Morris v. State

• Decision Date: 26 April 1913
• Parties: MORRIS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

131 P. 731

9 Okla.Crim. 241, 1913 OK CR 104

MORRIS v. STATE.

Court of Criminal Appeals of Oklahoma

April 26, 1913

Syllabus by the Court.

An act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under the age of 16 years is rape in the second degree, whether such act is accomplished by means of force or with consent.

The general rule that proof of other offenses is inadmissible unless a part of the res gestæ does not apply to offenses involving sexual intercourse; and evidence of other acts is admissible to show the relation and familiarity of the parties, and as tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction.

In a prosecution for statutory rape evidence is admissible of sexual acts between the prosecutrix and the defendant prior to and subsequent to the one charged and relied upon for a conviction, as indicating continuousness of the illicit relation. In so far as the case of Cecil v Territory, 16 Okl. 197, 82 P. 654, 8 Ann. Cas. 457 conflicts herewith, it is overruled.

A defendant cannot introduce evidence of his own self-serving acts and declarations not constituting a part of the res gestæ, and he is not bound to make an effort to show that some other person is guilty of the crime for which he stands charged, at the peril of furnishing by his failure to act or by his silence, evidence against himself when on trial upon the charge, and the admission of such evidence over his objection, constitutes reversible error.

The state, in a criminal prosecution, does not seek a conviction unless the evidence shows guilt beyond a reasonable doubt. Nor will it permit its prosecuting officer to use any unfair means in the trial, or illegal argument in his address to the jury, to the prejudice of the defendant.

While it is the law that a conviction for rape may be sustained upon the uncorroborated evidence of the prosecutrix, it is nevertheless equally well settled that, when such evidence is inherently improbable and almost incredible, there must be corroboration by other evidence as to the principal facts to sustain a conviction.

Error from District Court, Greer County; G. A. Brown, Judge.

R. E L. Morris was convicted of statutory rape, and brings error. Reversed.

A. R Garrett, of Granite, for plaintiff in error.

Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE J.

Plaintiff in error, hereinafter referred to as the defendant, was, in the district court of Greer county, convicted under an information filed in said court May 9, 1910, the charging part of which is as follows: "On or about the 6th day of June, 1909, in the county of Greer, state of Oklahoma, one R. E. L. Morris, a male person, did then and there unlawfully and feloniously have, commit, and accomplish an act of sexual intercourse with Lola Morris, a female person, and did then and there carnally know and ravish the said Lola Morris; she (the said Lola Morris) being then and there under the age of 16 years and not the wife of the said R. E. L. Morris." The judgment and sentence of the court entered July 18, 1911, was that he serve a term of 50 years' imprisonment. To reverse the judgment, an appeal by case-made was perfected.

The facts and circumstances surrounding this case, as disclosed by the evidence, are as follows: The defendant, when 20 years of age, married a widow 31 years of age; she having four children at the time. They lived together in Mississippi, where they were married, for about eight years, and then separated. Three children were born of this marriage. About one year after the separation, the wife moved to Texas with the children. Between three and four years later, after some correspondence between the defendant and his wife regarding their children, he went to Texas and with their mother's consent took his two oldest daughters to Oklahoma and went to farming; his mother keeping house for him.

The conviction was had upon the uncorroborated testimony of the defendant's oldest daughter, Lola Morris, who testified, in substance, that she and her next younger sister went to live with her father and his mother in March, 1905, near Granite, Okl. That in June, 1905, they moved to Caddo county and lived with one of her father's brothers, and while there she and her sister used to sleep on a pallet on the floor in a room with their grandmother, and there her father had sexual intercourse with her the first time by coming to her pallet. That at that time she was 12 years of age. That he repeated the act three or four times a week while they were at his brothers'. That in a short time they moved to another place in Caddo county and lived there in a house of one room for about a year, and the defendant continued to have intercourse with her every night or two while they lived there. That they then moved back to Greer county, and in 1909 they lived near Reed. That the defendant continued to have intercourse with her off and on all the time while he was at home. That here they lived in a two-room house; the defendant and his mother had beds in one room, and she and her sister had a bed on the floor in the other room, where it was his habit to come and have intercourse with her. That on Sunday night, June 6, 1909, the time alleged in the information, he had intercourse with her, and as the result she became pregnant and gave birth to a child March 2, 1910. She was then asked whether or not the defendant continued to have sexual intercourse with her after the act on the first Sunday in June, 1909, and over the objection of the defendant answered: "A. Well, he continued on; he was not at home all the time, but once in a while he would be and when he was there it was every night or two. He was gone two weeks at a time, but never gone over two weeks at a time, and when he was there it was every night that he had intercourse with me up until the last part of August or the first of September." That her grandmother and sister had no knowledge of the defendant's improper relations with her. She further testified that along in October or November he tried in various ways to cause her to miscarry and gave her medicine to cause a miscarriage, and that he said "he didn't want any one to know that it was him;" and "he told me to tell that it was some one else; that I didn't know;" and "he told me to tell that I was out walking one evening, somewhere about dusk, and that a man passed by and stopped and had intercourse with me;" and "that this man came two or three nights after that to my bed in my room." That she told this story first to Mrs. Meade when she was confined, and afterwards to Mr. Henry, the county attorney, and to Sheriff Tittle. And also told the same story to the defendant's attorneys, and that Lawyer Morris said that, if her father was guilty, he would not defend him, and she told him her father was not guilty. That after her mother had been with her a month she first told the truth by making a statement at her uncle's, her mother's brother, in accordance with her testimony. She also stated that her father took her and her sister to Sunday school whenever he was at home. She further stated that she played dominoes with a boy about her own age while she was herding cows, and that there was a water hole near the house and the neighbors' boys would come up there to water their horses, and sometimes they would come to the well and to the house for a drink when her father was away from home. That there was one boy that wanted to take her buggy riding, but her father told her she could not go and he would not allow her to keep company with the boys or go driving with them, and she said, "I guess I can go with them when I am 16;" and he said, "I will see about it;" that she "thought a right smart of a boy down there, but he was not exactly a lover;" his name was Will Alexander. That she went back to Texas with her mother and there married D. W. Baldock.

Ethel Tolliver, a half-sister, testified that Lola Morris would be 18 years of age August 1, 1911.

Pauline Morris testified that she was 14 years old January 21, 1909, and had lived with her sister, father, and grandmother for several years. She was then asked and permitted to answer over the defendant's objection: "Did your father ever make any effort to find out who was the father of that child, as far as you know? A. No, sir."

On behalf of the defendant, Sheriff Tittle testified that he heard Mr. Morris, an attorney, ask Lola Morris if her father was the father of the child and she answered that he was not. That, when the defendant's attorneys insisted that she tell the truth of the matter, "she said she first met a man out from the house and afterwards he had been at the house." That at the time of this trial the defendant had been in his custody in the jail for ten months.

J. W. Morris, a brother of the defendant, testified that after her confinement he heard her tell the defendant's mother that there were three persons she had improper relations with; two of their names she did not know, and the other was a young man named "Knight," and he had left the country, but she did not know who was the father of her child.

The testimony of Mrs. J. W. Morris was substantially to the same effect.

Mrs. Meade testified that she was with Lola Morris during her confinement and questioned her about who was the father of the child and she answered that she did not know.

W. E Meade testified that in 1909 he lived one-half mile from the defendant; that there was a locust grove of about two acres near the defendant's house; that Mr. Pressley farmed the land around the house and he had two sons, one grown, the other about 16 years old; that he frequently saw young men go to the...