Sayers v. State
| Decision Date | 01 November 1913 |
| Citation | 135 P. 1073,10 Okla.Crim. 233,1913 OK CR 288 |
| Parties | SAYERS ET AL. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where a preliminary complaint charging a felony is sworn to positively by some person, it is sufficient of itself to authorize the magistrate to issue a warrant for the arrest of the defendant, and it is sufficient to authorize the magistrate to hold a preliminary examination.
The fact that there was a preliminary examination and a judicial determination thereon by the magistrate, that a felony had been committed, and that there is probable cause to believe the defendants guilty thereof confers jurisdiction on the district court and authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence on such examination.
An application for change of venue is addressed to the sound discretion of the court, and this court will not reverse the ruling of the trial court denying such application unless it is made to appear that there has been such an abuse of discretion as to constitute a denial of a substantial right.
An application for continuance in a criminal case is addressed to the sound discretion of the trial court, and its action thereon will not be disturbed, unless there appears to have been a clear abuse of discretion.
When a defendant, who has a right of election as to several defenses, takes the stand as a witness and makes such admissions as to render every theory of defense unavailable save one, he will be deemed to have elected that one.
It is the province of the jury to determine questions of fact and decide between conflicting inferences and the duty of this court to interfere arises only when it can see that the verdict is contrary to the evidence or appears to have been influenced by passion or prejudice.
Additional Syllabus by Editorial Staff.
A preliminary complaint in a rape case is sufficient where it charges the crime substantially in the language of Rev. Laws 1910, § 2414, defining rape.
The phrase "previous chaste and virtuous character" means in law, as in morals, a female who has never voluntarily indulged, out of wedlock, in sexual intercourse.
Appeal from District Court, Lincoln County; Chas. B. Wilson, Jr. Judge.
Olie Sayers and another were convicted of rape, and bring error. Affirmed.
Phrase "previous chaste and virtuous character" means in law, as in morals, a female who has never voluntarily indulged, out of wedlock, in sexual intercourse.
On the 22d day of July, 1911, a complaint was filed before the judge of the county court, charging that the defendants on the 20th day of July, 1911, "did feloniously have and accomplish sexual intercourse with Mary Mehringer, a female over the age of 16 and under the age of 18, of previous chaste character and not then and there the wife of the defendants," etc. Which complaint was verified by Mary Mehringer and warrant issued thereon, and the defendants were apprehended.
On the 6th day of September, 1911, another complaint was filed which charged: "That on the 20th day of July, A. D. 1911, in the county of Lincoln and state of Oklahoma, one Olie Sayers and Rolla Sollers and Charles Endicott, then and there being did then and there willfully, unlawfully, and feloniously in and upon Mary Mehringer, a female then and there being, did then and there unlawfully, violently, forcibly, and feloniously make an assault, and her (the said Mary Mehringer) then and there resisting, and said resistance being overcome by force and violence then and there, unlawfully, forcibly, and violently and against her will, feloniously did have and accomplish sexual intercourse with the said Mary Mehringer, she not being then and there the wife of the said Olie Sayers, Rolla Sollers, and Charles Endicott, contrary to," etc. This complaint was sworn to positively by Fred A. Wagoner.
On the 8th day of November, the defendants filed a motion to quash the warrant and complaint for the reason that the same was not issued upon a duly verified complaint as required by the Constitution. Which motion was overruled. Thereupon the defendants filed a general demurrer to the complaint, which was overruled; a preliminary examination was had upon the second complaint.
Mary Mehringer testified that she was 16 years of age on the 20th of March, 1911; that on the night of the 20th of July, 1911, the defendants accomplished an act of sexual intercourse with her by force and violence, overcoming her resistance. The details of her relation need not be repeated here.
Roy Scott, as a witness for the state, testified in substance that he was with Mary Mehringer and the defendants took her by force from the highway through the fence into a wood pasture, overcoming her resistance, and threw her down, and that she called for him to come and protect her.
At the close of this testimony the state rested. The defendants did not offer any testimony.
The judge of the county court made the following order: "The court finds that the offense charged in the complaint herein has been committed, and that there is sufficient cause to believe that the defendants, Olie Sayers, Rolla Sollers, and Charles Endicott, to be guilty of said crime charged and are therefore ordered held to the district court in said county and state." On the 21st day of November, 1911, there was filed in the district court an information.
On the 5th day of December, 1911, leave of court having first been obtained, there was filed by the county attorney an amended information charging: etc. Upon arraignment defendants filed a motion to quash the information, which was overruled. Thereupon they filed a general demurrer to the information, which was overruled, and the case was set for trial December 19th. At that time the case was continued to December 27, 1911, and the county attorney asked leave to dismiss as to the defendant Charles Endicott that he might be used as a witness on the part of the state, and it was by the court so ordered.
On the 27th day of December the defendants filed an application for a change of venue, which was overruled. Thereupon they filed an application for continuance, which was granted, and the case was set for trial on the 13th day of February, 1912.
On the 15th day of February the jury rendered their verdict finding the defendants "guilty as charged in the information of rape in the first degree" and assessing their punishment at imprisonment in the state penitentiary for ten years.
Motions for new trial and in arrest of judgment were duly filed. On the 13th day of March, 1912, these motions were overruled, and the court pronounced judgment and sentenced the defendants in accordance with the verdict of the jury.
To reverse the judgment the defendants appealed by filing in this court on August 6, 1912, a petition in error with case-made.
Geo. B. Rittenhouse, F. A. Rittenhouse, Roy Hoffman, and Emery A. Foster, all of Chandler, for plaintiffs in error.
Charles West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
DOYLE, J. (after stating the facts as above).
The plaintiffs in error, whom we shall hereinafter denominate the defendants, claim a reversal of the judgment upon numerous assignments of error, but we shall consider only those which we deem of sufficient moment to warrant specific mention.
The first is that the court erred in overruling the defendant's motion to quash the information. In support of the motion the transcript of the record and proceedings had before the examining magistrate was offered in evidence. Counsel in their brief say: "Our contention is that to authorize the issuance of a warrant of arrest there must be filed with the magistrate a complaint verified by the affidavit of one who knows the facts of his own knowledge." And that for this reason the defendants' motion to quash the original complaint should have been sustained, and the district court was therefore without jurisdiction to try said defendants upon an information based upon said complaint.
The original complaint upon which warrants issued for the defendants was verified by the prosecutrix. The second complaint was sworn to positively by Fred A. Wagoner. Where a complaint charging a felony is verified as true in positive terms, such verification constitutes a sufficient showing of probable cause to authorize the issuance of a warrant of arrest and to hold a preliminary examination before an examining and committing magistrate. It is a sufficient compliance with that provision of the Bill of Rights (section 30) which provides: "And no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particular as may be the place to be searched and the person or thing to be seized."
The evidence offered on the part of the state upon the preliminary examination was sufficient to show that the crime of rape had been committed, and that there was sufficient cause to believe the defendants guilty thereof. The fact that there was a preliminary examination...
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