Roberts v. State
| Decision Date | 12 July 1935 |
| Docket Number | A-8819. |
| Citation | 47 P.2d 607,57 Okla.Crim. 244 |
| Parties | ROBERTS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Offense of "sodomy" consists in a carnal knowledge committed against the order of nature, with mankind or with a beast.
Syllabus by the Court.
1. The granting or refusal of a continuance rests in the sound discretion of the trial court, and a ruling of that court denying a continuance will not be reversed unless an abuse of discretion is clearly shown; but where such an abuse is manifest, it is the duty of the appellate court to interfere in the furtherance of justice.
2. The denial of defendant's motion for continuance held to have been in manifest abuse of judicial discretion in view of the undisputed facts shown by the moving affidavit.
3. An information charging the commission of the crime against nature, in the language of the statute, with a person named is sufficient.
4. The detestable and abominable crime against nature, committed with mankind or a beast made punishable by Penal Code (section 2553, St. 1931), includes not only the offense of sodomy, but any other act of bestial or unnatural copulation.
5. In a prosecution for the infamous crime against nature, evidence examined and held insufficient to support the verdict and judgment of conviction.
Appeal from District Court, Pontotoc County; J. F. McKeel, Judge.
M. D Roberts was convicted of sodomy, and he appeals.
Reversed.
Wimbish & Wimbish and King & Crawford, all of Ada, for plaintiff in error.
Mac. Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Pontotoc county upon an information charging him with having committed the crime of sodomy on or about the 29th day of November, 1933, upon the person of Dora McNeil, and in accordance with the verdict of the jury he was sentenced to imprisonment in the penitentiary for the term of ten years. To reverse the judgment, he appeals.
The record shows that defendant is a man of sixty-nine years of age and has been blind for the past twelve years; that he has lived in Ada for more than twenty-eight years, and for the past three years conducted a small store in a building 10 X 16 on 6th street near the Irwin school.
The complaining witness, Dora McNeil, a girl nine years of age, testified that some time in November defendant in the back part of his store, behind the counter, licked her private parts with his tongue; that she does not remember what time of day it was, whether in the morning going to school or coming from school; that at the time another school girl, Lenora Curtis, eight years old, was with her and defendant performed a similar act with the Curtis girl just before he committed the act with her; that he said "he would give us some candy if we would let him lick us"; that each watched the other when the act was committed; that there were no other persons in the store except the defendant and "us" girls; that they went to the store often, and she went to the store nearly every day, and continued to go until the complaint was filed; and that was the only time he ever did that.
Lenora Curtis testified that she was there with Dora and defendant licked her, in the back of the store, while Dora was standing in the store; then Dora went back there with him and she stood by the door and did not see him lick Dora; that an old man whose name was Van Curon was in the front part of the store sitting by the stove.
On cross-examination she stated that she did not tell anybody about it until Miss Bonnie, her teacher, asked her and she told her nothing like that took place; that she did not tell her father until her father threatened to whip her.
Will McNeil, father of Dora, testified over objections of defendant that his daughter told him about it a few days after it happened.
As a witness in his own behalf, defendant testified that he has lived in Ada twenty-eight years, has been employed by the cement plant, ice plant, Frisco Railway, and the Choctaw Cotton Oil Company; that he lost his sight twelve years ago, but had continued to make a living and had never asked for charity; that he had heard the testimony of the two girls; that their statements were absolutely untrue; that his store building was 10 X 16, one room, with a counter crossways and a little gate between the front and rear, with a stove in the front; that he was tried on a similar charge last week; that old man Van Curon, age eighty-nine years, was present and testified; that he had never been convicted of any crime. Over objection he then offered to show that he was never charged with any crime and was never before arrested.
On cross-examination he stated that Lenora Curtis came into the store one day and said: "Mr. Roberts this is my birthday, I am eight years old today," and he just spanked her nine times and gave her some mints for a birthday present; asked:
He further stated that these little girls were in the store several times together; that he reared a family here in Ada, three girls and a boy all living in Ada and vicinity; that his wife had been dead six years.
A number of witnesses were called and asked if they knew defendant's general reputation as to being an honest, upright, law-abiding citizen in the community, or otherwise; each answered "Yes" for more than twenty-five years; asked:
."
