Miller v. State

• Decision Date: 26 August 1938
• Docket Number: A-9501.
• Citation: 82 P.2d 317,65 Okla.Crim. 26
• Parties: MILLER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

82 P.2d 317

65 Okla.Crim. 26

MILLER v. STATE.

No. A-9501.

Court of Criminal Appeals of Oklahoma

August 26, 1938

Syllabus by the Court.

1. In a prosecution for rape, evidence held not sufficient to support verdict and judgment of conviction.

2. In a prosecution for rape, penetration to some extent must be proved beyond a reasonable doubt.

3. Emission without penetration is not sufficient to constitute the consummated crime of rape.

4. Rape committed by a male over 18 years of age upon a female under the age of 14 years is rape in the first degree. Section 2518, St.1931, 21 Okl.St.Ann. § 1114.

Appeal from District Court, Roger Mills County; T. R. Wise, Judge.

W. D (Bill) Miller was convicted of rape in the first degree, and he appeals.

Reversed.

J Scott Vincent, of Cheyenne, for plaintiff in error.

Mac Q Williamson, Atty. Gen., for the State.

DAVENPORT Presiding Judge.

The plaintiff in error was by information charged in the trial court with the crime of rape in the first degree; was tried, convicted, and sentenced to the state penitentiary for a term of fifteen years. From the judgment and sentence W. D. (Bill) Miller, the defendant in the trial court, has appealed, and will in this opinion be referred to as the defendant.

The testimony on behalf of the state in substance is as follows: Ferrell Wickham, the injured party, testified I am eight years old; am in the fourth grade in school; I live with my mother and father Mr. and Mrs. Wickham. On or about the 11th day of June, 1937, I was visiting my sister Mrs. Whitfield; my sister has two daughters, Joyce Lee and Virgie; Joyce is six years old; I went down to my sister's home some time before noon on the 11th of June, 1937; W. D., or Bill Miller came down to my sisters some time after dinner; he came down on horseback and let us ride his horse; Joyce Lee, Leonard and I rode the horse and went down to the barn and shop; the next time I saw Mr. Miller after he went to the house was down at the shop; when we went to the shop the first time he did not do anything, then when we went back the next time he took Joyce Lee and I off the horse, he did not take Leonard off, Bill told Leonard to ride down there by the river, and he did. After we got off the horse we went into the shed. Roy's car was in the shed on the north side of the blacksmith shop; it was closed in on all four sides, the car shed was not closed in; we went in the shed by the car. Mr. Whitfield's house is southeast of the blacksmith shop and shed, you can see the top of the Whitfield house from the shop. There was no one present except Joyce Lee, Bill Miller and myself. After we got in there between the car and the blacksmith shop Bill Miller pulled us up on his lap and played with us; he was sitting on the running board of the car.

"Q. Do you mean Ferrell he played with your legs? A. Yes.

Q. Did he play with your private parts? A. Yes.

Q. What clothes did you have on at the time Ferrell? A. Just had on our panties and dress.

Q. Did he remove your panties? A. Yes.

Q. Tell the jury what happened. A. After that he told us to stand on the running board of the car, then he pulled my panties down and put his private part to my private parts.

Q. Now Ferrell by him you mean Bill Miller? A. Yes.

Q. Did he make any penetration then? A. He told us not to tell.

Q. I mean did his private organ penetrate into your privates? A. Yes.

Q. And after that did he do Joyce Lee the same way? A. Yes.

Counsel for the defendant moved the court to strike that question in regard to Joyce Lee as being wholly prejudicial to the rights of the defendant. The motion was denied and counsel excepted.

Q. Joyce Lee there is one other question-I mean Ferrell too-at the time Bill Miller put his private parts to yours did he get any secretion on you? A. Yes.

Q. Whereabouts on you was it? A. Right about here (indicating).

Q. Now after that did the defendant Bill Miller say anything to you about telling it or not telling it? A. Yes sir, he told us not to tell, if we wouldn't he would give us a dime.

