Moulton v. State, A--15692
| Decision Date | 28 October 1970 |
| Docket Number | No. A--15692,A--15692 |
| Citation | 476 P.2d 366 |
| Parties | Will MOULTON, 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 |
Syllabus by the Court
1. The general rule in this state is that when a defendant is put upon trial for one offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone and the admission of evidence of other crimes, either prior or subsequent to the offense for which he is on trial is inadmissible. However, evidence of separate and similar offenses is admissible when it is material and proper to show (1) motive, (2) intent, (3) absence of mistake or accident, (4) identity of person charged with the commission of the crime for which an accused in put on trial, and (5) common scheme or plan embracing the two or more crimes so related to each other that proof of one tends to establish the other.
2. A matter assigned as error in the Motion for New Trial and in the Petition in Error, but not shown in the case made, will not be considered by this Court.
3. Where the information has not been challenged by Demurrer or Motion to Quash, and defendant pleads to the information and goes to trial, any objection to the sufficiency of the information should be overruled if by any intendment, inference or presumption, it can be sustained.
4. Where there is competent evidence in the record from which the jury could reasonably conclude the defendant was guilty as charged, the Court of Criminal Appeals will not interfere with the verdict even though there is a sharp conflict in the evidence and different inferences may be drawn therefrom, since it is the exclusive province of the jury to weigh the evidence and determine the facts.
5. Record examined and held that under circumstances defendant was not entitled to instruction on Assault and Battery.
An appeal from the District Court of Custer County; Charles M. Wilson, Judge.
Will Moulton was convicted of the crime of Attempted Rape; his punishment was fixed at ten years imprisonment, and he appeals. Affirmed.
Rudkin & Wright, for plaintiff in error.
G. T. Blankenship, Atty. Gen., Max A. Martin, Asst. Atty. Gen., for defendant in error.
Will Moulton, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Custer County, Oklahoma, with the crime of Attempted Rape; his punishment was set at ten years imprisonment; and a timely appeal has been perfected to this Court.
Briefly stated, the evidence revealed that the defendant came to the home of Patricia Barnett in Weatherford, Oklahoma, about 5:00 p.m. on May 13, 1969, inquiring about a former occupant of the house. She testified that he attempted to push her into a bedroom and she ran from the house screaming.
Laura Olds, age 17, who lived approximately one and one-half blocks from the Barnett residence, testified that at 5:20 p.m. on the day in question, she was walking to a meeting when the defendant called her by name and asked if she wanted a ride. She got into the car thinking she knew the defendant as the local basketball coach. The defendant asked if she would show him certain streets and subsequently drove to a location in the country. She got out of the car and was physically placed back into the car by the defendant. He attempted to kiss her, placed his hand on her breast and inserted his hand inside her culottes; that she resisted to the best of her ability and after approximately twenty minutes she was able to get out of the car. She started screaming and the defendant slapped her several times telling her to be quiet. He then returned to his car and she ran through various fields, through fences, to her boyfriend's house, which was in the vicinity.
Mrs. Jack Jones, the boyfriend's mother, observed Laura at approximately 6:00 p.m.; that she was very upset and her face, neck and shoulders were red. Laura asked Mrs. Jones to not tell her parents what had happened.
The mother, Mrs. Fred Olds, testified that Laura told her what had happened after the family had returned from a banquet that night. She described the physical injuries she observed. Dr. Huser examined Laura on May 15, 1969, and observed two bruises on her face, one bruise on a foot, an abrasion on her shoulder, and a cut on her leg.
The defendant testified that he was the wrestling coach at Geary, Oklahoma; that he went to the Barnett residence attempting to find a friend that had previously lived there. He was invited into the house by Mrs. Barnett and nothing unusual occurred therein. He admitted picking up Laura, who seemed more than willing to go riding; that she was sitting in the car in a provocative manner during the ride; that upon arrival in the country she became apprehensive that her parents might see them and asked him to return to town without her. He admitted kissing her one time and that he stopped when she turned her head. He acquiesced to her desires and returned home, leaving her at the location. Two character witnesses stated that the defendant had a good reputation for truth and veracity.
The defendant's first proposition alleges that the court erred in admitting testimony concerning another crime committed by the defendant. The general rule in this state is that when a defendant is put upon trial for one offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone and the admission of evidence of other crimes, either prior or subsequent to the offense for which he is on trial is inadmissible. However, evidence of separate and similar offenses is admissible when it is material and proper to show (1) motive, (2) intent, (3) absence of mistake or accident, (4) identity of person charged with the commission of the crime for which an accused is put on trial, and (5) common scheme or plan embracing the two or more crimes so related to each other that proof of one tends to establish the other. See Epperson v. State, Okl.Cr., 406 P.2d 1017; Parks v. State, Okl.Cr., 457 P.2d 818 and Turnbow v. State, Okl.Cr., 451 P.2d 387.
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