Marshall v. Territory

• Decision Date: 29 March 1909
• Citation: 101 P. 139,2 Okla.Crim. 136,1909 OK CR 43
• Parties: MARSHALL v. TERRITORY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

101 P. 139

2 Okla.Crim. 136, 1909 OK CR 43

MARSHALL v. TERRITORY.

Court of Criminal Appeals of Oklahoma

March 29, 1909

Syllabus by the Court.

After a person is indicted, present sanity of such defendant is presumed to exist until it is called in question from a reputable source, on a sufficient and specific declaration to the contrary, or from observation by the court the defendant's present condition is such as to call in question his sanity, whereupon it becomes the duty of the court to impanel a jury to pass on the sanity of the defendant; and the jury, and not the court, should determine this question.

[Ed Note.-For other cases, see Criminal Law, Dec. Dig. § 625 ^[*]]

The inquiry to be submitted to a jury, in a proceeding under section 5661, Wilson's Rev. & Ann. St. Okl. 1903, is Whether the accused is mentally competent to make a rational defense, and it is not whether he is able to distinguish between right and wrong.

[Ed Note.-For other cases, see Criminal Law, Dec. Dig. § 625. ^[*]]

It is immaterial how or in what manner the question of present sanity is presented to the court pending trial of a defendant under indictment, whether it is by application for a continuance, motion for new trial, motion in arrest of judgment, by ex parte affidavit, or declaration of bystanders, or the court of its own motion. All that is required is that the court shall make a record that a doubt arises as to the sanity of the defendant, whereupon an order for impaneling a jury to determine the issue is imperative.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 625. ^[*]]

If there exists in the mind of the court a doubt as to the sanity of the defendant, as expressed in the statute, means if the court has been advised from a reputable source-that is, if a statement is made to the court by credible person, or persons, under oath that the defendant is insane-a doubt is raised. While there is a judicial discretion left to the court to determine whether there exists in the mind of the court a doubt, nevertheless such discretion should not be arbitrarily exercised, and its positive declaration and statement, as above indicated, that the defendant is insane necessarily presents a condition calling for investigation. The court may look to the source of information, the motive, opportunity, etc., of the party making it, but if the court denies the inquiry by a jury, it must do so under circumstances excluding all doubt of the truthfulness of the declaration that the defendant is insane.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 625. ^[*]]

Where a defendant is upon trial on the charge of having sexual intercourse with a female, not the wife of the defendant, who is over the age of 16 and under the age of 18, and of previous chaste and virtuous character, the burden is upon the prosecution to prove: First, that the act of sexual intercourse was accomplished by the defendant either with or without the consent of the female; second, that the female was over the age of 16 years and under the age of 18 at the time the act of such sexual intercourse was accomplished; third, that the female was of previous chaste and virtuous character. A "chaste female" is one that has never had sexual intercourse-who yet retains her virginity. This condition should exist. A "virtuous female" is one who has not committed an act of sexual intercourse unlawfully-out of wedlock, and voluntarily.

[Ed. Note.-For other cases, see Rape, Cent. Dig. §§ 46, 47; Dec. Dig. §§ 4, 36. ^[*]

For other definitions, see Words and Phrases, vol. 2, p. 1092; vol. 8, p. 7329.]

The "character" of the female mentioned in the statute is that condition actually existing, contradistinguished from a character by reputation. Was the female in fact chaste and virtuous? There is no presumption in law that she was so chaste and virtuous arising in favor of the state, because in the plain language of the statute, unless she is of such previous chaste and virtuous character, the offense has not been committed, therefore the indictment must allege, and the prosecution must prove, such character beyond a reasonable doubt; it being a necessary element of the offense.

[Ed. Note.-For other cases, see Rape, Cent. Dig. §§ 46, 47; Dec. Dig. § 36. ^[*]

For other definitions, see Words and Phrases, vol. 2, pp. 1061-1063.]

