Landon v. State

• Decision Date: 28 July 1943
• Docket Number: A--10333.
• Parties: LANDON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

140 P.2d 242

77 Okla.Crim. 190

LANDON v. STATE.

No. A--10333.

Court of Criminal Appeals of Oklahoma

July 28, 1943

Syllabus by the Court.

1. The general rule is that when a defendant is put upon trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to show, that he has committed another crime, wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible.

2. The general rule that proof of other offenses is inadmissible does not apply to offenses involving other acts of sexual intercourse between the same parties; and evidence of other acts between the same parties is admissible to show the relation and familiarity of the parties, and as tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction.

3. In a prosecution for statutory rape, evidence is admissible of sexual acts between the prosecutrix and defendant prior to and subsequent to the one charged and relied upon for a conviction, as indicating continuousness of the illicit relation.

4. It is error to admit in evidence, over objection of defendant alleged acts of sexual intercourse committed with parties other than prosecutrix where they are distinct and unrelated offenses and not so connected with the offense charged in the information as to be a part of the res gestae.

5. Record examined and held: trial court committed reversible error in admitting in evidence sexual acts allegedly committed by defendant and parties other than prosecuting witness which were wholly disconnected with the act charged in the information.

Appeal from District Court, Osage County; Hugh C. Jones, Judge.

Dan Landon was convicted of first degree rape, and he appeals.

Reversed and remanded.

Carl C Wever, of Pawhuska, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and J. Walker Field, Asst. Atty Gen., for defendant in error.

JONES Presiding Judge.

The defendant, Dan Landon, was charged in the District Court of Osage County with the crime of rape in the first degree, was tried, convicted and sentenced to serve forty years in the State Penitentiary and has appealed.

The information filed against the defendant alleged that he committed the crime of rape upon his daughter, Dorothy Landon, on May 24, 1939, at a time when she was thirteen years of age.

The defendant has filed a lengthy brief in support of many different assignments of error. No answer brief has been filed on behalf of the state.

It is insisted that the court erred in admitting certain evidence over the objection and exception of defendant. This assignment of error is directed chiefly at the testimony of the former wife of defendant concerning an alleged assault upon an eight year old daughter of defendant, approximately two and one-half years after the date of the alleged offense upon which the information herein is based.

After the institution of these charges against defendant, his wife obtained a divorce. She was the first witness called by the state to testify against defendant. She testified at length concerning an incident that happened about 2 o'clock, A.M., on November 9, 1941, at the home of herself and defendant. She related that defendant came home after midnight. That he lighted the lamp and turned the radio up loud. That in a little while she became suspicious of defendant's actions and tiptoed to a door leading into the front room and there saw defendant in a large chair with his eight year old daughter in front of him "working over her." She gives a lurid description of what she saw on that occasion and when asked to state what she did she said that she told defendant "he should be ashamed." That they then went into the bedroom. That after they had gone to bed an argument started between herself and defendant and defendant caught her by the throat and said he would choke her to death. That she screamed and two of her other girls came running over to the bed and tried to help her. That defendant struck both of these girls with his fists and knocked them down and slapped them repeatedly. That the defendant tried to find a gun stating that he had been wanting to kill all of them for a long time and if he could find a gun he was going to do it right then. The testimony of this witness was extended at considerable length and was devoted chiefly to this occurrence on the night of November 9, 1941.

It should be borne in mind that defendant was accused of the crime of rape committed upon Dorothy Landon, age 13, on May 24, 1939. The eight year old daughter involved in the alleged assault about which the wife testified is another person than the one upon whom the crime of rape is alleged to have been committed. It is not contended by the state that defendant raped the eight year old girl upon the night in question, but all of this evidence concerning the happenings on November 9, 1941, was admitted in evidence over the objection of defendant that they were wholly disconnected with the offense upon which he was standing trial. This evidence was introduced by the state before there was ever any testimony to show that defendant had committed a rape upon Dorothy Landon.

Defendant also complains that the court erred in admitting evidence by La Etta Landon, another daughter, that defendant, at different times, had sexual intercourse with her, and further that the court erred in admitting evidence of other acts of sexual intercourse with Dorothy Landon besides the one specifically named in the information.

The general rule is that when a defendant is put upon trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to show, that he has committed another crime wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible. Nemecek v. State, 72 Okl.Cr. 195, 114 P.2d 492, 135 A.L.R....