Kitchen v. State
| Decision Date | 14 July 1939 |
| Docket Number | A-9457. |
| Citation | 92 P.2d 860,66 Okla.Crim. 423 |
| 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. Carnal knowledge of a female child under the age of 14 years whether accomplished with or without the consent of such female, is rape in the first degree.
2. On the trial of an information for rape of a female under the age of consent the defendant may be convicted of the included offense of attempt to commit rape, or of an assault with intent to rape.
3. To constitute attempt to commit rape on a female under the age of consent, the intent to know the child carnally must have existed in the mind of the defendant at the very time when he did the overt act, or acts, for there can be no attempt to commit a crime unless the intent to commit it existed at the time the attempt was made.
4. In the crime of attempt to commit rape on a female under the age of consent, the intent is the gist of the offense, and it is distinguishable from the offense of taking indecent liberties with the person of a female child made punishable by Penal Code, Sec. 1769, 21 Okl.St.Ann. § 22.
5. The corpus delicti, and every element of it, may be established by circumstantial evidence as well as by positive or direct evidence, if such circumstantial evidence produces in the minds of the jury conviction, to a moral certainty, of the existence of all the requisite facts and excludes every other reasonable hypothesis.
6. On a prosecution for attempt to commit rape on a female under the age of consent, an instruction that if the defendant "in such attempt did any act towards the commission of such crime", he would be guilty, was misleading, as leading the jury to infer that it would be sufficient if defendant did any improper act, and the court should have added to the sentence above quoted, "with the intent then and there to commit the crime of rape on said Nellie May Herndon."
7. The defendant had the right to have the jury instructed, that good character may create a reasonable doubt as to whether such person would commit the crime charged, where otherwise no doubt existed, and that proof of good character may lead the jury to disbelieve the testimony against the defendant no matter how conclusive such testimony may seem to be.
8. The inclusion in a verdict of recommendation that the defendant be not pardoned or paroled, held, improper and prejudicial.
9. Evidence considered, and held insufficient to sustain verdict finding defendant guilty of an attempt to commit the crime of rape in the first degree.
Appeal from District Court, Okmulgee County; Arthur Cochran, Judge.
M. T Kitchen was convicted of an attempt to commit rape, and he appeals.
Judgment reversed and cause remanded, with direction to dismiss.
Floyd Wheeler, of Okmulgee, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
M. T. Kitchen was tried, convicted and sentenced to imprisonment in the penitentiary for a term of ten years. This defendant has been twice tried. The judgment of conviction of rape in the first degree at the first trial was reversed by this court. 61 Okl.Cr. 435, 69 P.2d 411. At the second trial a judgment of conviction was entered October 18, 1937.
Omitting superfluous words in the information, it charges that in Okmulgee county, on the 6th day of March, 1936, the said M. T. Kitchen did unlawfully, wilfully and feloniously make an assault upon the person of Nellie Mae Herndon, with the felonious intent to rape and have sexual intercourse with her, and the said M. T. Kitchen did then and there unlawfully, feloniously and with force and violence, rape, ravish and have sexual intercourse with the said Nellie Mae Herndon, a female person under the age of 14 years and not the wife of the defendant.
The verdict, omitting formal parts, reads: "We, the jury, do upon our oaths find the defendant M. T. Kitchen, guilty of an attempt to commit rape in the first degree as charged in the information herein and fix his punishment therefor at ten years with a recommendation that he be not paroled or pardoned."
Counsel for the defendant present three grounds for the reversal of this judgment: Error in overruling the defendant's demurrer to the evidence; failure of the trial judge to follow the decision of this court on the first appeal in charging the jury and in refusing to give instructions requested; that the verdict of the jury is contrary to both the law and the evidence, and was the result of passion and prejudice against the defendant, and not the result of cool and deliberate judgment on the part of the jury.
The record shows that the same witnesses who testified on the part of the state and on the part of the defendant at the first trial, testified at the second trial. A substantial statement of their testimony is set forth in the former opinion of this court.
In addition to her testimony on the first trial, Mrs. Fay Kitchen, wife of the defendant, testified that she had two or three milk customers, including her mother, and sometimes the milk would spill on the floor of the car; that returning from the courthouse that evening in the car she noticed that the only spots on the floor of the car were the milk spots.
The victim of the alleged assault was a colored girl. She did not testify although she was over nine years of age at the time of the trial, and the record is silent as to why she was not called as a witness. It was admitted, however, that she made no complaint of any injury and told no one that the defendant had in any way assaulted or mistreated her, and there was no evidence of injury to her person.
At the close of the evidence for the state the defendant interposed a demurrer thereto, and moved for a directed verdict on the ground that the same was insufficient to show the commission of the offense charged, in that the evidence does not show or tend to show that there was any specific intent to commit the offense charged. Overruled. Exceptions.
It appears that the defendant had resided in and around Okmulgee for the past 27 years, was married and lived with his wife and four daughters, the oldest twelve and the youngest two. That he had never before been charged with any offense, either felony or misdemeanor that he was a World War veteran, and had been a citizen of good repute, and the state put in no evidence to rebut that; as to his previous good character, that he had been employed for the past seven years by the Texas Pipe Line Co., that for a few weeks prior to the date alleged he had been ill with influenza, and a part of the time confined to his bed; that whisky had been prescribed by his physician as a remedy for influenza. That on the date alleged he left home to go to the Texas Company yards on the east side of Okmulgee to get a post-hole digger, to use in fencing his chicken lot; that when he reached Muskogee Avenue, he stopped at a place to get some whisky. The fellow there gave him a sample drink, so he bought a pint, and told the fellow he wanted it for medicinal purposes. In the course of the conversation he took possibly two or three drinks, when he started to go the fellow said he only had another pint left and would take fifty cents for it. He took the pint, went out to his car and drove south on the avenue. That he did not remember turning off Muskogee Avenue; that he had no recollection as to where he went or what he did. That he did not remember the little girl or driving out to the country club, that the first thing he remembers was being here in the county jail; that he had drunk whisky a few times before and would not remember what he had done.
Amentia, temporary confusional insanity, sometimes the sequel of infectious fevers, was one of the defenses sought to be made.
This court has held repeatedly that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from passion or prejudice, or have been controlled in reaching their verdict by undue influence. However, it must appear that the jury have been properly instructed as to the law of the case; and where the instructions do not fully present all the material issues raised, the judgment of conviction will be set aside.
After a careful consideration of this case, both as to the law and the evidence, we are brought to the conclusion that at least two of the grounds relied upon for a reversal are well founded.
The Code of Criminal Procedure provides that: "The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense" Sec. 3097, 22 Okl.St.Ann. § 916.
An attempt to commit a crime is defined in Penal Code, Sec. 1822, 21 Okl.St.Ann. § 42.
We do not deem it necessary to consider the assignments of error predicated upon the instructions given and those refused further than to say that the court failed to properly instruct the jury on the law of attempt as defined by Sec. 1822, St.1931, 21 Okl.St.Ann. § 42.
One of the instructions the defendant requested is as follows: "You are further instructed that in a prosecution for assault with intent to rape, that the specific intent must be proved to your satisfaction beyond a reasonable doubt, and if you entertain a reasonable doubt as to the intent of the defendant, you cannot find him guilty of assault with intent to rape."
In instruction No. 16, the court said, if you believe beyond a reasonable doubt that the...
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