The character of the female that is put in issue is not that character that she holds by reason of general reputation. The female's actual chaste and virtuous state or condition is her shield and protection, and this should be so because she may be falsely accused, as many men and women are in this day. That a false accusation should license the libertine to take advantage of a chaste and virtuous female would be revolting. Such a law would fall short of being righteous and just, and put womankind at the mercy of the scandal mongers and character assassins.

[Ed. Note.-For other cases, see Rape, Dec. Dig. § 4. ^[*]]

In a trial of rape such as is under consideration in this case, the court should instruct the jury directly and specifically what, under the law, constitutes a previous chaste and virtuous character of the female under consideration, and thereupon submit the facts for the determination of the jury as to whether the actual character required did exist previous to and at the time of the act complained of.

[Ed. Note.-For other cases, see Rape, Dec. Dig. § 59. ^[*]]

The issue being the chastity and virtuous character of the prosecutrix at the time of the commission of the alleged offense, such issue may be supported by circumstantial evidence, as in any other case of a similar nature. The defendant also has the right to attack this character by any facts or circumstances which would indicate a want of chastity or virtue upon the part of the prosecutrix.

[Ed. Note.-For other cases, see Rape, Dec. Dig. § 40. ^[*]]

Appeal from District Court, Noble County.

C. A. Marshall was convicted of the rape of a female under 18 and over 16, of previous chaste and virtuous character, and he appeals. Reversed and remanded.

March 7, 1906, plaintiff in error was indicted by a grand jury of Noble county in the then territory of Oklahoma, for the crime of rape by having sexual intercourse with Miss Leota Barnard, she being at the time a female under the age of 18 years and over the age of 16 years, and of previous chaste and virtuous character. The act complained of is alleged to have been committed November 10, 1904, in Noble county. On January 2, 1907, upon a trial before a jury, defendant was convicted of the charge of rape, and sentenced to serve a term of 7 years in the penitentiary. The defendant duly excepted, and appealed the case, and the same is now before us for review. Hon. THOS. H. DOYLE, associate judge of this court, having been of counsel in this case, and being thereby disqualified as one of the judges of this court to hear and determine same, this fact having been duly certified to Governor Haskell, he thereupon appointed Hon. MARSHALL FULTON special judge of the Criminal Court of Appeals for the trial and determination of this cause. Mr. Fulton having duly qualified as special judge, the case was submitted to this court upon the briefs of both parties.

Doyle & Cress, for appellant.

Charles West, Atty. Gen., for appellee.

FULTON Special Judge

The statute under which this prosecution is had is as follows: "Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: First, where the female is under the age of sixteen years. Second, where the female is over the age of sixteen years, and under the age of eighteen, and of previous chaste and virtuous character." There are 14 assignments of error, the twelfth, thirteenth, and fourteenth of the errors assigned are to the effect and in substance: "Errors of law by the trial court in refusing to impanel a jury to determine the mental condition of plaintiff in error."

The statutes applicable to the points raised are St. Okl. 1893, p. 997, c. 68, art. 19, §§ 1-3 (Wilson's Rev. & Ann. St. 1903, §§ 5660, 5661, and 5662):

"Section 1. An act done by a person in a state of insanity cannot be punished as a public offense, nor can a person be tried or adjudged to punishment, or punished for a public offense, while he is insane."

"Sec. 2. When an indictment is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arises as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned, and returned for the term, or who may be summoned by direction of the court, to inquire into the fact."

"Sec. 3. The trial of the indictment or the pronouncing the judgment, as the case may be, must be suspended until the question of insanity is determined by the verdict of the jury."

The remaining part of this article provides for the method of procedure on the issues raised on the question of the insanity of the accused. The proceedings that were had on the subject were:

In the motion by defendant to arrest the judgment, being the fifth paragraph of that motion, wherein it is alleged "that the defendant at the time was an insane person; was such at and prior to his trial"-in support of this motion, is an affidavit by P. W. Cress, who appears to be one of the attorneys representing the defendant, a member of the bar of Noble county, and of the court where the case was tried wherein it is set forth that, in the opinion of the affiant, the defendant was an insane person, setting out in detail several matters of fact upon which the affiant bases his opinion or belief that defendant was then insane. Thereupon, on the same day, and at...