Kitchen v. State
| Decision Date | 04 June 1937 |
| Docket Number | A-9274. |
| Citation | 69 P.2d 411,61 Okla.Crim. 435 |
| Parties | KITCHEN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. In a prosecution for rape, evidence held not sufficient to support verdict and judgment of conviction.
2. In a prosecution for rape, penetration to some extent must be proved beyond a reasonable doubt.
3. Emission without penetration is not sufficient to constitute the consummated crime of rape.
4. Rape committed by a male over 18 years of age upon a female under the age of 14 years is rape in the first degree. Section 2518 (21 Okl.St.Ann. § 1114).
5. Insanity, though superinduced by excessive and long-continued indulgence in alcoholic liquors and known as "delirium tremens," or "mania a potu," renders a person so afflicted irresponsible for his acts, if it be of such a character as to deprive him of the mental capacity to distinguish between right and wrong, as applied to the particular act, whether he be under the influence of liquor at the time of the commission of the act or not; but, to do so, his affliction must be settled or fixed insanity, not a mere fit of drunkenness. A person, not previously laboring under such disease or affliction, who voluntarily becomes intoxicated to such an extent and for such a period of time as to cause unconsciousness of his acts, is not irresponsible under the law for the acts done by him while in such mental condition.
Appeal from District Court, Okmulgee County; Arthur Cochran, Judge.
M. T Kitchen was convicted of rape in the first degree, and he appeals.
Reversed and remanded.
Appellant M. T. Kitchen, was convicted of rape in the first degree and was sentenced to serve a term of 40 years in the state penitentiary. The crime is charged to have been committed in Okmulgee county on March 6, 1936.
It appears that appellant, a white man, was 39 years of age at the time the crime was alleged to have been committed and had lived in Okmulgee for more than 25 years; was married and the father of four children. The little girl, Nellie Mae Herndon colored, was but 7 years of age at the time of the trial, and she was not examined as a witness. The Herndon family lived in that part of the city of Okmulgee, on the east side, known as the negro district.
Several assignments of error question the sufficiency of the evidence to sustain the verdict.
The testimony on the part of the State is in substance as follows: Sam Culley and his wife, colored, each testified that they saw the little girl on North Miami avenue, during the noon hour, walking towards the Attic School, when a white man driving a car south on the street stopped, opened the door, and the little girl ran up and jumped in the car; then he shut the door and went south.
Mabel Smith, colored, testified that she lived at 1012 North Miami; that along between 12 and 1 o'clock she saw this little girl walking towards the schoolhouse, and a man driving a car stopped and asked her where Chicago street was; then he open the car door, handed her a little white paper bag, told her to get in, when she did he drove on south.
Vianna Herndon, the child's mother, testified that she is the mother of nine children, including Nellie Mae, who was seven years old on June 15, 1936; that she had not seen her husband for five or six years; that he just went away; that at that time she worked for Mrs. Ingrams, and had not been home for several days; that the first time she saw Nellie Mae that day was at the courthouse, about 2 o'clock; that on advice from the sheriff she took her to Dr. Guess, a colored man, and had her examined, then they went to Dr. Carnell, a white doctor, and he examined her little girl; that Dr. Guess did not see her little girl any more after that.
The principal witness for the State, Tom Berry, deputy sheriff, testified that during the noon hour he received information of this occurrence and drove to the Attic School, in the east part of Okmulgee, met some colored people there, then drove around several blocks to Sixth street, which is Main street, went east, then turned south and drove out in the vicinity of the country club, and in the woods east of the county club found M. T. Kitchen and this Herndon girl. That E. J. Holly, deputy sheriff, was with him; that they walked up to a Ford sedan; the door on the right-hand side was open, the front seat was pulled forwards, and the defendant had this negro girl down in the back seat; her dress was up above her waist, and her panties were torn; his trousers were down and he was lying on top of her; his underwear was open and his privates out, but he could not tell whether or not they were on her. The little girl got out and tried to run away, but he caught her and put her in his car. Mr. Holly put the defendant in their car and they brought them to the sheriff's office; that when they were taking him to their car the defendant said: "Boys, you can't do this to me, I am an ex-service man and got a job; let me pay you off and don't take me into town." That the defendant had been drinking; that they drove back to get the little girl's mother and brought her to the courthouse; then he took the little girl and her mother to the office of Dr. J. E. Guess, a colored doctor, and he examined her.