The transcript of the testimony of Dora McNeil given at the preliminary hearing was read to the jury. The following is an excerpt:
"Q. You all go down there nearly every day? A. Yes sir.
Q. You get candy there? A. Yes sir.
Q. That is the only time he ever bothered you? A. Yes sir.
Q. Who did you first tell that he did you this way? A. I didn't tell anybody but Miss Allen.
Q. You didn't tell Miss Allen about it until she asked you? A. Yes, sir.
Q. You didn't tell anybody about it until they asked you? A. No sir.
Q. You told her nothing like that took place? A. Yes sir.
Q. Who was the next person you told about it? A. The law asked me.
Q. Who, Pete Woods? A. I don't know which one.
Q. You first told him that nothing like that happened? A. Yes sir.
Q. Who was the one that told you that you must tell something did happen? A. Miss Allen did.
Q. Just what did Miss Allen say? A. She just asked me if he licked me or anything.
Q. And you first told her he didn't? A. The first time.
Q. How come you to tell her he did? A. I don't know.
Q. Why did you tell her that? A. I don't know."
By agreement the reporter read Lenora Curtis's testimony in the case tried March 27th. It was in part as follows:
"Q. Was Dora there when he licked you? A. No Maam.
Q. Were you there when he did something to Dora? A. Yes.
Q. What did he do to Dora? A. He kissed her.
Q. Kissed her and what else? A. Nothing.
Q. Was there another man in there? A. Yes.
Q. Who was the man? A. I don't know.
Q. Was it the old man you saw in the hall one day when you came up here before? A. Yes.
Q. Is his name Van Curon? A. Yes maam.
Q. What did he do, Hun? A. He didn't do anything that day.
Q. Were you standing up or lying down? A. Standing up.
Q. What did Mr. Roberts give you for you letting him lick you? A. A Baby Ruth."
Cross-examination:
"Q. Now, when you went down there, Dora was with you wasn't she? A. Yes maam.
Q. And Mr. Van Curon was in the store too? A. Yes maam.
Q. Mr. Roberts is blind isn't he? A. Yes Maam.
Q. Now what was Dora doing? A. Dora wasn't there that time.
Q. Wasn't Mr. Van Curon there? A. Yes, nobody else.
Q. Well, what did you do when you got back there, you and Dora? A. Dora-I don't know what Dora did. I didn't do anything.
Q. He didn't lick you that day? Did he? A. No.
Q. Didn't you tell Judge Willoughby that you and Dora were down there and that Mr. Roberts licked you behind the counter and that Mr. Van Curon licked Dora in front of the counter? A. He didn't lick Dora.
Q. I mean Mr. Van Curon? A. He didn't lick Dora either.
Q. Did you tell Judge Willoughby that? A. No.
Q. Did you see Mr. Roberts when he licked Dora? A. He didn't lick Dora.
Q. Did Mr. Van Curon lick you? A. No.
Q. Didn't you testify in this case that Mr. Van Curon licked you too, before Judge Willoughby? A. Well Mr. Roberts was the only one that licked me.
Q. Little girl, haven't you forgotten, don't you remember that you were out there with Mr. Harrison in the hall and you pointed Mr. Van Curon out and told him that he licked you too and they had him put in jail? Do you remember that? A. Yes maam.
Q. And did you tell Mr. Harrison that Mr. Van Curon had licked you? A. Yes Maam.
Q. And you told Judge Willoughby that when you testified before here? A. Yes maam.
Q. And you went and pointed the old man out? A. Yes maam.
Q. And they took him and put him in jail? A. Yes maam.
Q. You have been going to the store nearly every day, hadn't you? A. Yes maam.
Q. You have been getting candy down there? A. Yes maam.
Q. And after this happened you continued to go there? A. Yes.
Q. And I will ask you if your daddy didn't tell you if you didn't tell this he would whip you? A. Yes maam.
Q. And you told your daddy it wasn't so, didn't you? A. Yes maam.
Q. And your daddy told you if you didn't say it was so he would whip you, didn't he? A. Yes maam."
Redirect:
"Q. Did you talk to your school teacher, Miss Allen? A. Yes.
Q....
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