks from a bottle he had in the car just prior to the alleged offense. There is no evidence that prosecutrix had at any time drunk any liquor. Defendant also admitted that he had previously been convicted of the crime of burglary in Sequoyah County, and had served a term of twenty-one months in the State Penitentiary therefor.

The rules with reference to cases where one is charged with rape have been so fully discussed in cases recently decided by this Court that we deem it unnecessary to again review the many cases that have been decided. Some of these cases are: Weston v. State, 138 P.2d 553; Coppage v. State, 137 P.2d 797; McComas v. State, 131 P.2d 488; Duggins v. State, 135 P.2d 347; Gordon v. State, 131 P.2d 503; and Kilpatrick v. State, 128 P.2d 246 (none of which have yet been reported in the Oklahoma Criminal Reports); Williams v. State, 65 Okl.Cr. 336, 86 P.2d 1015; Williams v. State, 68 Okl.Cr. 348, 98 P.2d 937; Kitchen v. State, 61 Okl.Cr. 435, 69 P.2d 411; Kitchen v. State, 66 Okl.Cr. 423, 92 P.2d 860; and Kilpatrick v. State, 71 Okl.Cr. 129, 109 P.2d 516.

These cases review the early decisions and again state the rules that have been so well established: First, that one may be convicted on the uncorroborated testimony of the prosecutrix; second, that where her evidence is uncertain, contradictory or improbable, or she has been impeached, that it will be required that her testimony be corroborated; and third, that the Court will review the whole record in cases of this character to see whether the evidence as a whole is sufficient to sustain the judgment and sentence to the end that justice may prevail, and injustice be avoided. In other words, that a case of this character is an exception to the general rule that where there is any evidence to sustain the same, that the judgment and sentence will be upheld. This rule is sound in principle, because it gives to the court the right to correct an injustice, and at the same time to do justice, which is the true aim and purpose of the law. Weston v. State, supra; Sowers v. Territory, 6 Okl. 436, 50 P. 257.

Applying these rules to the evidence as revealed by the record in the instant case, we find that there is nothing which causes us to believe that the evidence of the prosecutrix in this case was untrue, unbelievable, contradictory, or that she was in any way impeached. Her testimony is corroborated by the evidence of a number of witnesses. It is unnecessary to lengthen this opinion by going into detail. The evidence of defendant is contradicted in a number of details, and by some of the witnesses whom he placed upon the witness stand. We therefore cannot say that the judgment and sentence is contrary to the law or the evidence.

It is next contended that the court erred in overruling the motion for continuance. This is based upon the absence of the witness Bill Williamson, "The Old Stove Man," and the fact that the attorney for defendant, the Hon. Paul V Carlile, was a member of the Legislature and that thirty days had...