Little v. State

• Decision Date: 03 January 1945
• Docket Number: A-10302.
• Citation: 154 P.2d 772,79 Okla.Crim. 285
• Parties: LITTLE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

154 P.2d 772

79 Okla.Crim. 285

LITTLE v. STATE.

No. A-10302.

Court of Criminal Appeals of Oklahoma

Jan. 3, 1945

Appeal from District Court, Carter County; Ben T. Williams, Judge.

Orville Little was convicted of assault with intent to commit rape and he appeals.

Modified and as modified affirmed.

Syllabus by the Court.

1.The credibility of witnesses and weight and value to be given their testimony in a criminal case is within the exclusive province of the jury to determine.

2.A verdict in a criminal case will not be set aside where evidence is conflicting and that on part of state is such that, if believed, a verdict of guilty would result.

3.Before final submission of a case in a criminal prosecution, jurors are presumed to have performed their duty in accordance with their oath, and that presumption is not overcome by proof that they were permitted to separate during an adjournment, but it must be affirmatively shown by a defendant that by reason of the separation he was denied a fair and impartial trial, or that his substantial rights were prejudiced.

4.When a defendant takes the witness stand, the prosecution has the right to cross-examine him with the same latitude as any other witness.Under the statute, 12 O.S.1941 § 381, he may be interrogated concerning other convictions for crime.

5.The scope of the cross-examination of a witness is largely a matter of discretion with the trial court.

6.While County Attorney may interrogate defendant concerning other convictions for crime for the purpose of affecting his credibility, the trial court should not allow the examination to be enlarged by asking the details of the crime in which conviction was sustained, as such examination might cause jury to place undue emphasis on former conviction of accused and thus cause them to convict mainly because of bad reputation of the accused.

7.It is the duty of the County Attorney in his argument to the jury to confine himself to the facts as shown in the evidence.He has the right to draw his deductions and conclusions, and unless the argument is such that deprives a defendant of his substantial rights, or are such that would arouse the passion and prejudice of the jury to the extent that they would be swayed from arriving at a just verdict the judgment and sentence will not be set aside on appeal.

8.Where trial court admonishes jury to disregard statement of County Attorney in closing argument that "any man that would go out and rape a woman is below the level of a dog," said statement and admonition of the court is considered with reference to the evidence and held not so grossly improper as to warrant a reversal of the judgment of conviction.

9.A leading question is one which suggests to the witness the answer desired.

10.Permitting leading questions is ordinarily a matter which rests in the discretion of the court and to justify reversal it must be shown that the court abused its discretion.

11.While the jury is deliberating upon its verdict, it is the duty of the trial judge to remain in the county where the case is on trial until a verdict is returned or the jury discharged.

12.Where forms of verdict, the instructions of the court, and documentary evidence are withdrawn from the jury and they are directed to retire for the night, the trial court did not err in going to his home in an adjoining county to sleep where record discloses that he was present in the courtroom at the time the jury reappeared for the purpose of receiving the instructions and resuming their deliberation upon the case as the presence of the trial judge was not essential during such adjournment.

13.Where jury finds defendant guilty but leaves punishment to the court, this court will examine record to see whether punishment imposed is reasonably supported by the record.

14.Record examined and found that ends of justice require modification of sentence of four years imprisonment in State Penitentiary for crime of assault with intent to commit rape to a fine of $500 and costs, where evidence shows that prosecutrix, a married woman, admittedly approached defendant, a stranger to her, and solicited him to take her to a dance in an adjoining city, that they went to adjoining city to dance tavern and remained until 1:30 a.m., at which time alleged attack occurred, and prosecutrix later signed statement in presence of her husband that she desired the prosecution to be dismissed because "the affair was as much my fault as his."

Sam Y. Colby, of Madill, and Champion & Fischl, of Ardmore, for plaintiff in error.

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

JONES Presiding Judge.

The defendant, Orville Little, was charged by indictment presented and filed by a grand jury of Carter County, with the crime of rape in the first degree, was tried, convicted of the included offense of assault with intent to commit rape, with the punishment left to the court.The trial court thereupon sentenced the defendant to serve a term of four years imprisonment in the State Penitentiary and he has appealed.

This is the second appeal involving this case.In a former appeal, we reversed the case for a new trial because of the error of the court in refusing to admit in evidence a written statement made by the prosecutrix.Little v. State,72 Okl.Cr. 273, 115 P.2d 266.The facts surrounding this alleged crime are set forth in detail in said opinion and they will not be herein again related.Reference is hereby made to said former opinion for a detailed statement of said alleged crime.

It is first contended that the verdict is not supported by sufficient competent evidence to sustain the conviction.The testimony of the prosecutrix, which was partially corroborated by the owner of the tavern and his employee, especially concerning her physical appearance immediately after the alleged assault are sufficient to require the Court to submit the case to the jury for their consideration.Being sufficient for this purpose, the jury had a right to believe the testimony of the prosecutrix and disbelieve that of the defendant and his witnesses.Some of the statements of the prosecutrix to this court appear highly improbable, but since a jury of disinterested citizens have twice seen the witnesses and heard their testimony and by their verdict have held against the defendant, we do not feel that this court would be justified, under the law, in reversing the case because of the insufficiency of the evidence.The purpose of having a jury trial is to afford twelve men an opportunity to determine who among the witnesses are telling the truth, and when they have spoken upon a disputed question of fact, this court is bound by their judgment.

It is insisted that error was committed in permitting the jury to separate and go about on the various floors of the court house during a five-minute intermission at the commencement of the trial.The record discloses that after the jury had been duly selected and sworn to try the case and the County Attorney and counsel for the defendant had each made their opening statement to the jury, that the County Attorney asked for a five-minute recess before the State commenced presenting their evidence.During this five-minute recess, the jury was allowed to separate under the usual admonition by the trial court not to talk to anybody about the case nor to talk about the case among themselves or form or express any opinion as to the guilt or innocence of the defendant.

After the court had reconvened, counsel for defendant moved the court to discharge the jury and to declare a mistrial because the jury separated during the intermission.The State contended that counsel for defendant had agreed to the separation of the jury, but counsel for defendant answered by stating that it was a fundamental right of the defendant in a capital case to have the jury remain together under charge of a sworn bailiff and that they had no power to waive this fundamental right on behalf of the accused.

After the motion for mistrial was presented, the record discloses the following proceedings:

"By the Court: Gentlemen of the Jury, the Court has been trying lawsuits now for several years, and I have permitted you to separate, just a while ago, under the admonition that you were not to talk to anybody about this case or allow anybody to talk to you about the case or talk among yourselves about the case, or form or express an opinion as to the guilt or innocence of the defendant in this case, and now an objection has been made to the Court permitting you to separate, which calls on the Court to ask you this question: Did any of you permit anybody to speak to you about this case, or did any of you speak among yourselves about this case, or did any of you speak to anybody else about the case, or did anyone form or express an opinion as to the guilt or innocence of the defendant during the five or seven minutes recess that you just had?(Whereupon, the jury nodded it's head in a negative manner.)

"By the Court: Did any of you?(Whereupon, the jurors again nodded in the negative.)

"By the Court: All right, I will over-rule your motion."

There was no objection made at the time that the jury was allowed to separate but the question was presented after court reconvened by the presentation of the motion for a mistrial.

The question as to whether it is error to allow the jury to separate during the progress of the trial has been before this court for consideration in many cases.In one of the latest cases, Wilcox v. State,69 Okl.Cr. 1, 99 P.2d 531, 536(a capital case), the subject was fully discussed.In the body of that opinion, it is stated:

"This court has had occasion many times to

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