Smith v. State

• Decision Date: 16 November 1921
• Docket Number: A-3733.
• Citation: 201 P. 663,20 Okla.Crim. 124
• Parties: SMITH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

201 P. 663

20 Okla.Crim. 124

SMITH v. STATE.

No. A-3733.

Court of Criminal Appeals of Oklahoma

November 16, 1921

Syllabus by the Court.

In a prosecution for statutory rape, where there is evidence of more than one act of sexual intercourse between defendant and prosecutrix upon which a conviction could be based, the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else have treated the act of which the state first introduced evidence to tend in any degree to prove the offense as an election and should have given a specific instruction limiting the jury to a consideration of such particular act as a basis for a conviction.

In this state a person may be tried for and convicted of only one offense at a time. Rape is not a continuous offense, and whilst in a prosecution for statutory rape proof of other acts of intercourse, occurring both prior to and subsequent to the one relied upon for a conviction, may be proved for the purpose of showing the intimate relations between the parties, etc., the conviction must be based solely upon one of such acts and not all of them, and it is error prejudicial to the defendant, where no election of acts is required, to instruct the jury in effect that a conviction should result from proof beyond reasonable doubt of any of such acts.

Appeal from District Court, Beaver County; Arthur G. Sutton, Judge.

Arthur O. Smith was convicted of statutory rape, and he appeals. Reversed and remanded.

Dickson & Dickson, of Beaver, for plaintiff in error.

S. P Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.

MATSON J.

This is an appeal from the district court of Beaver county, wherein the defendant, Arthur O. Smith, was convicted of the crime of rape, alleged to have been committed upon his daughter, Leola Mary Smith, a child under the age of 14 years.

Numerous assignments of error are relied upon for reversal of this judgment; but, in view of disposition made of this appeal, it will be necessary only to consider one of such assignments.

The information charged the offense to have been committed on or about the 1st day of August, 1918.

The evidence disclosed that the prosecutrix reached the age of 14 years on the 4th day of September, 1918. To obtain a conviction the prosecutrix testified to several acts of sexual intercourse with the defendant, beginning some time between Thanksgiving and Christmas of 1916, and extending up until a short time before the filing of this charge in March 1919.

The prosecution made no election as to which particular act of sexual intercourse upon which reliance would be had for a conviction. The trial court did not require the prosecution to elect, for a conviction, upon any particular act of intercourse between the defendant and the prosecutrix, prior to the time the prosecutrix reached the age of 14 years. In the court's general charge to the jury the following instruction was given:

"Any unmarried female under the age of 16 years is incapable of consenting to an act of sexual intercourse. The act of sexual intercourse therefore accomplished by a male with a female, under the age of 16 years, not the wife of the perpetrator, is rape, whether the perpetrator obtain her consent or not. Rape committed by a male over 18 years of age upon a female under the age of 14 years, or incapable through lunacy or unsoundness of mind, of giving legal consent, or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accomplished by apparent power of execution,

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