Oakes v. State

• Decision Date: 08 July 1918
• Docket Number: 104
• Citation: 205 S.W. 305,135 Ark. 221
• Parties: OAKES v. STATE
• Court: Arkansas Supreme Court

205 S.W. 305

135 Ark. 221

OAKES v. STATE

No. 104

Supreme Court of Arkansas

July 8, 1918

Appeal from Benton Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

W. N Ivie, for appellant.

1. The indictment is defective. It contains no date when the crime is alleged to have been committed. No date within the statutory period is alleged. 92 Ark. 413; 99 Id 126; 65 Id. 559; 110 Id. 170.

2. The promise of marriage was conditional on pregnancy. 113 Ark 520, 169 S.W. 341; 25 Ore. 172; 17 L. R. 151.

3. There was no corroboration of the prosecutrix's testimony as to the promise of marriage. 113 Ark. 520; 112 Ga. 871. No designated time for marriage was fixed, and the promise, if any, was conditional. 51 L. R. A. (N. S.), 809; 41 App. D. C. 359; 25 Ore. 172; 132 Mich. 58; 48 S.W. 192; 29 Tex.App. 454; 97 Mo. 668; 77 Ark. 16.

4. The court erred in its instructions to the jury. There was no evidence of an expressed or unconditional promise of marriage. 15 Ann. Cas. 221. Defendant's theory of the case was not properly presented by the instructions.

5. The venue was not proven.

6. The testimony of the attorney for the State was incompetent. The trial was not fair and impartial.

John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. The demurrer was properly overruled. It is not necessary to allege the date within which the crime was committed. 92 Ark. 413; 99 Id. 126; 110 Id. 170. Proof is sufficient.

2. The promise of marriage was sufficient. 113 Ark. 520.

3. Instruction No. 8, asked by appellant, was properly refused. There was no evidence upon which to base it. 102 Ark. 170; 88 Id. 269; 114 Id. 391.

4. The venue was sufficiently proven.

5. Requested instruction No. 3 was properly refused. The prosecutrix's testimony was corroborated. Defendant's letters were competent and corroborated her testimony. 77 Ark. 16.

6. Allowing Duty to testify was not error. Kirby's Digest, § 3142; 56 Ark. 381; 77 Id. 603; 90 Id. 135.

OPINION

WOOD, J.

Appellant was convicted of the crime of seduction and appeals. The indictment charged that, "The said George Oakes in the said county of Benton, in the State of Arkansas, on the day of , 191 , then and there being a single and unmarried man, unlawfully and feloniously did obtain carnal knowledge of one Myrtle Glass, a single and unmarried female, by virtue of false and feigned expressed promise of marriage previously made to her by the said George Oakes."

Appellant contends that the indictment is defective because it contains no date when the crime is alleged to have been committed. "Under the statute of this State, an allegation in the indictment concerning the time of the commission of the offense is immaterial except when the time is a material ingredient in the offense, but the State must allege and prove the commission of the offense within the statutory period of limitation." Kirby's Digest, § 2234. James v. State, 110 Ark. 170, 160 S.W. 1090. Counsel rely upon the above language to support his contention that the indictment must allege a date, within the statutory period of limitations when the offense was committed. The word "allege" as quoted seems to sustain counsel. But when this word is considered with reference to the issue for decision in that case and the cases cited to sustain the opinion, it is plain that the word "allege," in the connection used, is a lapsus pennae, or linguae. In James v. State, supra, it was alleged that the offense charged therein was committed on a certain day, which was stated, and the date specified was within the statutory period of limitations for prosecution of the offense charged. The defendant James admitted that he had given whiskey to the minor (which was the charge against him), but testified that the act had occurred more than a year prior to the indictment. The trial court instructed the jury that the burden was on the defendant to show that the act was committed more than one year prior to the finding of the indictment. We held that the instruction was erroneous and that the burden was on the State to prove that the offense was committed within the period of the statute bar for the prosecution of such offense. The issue was not before us as to whether it was essential for the indictment to allege the date of the offense so as to show that it was within the statutory period. The court did not mean to hold that such an allegation was essential to the validity of the indictment. Such holding was not necessary, not germane to the issue, and would "have been out of harmony with the cases cited in the opinion to support what was only intended to be decided. See Scoggins v. State, 32 Ark. 205; State v. Gill, 33 Ark. 129; Gill v. State, 38 Ark. 524; State v. Reed, 45 Ark. 333. Such holding would also have been in direct conflict with Grayson v. State, 92 Ark. 413, 123 S.W. 388, and Threadgill v. State, 99 Ark. 126, 137 S.W. 814, where we held that an indictment is not fatally defective and not demurrable, which alleges that the offense was committed "on the day of , 190 ."

