Looper v. State

Decision Date22 May 1963
Docket NumberNo. A-13354,A-13354
Citation381 P.2d 1018
PartiesTroy Samuel LOOPER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Syllabus by the Court

1. The general rule that proof of other offenses is inadmissible unless a part of the res gestae does not apply to offenses involving illicit sexual intercourse, and evidence of other acts between the same parties is admissible, not as affording proof of a substantial offense in themselves, but as corroborating other evidence of the act charged, and as tending to show the relations existing between the parties upon the probability of the commission of the crime charged.

2. In a prosecution for incest, evidence tending to establish acts of incest at times other than, and prior to, that relied on for the conviction is admissible, as indicating continuousness of the illicit relation and as tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction.

3. In an incest case conviction may be had upon the uncorroborated testimony of the prosecutrix, where her testimony is not inherently improbable, conflicting, inconsistent or contradictory.

4. The results of lie detector tests were not admissible in evidence for the reason that no foundation was laid by showing that such tests had attained scientific and psychological accuracy, and general recognition, and its operators were capable of definite and certain interpretation.

5. Where the evidence is conflicting and that offered by the State reasonably tends to sustain the judgment and sentence, the Court of Criminal Appeals will not substitute its judgment for that of the jury.

6. A known ground of disqualification of a juror before or during the progress of the trial is waived by withholding it, or failing or declining to raise the objection until after verdict.

7. As a general rule the finding of the trial court upon an issue of fact, arising upon affidavits and evidence adduced on a motion for new trial, will not be disturbed, where the evidence reasonably tends to support such finding.

Appeal from the District Court of Haskell County; George Windham, Judge.

Troy Samuel Looper was convicted of the crime of incest, and appeals. Affirmed.

Harold B. Dane, Stigler, for plaintiff in error.

Charles Nesbitt, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.

JOHNSON, Judge.

The plaintiff in error, Troy Samuel Looper, who will hereinafter be referred to as defendant, was charged in the district court of Haskell County with the crime of incest. He was tried before a jury, who found him guilty and assessed his punishment at ten years in the penitentiary, and the case is now here on appeal.

For reversal defendant sets out three specifications of error, which will be discussed in the order given.

The first contention is that the verdict is contrary to law and the evidence. This necessitates a statement of the facts, shocking and revolting as they are.

On May 4, 1962 the county attorney of Haskell County filed an information in the district court, charging the defendant with having committed the crime of incest in and upon one Rosie Lee Looper, the daughter of the defendant, 'by having sexual intercourse with her over a period of some seven years, beginning the 1st day of May, 1955 and has continued frequently since that time, the last act of sexual intercourse was committed on the 16th day of April, 1962, and that the said Rosie Lee Looper has had born to her three children during this period of time, and that the said Troy Samuel Looper is the father of all said children', etc.

A demurrer was filed to this information on July 18, 1962, which was sustained on July 20, and an amended information filed the same day, charging the defendant with having committed the crime of incest on April 16, 1962 by means of putting the said Rosie Lee Looper in fear, etc.

The case proceeded to trial on October 31, 1962 before a jury, and they returned a verdict of guilty, fixing the penalty at ten years in the state penitentiary. Motion for new trial was filed and overruled; judgment and sentence entered on November 21, 1962, and appeal has been perfected to this Court.

The State produced three witnesses, Rosie Lee Looper, the prosecutrix, Bertha Looper, her mother, and her brother Thomas Dean Looper, age 20 years.

The defendant testified and offered eleven witnesses: a daughter, two brothers, a sister-in-law, a half sister and a niece, and some character witnesses.

The prosecutrix testified that she was 22 years of age on the date of the trial, and that she had married on October 18, 1962. She stated that this course of conduct on the part of her father started when she was very small, 'I would judge very near 12, and I had rheumatic faver. I was 12 when I had it.' She testified that she had three little boys, the oldest one 7 years of age, and that she had given birth to a little girl, who died when two days old. She stated that the defendant was the father of all four of the children.

Rosie Lee testified that her father made her go to the Welfare Department to seek aid for the support of the children, and told her to give the names of some boys in the neighborhood as the fathers of the children, and she admitted that she did this. She said that her father kept her with him practically all of the time and never permitted her to have dates, and that she had never had a date with a boy until after her father was placed in jail; that she had never gone out with any of the boys she had named as the fathers of her children. That when she went to the Welfare to ask for aid for the fourth child, she gave the name of the father as Troy Looper, and testified: 'I told them the other part was a lie and he was the father of all of them.' The woman in the Welfare office took her to the county attorney and complaint was made.

The mother testified that the defendant slept in the room with the prosecutrix and her three children; that there were two beds in the room; that there was no lock or latch on the door to the room and when the defendant would go in the room to retire he would wire the door closed; that she could hear what was going on in the room. The mother was corroborated by the boy Thomas.

The defendant testified in his own behalf, and denied that he was the father of Rosie Lee's children, or that he had ever had intercourse with his daughter.

Counsel for defendant states: 'The first question involved in this appeal pertains to a failure of the State's evidence to prove that a crime was committed as charged in the amended information. It was necessary that the state prove a specific violation on a specific date, as charged in the information, and this the evidence fails to show.' Defendant cites no law in support of this contention.

In support of his contention that the verdict of the jury is contrary to the law and the evidence, defendant states that the prosecuting witness testified that she talked to the Welfare Department and the County Attorney on April 16, and signed the complaint on that date, returned to her home and had an act of intercourse with the defendant that night. She testified:

'Q You have alleged in your petition that on the 16th day of April, 1962, that Troy Samuel Looper had intercourse with you? A Yes, the night before Roland Smith come and got him the next morning. Q That is the way you remember the date? You came in my office the next day and signed the complaint? Did that happen, Rosie Lee? A I had done signed the complaint, and then before the law had time to come--before--I done had another intercourse with him.'

Then on cross examination:

'Q You say that you talked to the county attorney and the Welfare Department about that and then you went home and on the night of the 16th, Monday night before he was arrested the next day, you had intercourse with him again? A Yes. Q What time of the day or night was that? A It was always in the after hours of the night when he thinks everybody is asleep. He lay there and cussed until one or two o'clock.'

Rosie Lee's mother testified on cross examination:

'Q Now when it was obvious when he was going in the room, you say you would hear them in the room? A That's right. I have heard them in the room. The night before they picked him up and brought him up here and put him in jail, he cussed until midnight because she wouldn't.'

We are inclined to agree with counsel for defendant that 'it may be considered 'splitting hairs' to claim that if incest were committed by the defendant, that it was committed an hour or two after the time alleged in the information.' Defendant contends that the State failed to prove a specific violation on a specific date, as charged in the information.

In Pruett v. State, 35...

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