Q. Did he give you the dime? A. Yes."

In substance the witness further stated I remained at my sister's until the following day, when I was taken home by my brother-in-law and sister; my mother went with them on to Cheyenne and my mother returned home about four o'clock in the afternoon, and immediately after she returned from Cheyenne I told her what Miller had done to me in the shed down at my sister's. I did not talk to Mr. Whitfield or my sister about what had happened at the shed. I slept with the Whitfield children that night in my petticoat; Leonard is five, and Joyce Lee six. I went home the next morning; when I got home mother and my thirteen year old sister was there; we live about four or five miles from where Mr. Whitfield lives; I played with the children down there at my home the next day; I told my thirteen year old sister what Miller had done some time after dinner. I do not have any idea what I told her; I told my mother just what I am telling here; I could walk just like I always did, my body was not injured at all. At the preliminary trial in Judge Crane's court I testified that I was not sore.

"Q. Do you know what penetration is, you don't do you? A. No.

Q. You don't understand what the word means? A. No sir.

Q. Do you know what secretion means? A. Yes, it means did he get any wet on me.

Q. Now did you testify to that in Judge Cranes court? A. I did not unless you asked about it.

Q. Do you remember now whether you told or whether you did not? A. Whether I told you?

Q. Told about the secretion? A. I know I didn't unless you all asked me.

Q. Who told you young lady what secretion was? A. I think Mr. Bevins did?

Q. Understand now there is nothing wrong about Mr. Bevins telling you that, that is all right, he explained to you what secretion was? A. He did the other day, he didn't the other time.

Q. I understand but since then he has? A. Yes.

Q. He did not tell you what penetration meant? A. No sir.

Q. Now then, have you ever at any time done that with little boys? A. No sir.

Q. And do you claim Bill Miller did what you said he did was the first time you had ever been done that way? A. Yes.

Q. And you want to tell this jury you were not sore in any way? A. No sir.

Q. You were not? A. No sir.

Q. Did you ever tell your dad or your brother-in-law about what your testimony would be before the preliminary or before you was in Judge Crane's court? A. No sir.

Q. You never did? A. No sir.

Q. Now Ferrell, at the same time that the county attorney and the other people told you what secretion was did they tell you what your private parts were? A. Yes.

Q. Now at any time when you were down at the shed you didn't see Millers private parts did you? A. No sir.

Q. You did not cry did you? A. No sir.

Q. And as far as your feelings were concerned you felt perfectly normal, and went to the house with the other little girl? A. Yes, I went to the house."

Mrs. Maggie Wickham stated I am the mother of Ferrell Wickham; on the 11th day of June, 1937, Ferrell was at my daughter's, Mrs. Whitfields; Ferrell stayed all that day and did not get home until the next morning; I went to Cheyenne with Mr. and Mrs. Whitfield that morning and we did not get back until about five o'clock; we left for Cheyenne about five minutes after Ferrell came home; Ferrell remained at home with the other children; I was not with Ferrell by herself until after I came home from Cheyenne; I went in the bedroom to undress and Ferrell came in and says, "mother I want to tell you what happened while I was over at Lilly's," that is my daughter's name, and I says what; and she told me about Miller mistreating her and my little granddaughter; Mr. and Mrs. Whitfield had not left for home and I called my daughter and told her to come here, and she says "come on out to the car," and I says, "no come in here" and she came in and I told her and she went on home.

On cross examination witness stated Roy and Lilly Whitfield is my son-in-law and daughter; Ferrell told me what Miller had done about five minutes after I returned from Cheyenne; after she told me I questioned her as to where she was and who was with her and all about it. I made an examination of her in a way; I did not ask her whether or not she was sore; I did not take her to a doctor that day; I do not know whether it was two or three weeks after that before I went to the doctor. If Dr. Stephenson says it was the third of July, that might be right. The reason I did not go sooner I did not deem it necessary. The county attorney and the sheriff came out to see me, I believe it was Mr. Redden and Mr. Bevins; they did not say anything to me about taking her to a doctor; I don't know whether she was sore or hurt, I just taken her because I thought it was best. I could not be positive about what time it was I went to the county attorneys office, the reason I did not go earlier to report it there were different things, sickness for one thing. I don't know whether it was the 26th of July or not.

Roy Whitfield testifying on behalf of the state stated Joyce Lee Whitfield is my daughter. On June 11th, 1937, Ferrell Wickham was at my place; Bill Miller came to my place about twelve-thirty in the afternoon; he lived at the Hawthorne place about two months. On June 11th, 1937, I was living in a little shack facing east, there was a shed and car shed a little ways north west from the house, the building was out of sight from the house; the little shed building had a door on the east with the car shed attached to the shed with no sides excepting where it joined on the shed; my car was in the shed on June 11th, 1937. Bill Miller came to the house and wanted my wife to fix a...