E. J. Holly testified that he went with Mr. Beery to a school in the colored section and from there to the country club looking for a car described as a two-door Ford coach; there they found the car they were looking for. Mr. Berry went to the right side of the car and he went to the left side. The door on the right side was open and the front seat was turned forward. This little girl was in the back seat of the car, and the defendant was down over her; her clothes were up around her waist and her panties looked like they were torn. His pants were down on his boots; he had on heavy underwear, unbuttoned in front, and his privates were out; the little girl had a small paper sack in her hand; that the defendant was drinking, but he would not consider him drunk; that he knew what he was doing; that he went back from the courthouse to the car and found some stains on the floorboard and the fenders.
Dr. J. E. Guess, colored, testified that he was duly licensed to practice medicine under the laws of the state; that on the 5th day of March, the little girl was brought to his office by her mother and he made an examination; "that he found a little smegma about the parts;" that he took a smear from the vaginal orifice and put it under the microscope and examined it.
He further testified:
"Q. What did you find? A. According to my judgment, I found the spermatozoa. I wasn't satisfied with that examination and I took it to Doctor Isham, and he, in my presence examined it.
Q. What kind of instrument did you use to obtain that smear? A. I used a dressing forceps.
Q. Was that smear a discharge from a male organ? A. That was my judgment."
On cross-examination he was asked:
He further answered that he had been convicted, on his plea of guilty, of writing narcotic prescriptions and served the sentence in the county jail.
Dr. Robert M. Isham testified that he operated a chemical laboratory; that Dr. Guess brought a smear to him last spring some time and asked him to stain it for him, and he put it under a microscope; that when he found out that he was from the county attorney's office he did not further investigate it; that Dr. Guess look at it while it was under the microscope.
On cross-examination he stated that he could not testify that there was spermatozoa in it.
Dr. M. D. Carnell, the last witness for the State, testified that he was a physician and surgeon; that knowing the history of the case, he made an examination of the little girl, Nellie Mae Herndon, that afternoon; that he saw no laceration or bruises, or any injury of the parts, and no enlargement of the vagina, and therefore took it for granted there had not been any entrance; that he took a smear from the vagina and made a test; that he put the smear under the microscope, but did not find any spermatozoa at all; that spermatozoa is a definite germ, a seed from the male testicle.
On cross-examination he stated that he found no indication or evidence whatever of any penetration.
At the close of the evidence for the State, the defendant demurred to the evidence and moved the court to instruct the jury to return a verdict of not guilty, for the reason the evidence was insufficient to warrant a conviction.
On the part of the defense, Mrs. Kitchen, wife of the defendant, testified that they had been married fourteen years and had four children; that her husband left home on that day a little after 11 o'clock; he had a dollar and she gave him 50 cents to buy groceries; that when she next saw him that day about 4 o'clock at the county jail he was very drunk and could not talk to her; that he had been sick for about two weeks before that day; that when her husband drank very much liquor he would not know what he was doing; that he never missed a day's work when he was well.
Seven or eight witnesses, men and women, testified that they knew the general reputation of the defendant in the city of Okmulgee for a period of from seven to seventeen years, and each testified that the defendant's general reputation as a moral, upright, and law-abiding citizen was good.
The defendant testified as a witness in his own behalf that he had resided in Okmulgee for about twenty-six years, was married, and for the past seven years employed by the Texas Pipe Line...
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