Powell v. State
| Decision Date | 19 July 1915 |
| Docket Number | A-2159. |
| Parties | POWELL v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
In a prosecution for statutory rape, where there is testimony from which the jury might legally have inferred all the essential elements of the crime charged, and it does not appear that the jury were influenced by considerations other than the evidence, the verdict of guilty will not be disturbed.
The credibility of the defendant and other witnesses testifying in his behalf is the exclusive province of the jury to determine, and, although such testimony be uncontradicted and not directly impeached, when there are facts and circumstances in evidence tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same.
In a prosecution for statutory rape, it is not necessary to prove by direct and positive evidence that the defendant and the prosecutrix were not husband and wife at the time of the alleged offense, but it is sufficient if there are facts and circumstances in evidence that will justify the jury in reaching that conclusion.
Instructions both given and refused, are examined, though not set out in the opinion, and no reversible error is found in them.
Appeal from District Court, Okmulgee County; Wade S. Standfield Judge.
Arthur Powell was convicted of rape, and appeals. Affirmed.
Eaton & Cowley, of Okmulgee, for plaintiff in error.
Chas West, Atty. Gen., and C.J. Davenport, Asst. Atty. Gen., for the State.
Plaintiff in error was tried and convicted in the district court of Okmulgee county on an information charging the crime of rape upon the person of Katie Hendry, a female under the age of 14 years, to wit, of the age of 10 years. The jury by their verdict assessed the term of his imprisonment in the penitentiary at 30 years. On the 8th day of July, 1913, judgment was rendered and sentence imposed in pursuance of the verdict. From this judgment an appeal was taken by filing in this court on December 23, 1913, a petition in error with case-made.
The evidence shows that on Sunday morning, July 14, 1912, Katie Hendry, a child 10 years old, the daughter of James Hendry, a coal miner living in the town of Henryetta, was the victim of an assault accompanied by rape. On that day between the hours of 8 and 9 o'clock a. m. she was sent by her mother to get meat at a meat market on Main street in Henryetta, and was returning home when a man afterwards identified by her as the plaintiff in error approached her near the Bryant Livery Barn. Katie Hendry testified that he told her there was a picnic on the hill for all the schoolgirls, and that he would give her two little white rabbits if she would go with him; that she went with him, and they crossed the Frisco and Missouri, Oklahoma & Gulf Railroad tracks and a fence, and then went through two cornfields near a little creek and crossed another fence, and went to the top of the hill, and there they stopped under a shady tree. She further testified that this man then told her to lie down, and she refused to; that he then took out of his pocket a little knife with an ivory handle and opened it, and told her if she did not lay down he would cut her throat; that she laid down, and he tore her person with his fingers, and he then got down on top of her, and while he was thus on her she felt his person in her person; after that they went down to the creek; there he told her to take off her underskirt and wash it in the creek, and he would wait in the shade; that after she had washed her skirt she looked for him, but could not find him, and she went home and told her father about what the man had done. The evidence further shows that her father took her to her grandmother's, where her mother was. From there her parents took her in a buggy to the office of Dr. Breese. At Dr. Breese's office she told those present that the man wore a light white shirt, blue pants, black button shoes, and a little turned-up hat and a reddish tie. It was then about 11 a. m. After she was examined in the doctor's office her father took her down on the street and put her in a buggy and told her to look into every man's face and see if she could find that man. In a few moments Arthur Powell appeared, and she pointed him out as the man who had assaulted her. James Hendry testified that his daughter returned home about 10:30 a. m.; after the doctor had treated her they carried her down the stairs and lifted her into the buggy, and after sitting there about five minutes she pointed out the plaintiff in error, and said, "Papa, that is the man;" that he grabbed Powell and told him to show his knife; that Powell produced a small penknife with an ivory handle.
Mr. and Mrs. Hendry both testified that their daughter Katie was 11 years old on the 23d day of September, 1912. Dr. Breese, Dr. Robinson, and Dr. Holmes testified that their examination of the child disclosed a down-ward laceration at the entrance of the vagina of about 1 1/2 inches, and a laceration extending into the vagina about 2 1/2 inches; that Powell was brought into Dr. Breese's office immediately after his identification by the little girl, and an examination of his person and clothing was made; that the examination of the private parts disclosed no indication of his having committed the crime, and an examination of his finger nails with a miscroscope failed to disclose any blood, but they did find two or three spots of blood on the front and lower part of his shirt, which did not appear to be fresh.
Mollie Pinkston, Will Frayer, and Jim Reed testified to seeing a man coming out of a cornfield west and south of the place of the assault, dressed in clothes corresponding to the clothes worn by the plaintiff in error on that day. The last two witnesses identified the plaintiff in error as the man they saw coming out of the cornfield.
Ben Sheppard testified that he saw a man dressed in clothes corresponding to those worn by the plaintiff in error that day in company with a little girl in a field through which the little girl claimed to have traveled; that afterwards, in company with the officers, he followed the tracks made by the man and a little girl about one-half a mile.
S. F. Roach, John Montgomery, and A. Y. Patty testified to having examined the tracks along the route over which it was claimed that these parties traveled in going to the place of the assault and taking the shoes of plaintiff in error and fitting them in a number of said tracks.
The foregoing comprises, in substance, the testimony introduced by the state.
The plaintiff in error became a witness in his own behalf, and testified that he was about 30 years of age; that he arrived in Henryetta the night of July 13th; stayed all night at the King Hotel; that he arose about 5 o'clock in the morning and went from there to a restaurant on Main street, where he ate breakfast, and from there he went across the street to the Red Cross Drug Store, where he bought some cold drinks, and then returned to this restaurant, and from there he went east to a quick lunch stand, and from there over to Dr. Mooney's residence and talked with Mrs. Mooney; from there he returned back to the lunch stand, and from there he went to the King Hotel and paid for his lodging, and from there he went to Mrs. Six's restaurant, and from there he returned back to Main street and went to the hotel just across the street from the Bryant Livery Barn; that at this hotel he awoke the cook, a man with whom he had some acquaintance; that from this hotel he crossed the street over to the Bryant Livery Barn and talked with witness Moncreith about securing employment; that he then started to cross Main street to the Hooper Hide House, and on the way he met A. W. Hooper, and returned with Hooper back to the hotel; that from there he went to the Hide House and talked with A. W. Hooper's brother, and then went a second time to the residence of Dr. Mooney and talked with Dr. Mooney's wife; that he then went to the Red Cross Drug Store and purchased some cold drinks; from there he was not certain as to whether he went to the plumber's shop or to the residence of Rube Beal; that he was at each of these places after he left the Red Cross Drug Store the second time; at the residence of Rube Beal he talked with Mrs. Beal a short time, and then returned back to Main street; he met the witness Pharris near the post office, and had a conversation with him, lasting some 15 or 20 minutes; after leaving the witness Pharris he proceeded to the Henryetta Hotel, and there met the cook whom he had seen in the early part of the morning; from this point he went back on Main street and up Main street to where he saw a crowd gathering in front of the Red Cross Drug Store; that his attention was attracted by the crowd, and, because of the fact that he held certain coupons given to him...
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