McKinnon v. State, A-12323

• Decision Date: 18 July 1956
• Docket Number: No. A-12323,A-12323
• Citation: 299 P.2d 535
• Parties: Taylor R. McKINNON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 535

299 P.2d 535

Taylor R. McKINNON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12323.

Criminal Court of Appeals of Oklahoma.

July 18, 1956.

Syllabus by the Court

1. To entitle a defendant to successfully challenge a panel of jurors, the burden is upon the defendant to show that the wrong complained of is such as to have caused the defendant to suffer material prejudice.

2. In the trial of a criminal case, either party may request that the witnesses be placed under the rule; but whether the rule be invoked is a matter within the sound discretion of the court.

3. It is within the trial court's discretion to permit one or more witnesses to remain in the court room contrary to the rule, excluding other witnesses.

4. It is improper for the county attorney to repeatedly ask incompetent questions and to state his personal opinions.

5. Where there is sufficient evidence reasonably tending to support the same, the jury's finding will not be reversed.

Appeal from the District Court of Jefferson County; Arthur J. Marmaduke, Judge.

The plaintiff in error, Taylor R. McKinnon, was convicted of the crime of assault with intent to commit rape, sentenced to confinement in the state penitentiary for a period of five years and a fine of $500. Modified to confinement for a period of four years and otherwise affirmed.

Alvin C. Bruce, Ardmore, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

Plaintiff in error, Taylor R. McKinnon, defendant below, was charged by information in the District Court of Jefferson County, Oklahoma, with the crime of attempted rape, 21 O.S.1951 § 42, allegedly committed on or about July 5, 1955, in said county and state. He was tried by a jury, convicted of the included crime of assault with intent to commit rape, 21 O.S.1951 § 681, and the jury, being unable to agree on the penalty, left the same to the trial court which fixed the punishment at five years in the state penitentiary and a fine of $500. Judgment and sentence were entered accordingly, from which this appeal has been perfected.

The record, herein, discloses that the defendant asserted he had been coon hunting early on the morning of July 5, 1955, in the neighborhood of the Julian Davis home, and was unable to start his automobile. Julian Davis was leaving home to go to his work as a route man for a bakery. The defendant said he was unable to start his automobile and asked Davis to give him a push. This he did, and the defendant drove down the highway, apparently leaving the Davis home, and Davis proceeded to his work. After the defendant was assured Davis was gone and was a safe distance away, the defendant returned to the Davis home, knocked on the door, and called to Bobby Ruth Davis, wife of Julian Davis. It was early in the morning and she was still asleep, but his call awakened her. She threw on a kimono and went to the door and asked what he wanted. He stated that he wanted a match with which to light a cigarette. She got him a match and thereafter he asked for a drink of water. She got for him the drink of water and he asked her to cook his breakfast for him. She told him to set the glass down on the outside, and when she opened the door, he grabbed her and the assault complained of ensued. During the assault with intent to commit rape, he threw her on the floor and attempted, by use of force and violence, to overcome her power to resist. During the assault she hit him over the forehead with an ashtray, cutting a gash in his head. She grabbed his hand and proceeded to bite a large piece out of the fleshy part of it which was found on the floor, preserved, and offered in evidence. During the assault she also scratched him on his body and about the face. She related that she prayed for strength to overcome his attempt and in desperation she grabbed him by his privates and exerted great pressure on his testicles causing him great bodily pain prompting him to thereupon cease the assault and retreat.

The defendant's defense was that they drank some corn whiskey highballs and she went berserk. He contended that he had had relations with her since she was in high school. In this connection she related that he informed her before the assault that he had always wanted her and now he was going to have her. The defendant's explanation of the scratches and the gash on his head was that night he had had a fight with two men whom he did know and that the scratches he sustained were the result of that altercation.

The medical proof, herein, supports Bobby Ruth Davis' contention that assault with intent to commit rape had been committed upon her as evidenced by bruises upon her body, particularly around her legs and the fact that she apparently sustained a fractured rib. When she appeared in the doctor's office, she was extremely nervous and her elbows were quite red as though considerable pressure had been exerted upon them. Furthermore, the doctor said her left wrist was considerably bruised and there was tenderness on the inner aspects of her thighs.

The defendant admitted on cross-examination that he had had relations with numerous other women. The evidence was ample from which the jury might well conclude the defendant was guilty of the crime of which he stood charged. It has been repeatedly held until it is now axiomatic that the findings of fact are the exclusive province of the jury and where there is sufficient evidence reasonably tending to support the same, the jury's finding will not be reversed, on appeal. Sadler v. State, 84 Okl.Cr. 97, 179 P.2d 479; Dodson v. State, Okl.Cr., 284 P.2d 437; Stuart v. State, Okl.Cr., 280 P.2d 755.

The defendant first complains that the trial court erred in overruling his demurrer to the information. Apparently, this contention is based upon the proposition that the information fails to allege the defendant's intent. This contention is wholly without merit, in view of the fact that the information clearly alleges intent to attempt to rape, ravish, and carnally know the prosecutrix or have sexual intercourse with her. It is apparent therefore, that the case of Temple v. State, 71 Okl.Cr. 301, 111 P.2d 524, relied on by the defendant, is not in point with the defendant's contention.

The second contention of the defendant is that the trial court erred in refusing to grant a continuance, the defendant then having had two continuances, and discharge the jury, the jury panel in question having been subpoenaed to try this case, on three different occasions from September 12 to October 24, 1955. The defendant further complains that the county attorney predicted, in the county clerk's office, the defendant would fall off a drilling rig to hurt himself to keep from going to trial in this case. This the defendant did do and allegedly hurt his back, which condition formed the basis for the requested continuance. It is urged that though no jurors were present, it is not unlikely that some of them heard of it. The defendant urges for the foregoing reasons the trial court abused its discretion in not granting him motion to discharge the jury panel.

The foregoing premise is a double-barreled attack on the jury panel. The speculative nature of this complaint is apparent. To entitle a defendant to successfully challenge a panel of jurors, the burden is upon the defendant to show that the wrong complained of is such as to have caused the defendant to suffer material prejudice. Taylor v. State, 95 Okl.Cr. 98, 240 P.2d 803; Henderson v. State, 95 Okl.Cr. 342, 246 P.2d 393. Here, the only evidence in support of the statement charged to the county attorney clearly established that when the statement was made, no jurors were present. On both the foregoing issues there is no evidence whatsoever, of...