Pittman v. State

• Decision Date: 14 September 1912
• Citation: 126 P. 696,8 Okla.Crim. 58,1912 OK CR 375
• Parties: PITTMAN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

126 P. 696

8 Okla.Crim. 58, 1912 OK CR 375

PITTMAN v. STATE.

Court of Criminal Appeals of Oklahoma

September 14, 1912

Syllabus by the Court.

The offense of assault with intent to commit a rape is included in an indictment for statutory rape.

In a prosecution for rape of a child 12 years of age, evidence examined, and held sufficient to support a conviction for assault with intent to commit rape.

In a prosecution for rape, the fact that the defendant fled from his home is admissible as tending to establish guilt.

Appeal from District Court, Bryan County; Summers Hardy, Judge.

Joe Pittman was convicted of an assault with intent to commit rape, and appeals. Affirmed.

J. Q A. Harrod, of Oklahoma City, for plaintiff in error.

Chas West, Atty. Gen., for the State.

DOYLE J.

The plaintiff in error, hereinafter referred to as the defendant was indicted in the district court of Bryan county on December 17, 1910. The indictment charged that on May 16 1910, "one Joe Pittman, late of Bryan county, did unlawfully and feloniously in and upon one Eula Yancey, a female under the age of 14 years, make an assault, and with her, the said Eula Yancey, he, the said Joe Pittman, then and there did have sexual intercourse, she the said Eula Yancey not being the wife of him the said Joe Pittman, contrary to," etc. On his trial the defendant was found guilty of assault with intent to commit rape, and his punishment assessed at three years in the penitentiary. February 4, 1911, the court overruled a motion for a new trial and entered judgment in accordance with the verdict. The defendant appealed, by filing in this court June 29, 1911, a petition in error, with case-made attached.

It is contended that under this indictment he should have been convicted of rape in the first degree or acquitted, and that for this reason his conviction of assault to commit rape is not sustained by the evidence. Testimony tending to prove the defendant's guilt of rape as charged necessarily included that of assault with intent to commit rape. Section 6875 (Snyder's Sts.), Procedure Criminal, provides: "The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense." In the case of Lee v. State, 7 Okl. Cr. 141, 122 P. 1111, it is said: "The prosecutrix, being under the age of consent, was conclusively incapable of...