Russell v. State
| Decision Date | 17 January 1920 |
| Docket Number | A-3025. |
| Parties | RUSSELL v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Jan. 15, 1921.
Syllabus by the Court.
The trial court is required to settle, and counsel are required to take exceptions to, instructions before the same are read to the jury.
When requested, it is error for the trial court to refuse to permit counsel for the defendant to have a reasonable opportunity to be heard upon the instructions to be given to the jury before the same are read to the jury.
The trial court is without power to make a rule of court which permits counsel on either side to save an exception to an instruction after the verdict of the jury has been returned in a criminal case. It is essential to the validity of a court rule that it must not contravene any constitutional or statutory provision on the same subject.
Where counsel rely for an exception to an instruction given by the trial court upon a rule of the court which directly contravenes the plain provisions of a statute and the decisions of this court construing same (requiring the instructions to be settled before being read to the jury in a criminal cause), on appeal the instruction will be considered as if no objection had been made or exception whatever had been taken to it.
Where no objection or exception is taken to the instructions of the trial court, such instructions will not be examined by this court for the purpose of discovering other than fundamental error.
The trial court gave the following instruction; "Gentlemen of the jury, you are instructed that a person charged with a crime shall, at his own request, but not otherwise, be a competent witness and his failure to make such request or to take the stand in his own behalf shall not create any presumption against him or be mentioned on the trial." Held, that said instruction is not fundamentally erroneous. The holding of this court in McLaughlin v State, 14 Okl. Cr. 192, 169 P. 657, is distinguished and modified to conform to the holding herein.
A witness to good character may be asked on cross-examination whether or not he has heard rumors of particular and specific charges of the commission of acts inconsistent with the character he is called on to prove, not for the purpose of establishing the truth of such facts or charges, but to test the credibility of the witness and to determine the weight to be given his evidence. The extent of such cross-examination is a matter resting in the sound discretion of the trial court, and a judgment of conviction will not be reversed because the trial court permitted such a cross-examination unless a clear abuse of such discretion is shown.
The remarks indulged in by the county attorney were not such as to constitute fundamental error, and considering the fact that the defendant made no denial of the incriminating facts and circumstances proved against him, and the further fact that, at the request of defendant's counsel, the court instructed the jury not to consider the only portion of the county attorney's argument objected to, said alleged improper argument cannot be considered reversible error in this case.
Appeal from District Court, Noble County; W. M. Bowles, Judge.
George Russell was convicted of statutory rape, and he appeals. Affirmed.
On the 11th day of January, 1916, Blanche De Roin, a female under the age of 16 years, gave birth to a male child at the home of the niece of this defendant near Warrensburg, in the state of Missouri, to which place the defendant had taken the said Blanche De Roin in the month of September, 1915. After the birth of the child, he was adopted by a man named Smith, who lived in the neighborhood of Warrensburg.
Prior to the happening of the foregoing events, the prosecutrix Blanche De Roin, and the defendant, George Russell, her stepfather, had lived on the Bar L ranch in the northeastern part of Noble county, Okl. The defendant had married the mother of the prosecutrix in the year 1911, at which time Blanche was 10 or 11 years of age. Blanche testifies that shortly after the marriage of her mother with the defendant the defendant directed his attentions to her, and in a short time accomplished sexual intercourse with her, a practice that was carried on between them at frequent intervals resulting in her pregnancy in the month of April, 1915, and the subsequent birth of her child in January, 1916.
The particular act of sexual intercourse relied upon for a conviction, and which resulted in the pregnancy of the prosecutrix, is alleged to have occurred in the home of the defendant and in a room in the second story of the said home, where the prosecutrix and her younger half-sister, Bertha Cunningham, were sleeping. The prosecutrix testified that the defendant, her stepfather, came to her bed early in the morning about the 11th of April, 1915, and accomplished an act of sexual intercourse with her. In this statement she is corroborated by her sister, Bertha Cunningham, who testified that the defendant came to Blanche's room and got into bed with her, and that she saw him on top of Blanche and described the movements of their bodies, indicating clearly an act of sexual intercourse.
In addition to the evidence relative to the act relied upon for a conviction, the prosecutrix testified to other acts of intercourse with the defendant, which she said were numerous, and as to several she was corroborated by other evidence and by a chain of circumstances clearly indicating an unlawful intimacy between the prosecutrix and the defendant. We deem it unnecessary to go into the minute details of these alleged acts of intimacy and intercourse further than to say that they tend unerringly to the conclusion that an unlawful relationship had existed between the defendant and the prosecuting witness for several years prior to the commission of the act relied upon for a conviction in this case.
In the spring of 1916, immediately subsequent to the birth of her child in January of that year, Blanche De Roin returned from Missouri to the home of her stepfather, and lived there and under the same roof with the defendant until shortly before the institution of this prosecution against him.
After Blanche's return from Missouri, the fact fact leaked out that she had given birth to a child while at the home of the defendant's niece in Warrensburg. This information resulted in an investigation by the authorities of Noble county, through juvenile proceedings instituted for the benefit of the children, Blanche De Roin and Bertha Cunningham, brought about at the instigation of Lennie Stockdale, an aunt of such children, who then resided in the town of Bliss, Okl. As a result of such investigation, Bertha Cunningham filed a complaint against her stepfather, charging him with the crime of statutory rape on her sister, Blanche. Blanche, however, at that time charged the crime to one Rolla McFarland, a young man living in the neighborhood. Later, however, and after the defendant had been arrested charged with the crime, Blanche filed a complaint against one Chris Anderson, a young man who had commenced to work for the defendant on April 9, 1915, charging him with the offense, and while the evidence shows that the said Chris Anderson had kept company with Blanche, there is no evidence in the record that he ever commenced to pay attentions to Blanche until several months after she became pregnant. Chris Anderson was still working for the defendant at the time he was arrested and charged with the crime, and it so happened that the filing of the complaint against Anderson was within the time of the sitting of a grand jury in Noble county, and, as required by law, his case was submitted to the grand jury, resulting in his discharge.
Up until the time of the hearing before the grand jury Blanche had told several conflicting stories as to who was responsible for her pregnancy. On the trial of this case she says that such stories were told by her at the behest and instigation of the defendant, and on the witness stand she admitted that she had told these several conflicting stories, but explained that defendant had threatened her if she did not tell them, and on the trial she testified positively that no other person than the defendant had ever had sexual intercourse with her.
The defendant did not take the witness stand in his own behalf. He offered evidence by several reputable witnesses to show that prior to the time of the institution of this prosecution his general reputation as an honest, upright, and law-abiding citizen was good. Otherwise his entire defense was directed to the purpose of discrediting the testimony of the prosecutrix and in an attempt to make the jury believe that this prosecution was the outgrowth of animosity upon the part of Lennie Stockdale, defendant's sister-in-law, against the defendant, and that the purpose of the said Lennie Stockdale was to blackmail the defendant into the payment of a sum of money to avoid prosecution. To this end the defendant placed the said Lennie Stockdale upon the witness stand, and introduced in evidence two letters written by the said Lennie Stockdale under dates of May 17 and 23, 1916, to Mrs. Pearl Byrd, which said letters are as follows:
"Bliss, Okl., May 17--16.
Mrs Pearl Byrd--Kind Friend: I was glad to receive your letter of the 16 and was glad to hear of Blanchie talkd like she did about me. I care for her when she was a baby and care for her until Russell got hold of her and care for her after to but if Blanchie want to give me tales I dont care a Dam. I no of her baby she stayed with me one month she want me to get reaid of it for but Mrs. Byrd I did not so george thought he better get her away. the baby is george. that is tacking...
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