If the court, in the case of James v. State, supra, had intended to overrule all these cases, it would have so stated in express terms. We conclude, therefore, that the use of the word "allege" in the opinion in James v. State, supra, was obiter and a mere inadvertence upon the part of the judge who prepared, as well as the judges who approved the opinion. Such inadvertence was but natural, since the court did not have for decision in that case an issue involving the above statute and for the moment did not have it in mind. But for the statute, it would be correct, generally, to say that the State must allege and prove that the offense was committed within the period of limitations for the prosecution of such offenses. What the court intended to decide in James v. State, supra, is correctly set forth in the syllabus, as follows: "In a criminal prosecution, the State must prove that the offense was committed within the period of the statute bar, or else that the running of the statute has been suspended."

Miss Myrtle Glass was about twenty-one years of age when she first met appellant in the winter of 1911. Her sister, Mrs. Field, resided at Grove, Oklahoma, and Miss Myrtle and her widowed mother lived with Mrs. Field. Appellant at that time was about twenty-three years of age. He then worked in an abstract office, but was a prospective student of the law at the University of Oklahoma, where he went in September, 1912. It was a four years course at the university. After they met, he went to see her regularly on Sunday and Wednesday nights. After two or three visits he asked her to kiss him and she refused, telling him that her mother had always told her not to kiss a man unless he was going to be her husband. He replied that he could not marry an Indian, that his parents objected to that. She told him she was an Indian. He then went away, and in a few days she received a letter from him asking permission to visit her again, which she granted. He came and told her he had changed his mind and thought of his future happiness in the end, and was willing to marry an Indian in spite of the objection of his parents. They then became engaged to be married as soon as he had finished school. She had a tract of land and it was understood that when he had finished school they would mortgage the land and then get married. He went to school from the fall of 1912 to the fall of 1915. She gave him financial assistance while he was in school when he made a plea that he needed it. During the summer vacation of the years 1912-13-14-15 they were frequently in each other's company. During the summers of 1912-13 and 1915 they made frequent pleasure drives together, some in Oklahoma and some in Arkansas. On one of these occasions he had sexual intercourse with her. He promised to marry her if she would submit, told her that if she loved him she would do this, and if she did not she did not care very much for him. He told her that nothing would happen, and if anything did happen he would marry her and nothing would be said about it, anyway. He told her he would marry her right away. Even if things did not happen, they were going to be married anyway. She yielded on that promise and had sexual intercourse with him, but would not have done so if he had not promised to marry her. This was the first act of sexual intercourse, and it occurred in Benton County, Arkansas, before the latter part of July, 1915. After that he had sexual intercourse with her in Arkansas and Oklahoma. She had never had sexual intercourse with any other. She became pregnant. Appellant was the father of her child.

Mrs. Field and Mrs. Glass testified that they overheard the conversation between the prosecutrix and appellant in 1912 when they were engaged to be married, and these witnesses fully corroborated the testimony of the prosecutrix as to the promise of marriage made at that time. The prosecutrix testified that the date of the marriage fixed by the promise made at that time (towit, "when he had finished school") had never been changed. Several letters that were sufficiently identified by the admission of appellant as his letters to the prosecutrix were introduced over the objection of appellant. These letters were written to prosecutrix both before and after the alleged first act of sexual intercourse, and tended to prove that a close and affectionate relation existed between them.

Appellant testified that there was never any promise of marriage. He admitted that he had sexual intercourse with the prosecutrix but denied that it occurred in Arkansas, and contends that, even if it did occur here and as stated by the prosecutrix, there was no corroboration of her...