McManus v. State
| Decision Date | 07 March 1931 |
| Docket Number | A--7424. |
| Parties | McMANUS et al. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied April 18, 1931.
Syllabus by the Court.
Application for continuance on account of absent witness is addressed to trial court's discretion, and judgment will not be reversed, unless abuse of discretion is shown; denial of continuance held not abuse of discretion, where defendants failed to show diligence in procuring witness.
An application for a continuance on account of the absence of a witness is addressed to the sound discretion of the trial court, and, unless an abuse of discretion is shown, the judgment will not be reversed.
Separate acts of intercourse accomplished by different persons with female are ordinarily separate offenses requiring election.
Rape is not a continuous offense, and, where separate acts of intercourse constituting a rape are accomplished by different persons with a female, ordinarily such acts are separate offenses, and, where different acts are proven upon which a conviction might be based, there must be an election of which particular act will be relied upon to sustain a conviction.
Where several persons pursuant to common design and acting together committed rape upon female, such persons could be jointly convicted as for single crime, without requiring state to elect.
Where several persons pursuant to common design and purpose and all present and acting together by force and violence commit a rape upon a female, and by a continuous uninterrupted use of force and violence continue until all of the participants have had sexual intercourse with the female, such acts constitute a single crime, and no election of an intercourse of any particular participant is essential, and all the persons so participating may be jointly charged and convicted as and for a single crime.
Statute prohibiting conviction for rape by person under 18 did not apply where there was no evidence that act was committed with female's consent (Comp. St. 1921, § 1835).
The provisions of section 1835, Comp. Stat. 1921, that "*** Nor can any person be convicted of rape on account of an act of sexual intercourse with a female over the age of fourteen years, with her consent, unless such person was over the age of eighteen years at the time of such act, ***" is a matter of defense to the crime of statutory rape. Where there is no claim nor evidence that the act was committed with the consent of the female, the statute does not apply.
Appeal from District Court, Kiowa County; E. L. Mitchell, Judge.
Obel McManus and others were convicted of rape, and they appeal.
Affirmed.
George W. Martin, of Gotebo, and Blanton, Osborn & Curtis, of Pauls Valley, for plaintiffs in error.
J Berry King, Atty. Gen., and Edward Crossland, Asst. Atty Gen., for the State.
The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Kiowa county on a charge of rape, and defendants Pitts, Tidmore, and McManus were sentenced to serve a term of 25 years in the penitentiary defendants Brumley and the two Wards were each sentenced to serve a term of 20 years in the penitentiary.
Briefly stated, the testimony for the state is about as follows: Faye Pipkin, who resided with her father near Mountain View, was taken to a church service by one Jester. While there, Brumley told her not to return home with Jester as some boys were going to beat him up. She then asked Tidmore to take her home. Before they started home, McManus called Tidmore to the rear of the car and had a conversation with him. Tidmore then left with her in his car and a short distance from town, near a gravel pit, he cut off his engine and the car rolled back to the railroad track. Another car was following them with the other defendants and here a difficulty, apparently a sham, ensued between McManus and Tidmore. McManus and Brumley pulled the girl out of the car and advised her to run. She went up the bank some sixty feet from the car, and, the difficulty having ended, Tidmore and McManus took her up the railroad track about three hundred feet and informed her of their intentions. There they held her and each defendant had sexual intercourse with her, two of them twice. The entire transaction was continuous and accomplished by force. Tidmore then took prosecutrix home and she immediately notified her father, who attempted to seize Tidmore, but he fled. The father then took prosecutrix to Mountain View and notified the officers, and all the defendants, were apprehended that night. The girl was examined by a physician, who testified her condition showed recent excessive intercourse; that her privates were swollen and the blood appeared about to burst out. The defense was alibi for all the defendants, except Tidmore. They denied that they were at the place claimed by prosecutrix or knew anything of the alleged crime. Tidmore admitted taking the girl home, but denied any act of intercourse. We deem it unnecessary to recite any further details.
Among the contentions made is error in overruling the application for a continuance. The application sets out that Claude Lewis would testify that on the morning after the alleged offense he had a conversation with prosecutrix in which she said, in substance, that she told her father of the claimed offense in order to placate him. That he scolded and threatened to beat her. That she did not expect him to have the boys arrested and her statement was not true. A sub poena was issued for this witness November 20. It was returned "not found" November 24. The trial was on December 10. During this interval no diligence to procure the witness was made. The application states that the information concerning the witness was from relatives in Garvin county, his usual place of residence, who expected him to return at any time, but no sub poena to that county was issued. It does not appear that there is any likelihood of his attendance at the next term of the court and no one appeared to know the witness' whereabouts. To entitle a defendant to a continuance on the ground of an absent witness he must have exercised diligence to procure the witness in the first instance. There was no error in overruling the application.
Complaint is made that the court committed fundamental error in his instructions, particularly in Nos. 6, 9, and 10. No. 6 correctly states that all persons concerned in the commission of a crime, whether they directly commit the act or only aid and abet, are principals. Nos. 9 and 10, in substance, tell the jury that, if defendants or any of them, by force and violence overcoming the resistance of the prosecutrix, did rape her or did aid and abet any of the other defendants in the commission of such crime, then the jury should find such defendants committed the crime or, aiding and abetting in its commission, guilty as charged.
The argument is that under the evidence eight different acts of intercourse were proven, and that each is a separate crime both as to the perpetrator and to any other of the defendants who aided and abetted in its commission, and, there having been no election of the particular act on which the state relied, the defendants were tried for more than one offense.
It has been said in substance many times by this court that a defendant may be tried for only one offense at a time, and where there is evidence tending to prove two or more distinct offenses, more than one of which might support a verdict of guilty, the state is required to elect the particular act upon which it will rely for a conviction. This is necessary for the reason that a defendant has a constitutional right to be put on trial for a single offense and for the further reason that he has a right to a verdict in which all the jurors concur upon the same criminal act or transaction. Gracy v. State, 13 Okl. Cr. 643, 166 P. 442; Williams v. State, 16 Okl. Cr. 54,...
To continue reading
Request your trial