Sowers v. Territory

• Decision Date: 30 July 1897
• Citation: 50 P. 257,6 Okla. 436,1897 OK 107
• Parties: SOWERS v. TERRITORY.
• Court: Oklahoma Supreme Court

50 P. 257

6 Okla. 436, 1897 OK 107

SOWERS v. TERRITORY.

Supreme Court of Oklahoma

July 30, 1897

Syllabus by the Court.

1. Rape, to be committed upon a person of the age of 17 years and at the time of sound mind, not under the influence of intoxicating, narcotic, or anesthetic agents, or unconscious of the nature of the act, is defined by our statutes as an act of sexual intercourse, accomplished with a female, not the wife of the perpetrator, where she resists, but her resistance is overcome with force or by violence, or where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution. Without force, actual or constructive, there can be no rape. To authorize a conviction, the testimony must show that the prosecutrix resisted to the extent of her ability. If, however, she submits from terror or the dread of greater violence, caused by threats, the intimidation becomes equivalent to force.

2. Under the statutes of this territory, in order to convict where resistance is not shown, it must be shown that the accused made threats of immediate great bodily harm to the prosecutrix; that such threats were accompanied by a power of execution, which at the time was apparent to her; that she believed at the time those threats were made that they would be carried into immediate execution if she resisted, or unless she ceased from resisting, and acquiesced in the act of the accused.

3. At common law, where the accused was not permitted to testify in his own behalf, the testimony of the prosecutrix might be sufficient to warrant a conviction for rape; but under the statutes of this territory, where the accused avails himself of the right to testify, and clearly and explicitly denies the commission of the offense, there must be testimony corroborating that of the prosecutrix, to authorize a conviction.

Error from district court, Noble county; before Justice A. G. C Bierer.

James C. Sowers was convicted of rape, and brings error. Reversed.

McAtee J., dissenting.

Thomas H. Doyle and S. H. Harris, for plaintiff in error.

T. H Howard, for the State.

TARSNEY J.

The defendant, James C. Sowers, was, at the November, 1895, term of the district court of Noble county, convicted upon an indictment charging him with the crime of rape, committed upon one Katie Sowers, the daughter of the defendant. The conviction was of rape in the second degree, and the defendant being sentenced to imprisonment in the territorial prison for the term of nine years, having unsuccessfully moved the court for a new trial and in arrest of judgment, brings the case to this court by petition in error.

Numerous assignments of error are presented in the record, such as that the court erred in overruling an application of the defendant for a continuance in the cause, in overruling defendant's challenge to members of the jury for cause, in permitting improper conduct of the prosecuting attorney in conducting the cause, in admitting incompetent testimony on the part of the prosecution, in excluding competent testimony offered on the part of the defendant, and in overruling an application of the defendant for a change of judge for the trial of said cause. In the oral argument of this case in this court, counsel for defendant did not seriously contend that any of these errors, thus assigned, would of themselves, and standing alone, call for a disturbing of the judgment, unless that relating to the change of judge, but insist that each and all of them have a bearing upon, and should be considered by the court in determining, the point relied upon by the defendant,--that the verdict was not supported by the evidence; that the previous errors of the court influenced the minds of the jury to consent to a verdict not warranted by the evidence. The main contention of the defendant is that there was no evidence, or no sufficient evidence, to warrant the conviction. The ordinary rule approved by this court is that where there is any evidence to support the verdict, or where the evidence is conflicting, the appellate court will not examine the record for the purpose of ascertaining or determining the weight of such evidence, and the verdict approved by the trial judge will be allowed to stand; but cases of the character of the one at bar have always been held an exception to such rule, and even exceptional, in this and other particulars, from the rules of procedure in ordinary criminal cases. Sir Matthew Hale, in 1 Pleas of the Crown (Ed. 1778) p. 363, distinguishes this character of case and the procedure from other criminal cases, and lays down certain rules and admonitory advice that have been approved by the courts of every jurisdiction since that day. He says: "It is true that rape is a most detestable crime, and therefore severely to be punished, with death; but it must be remembered that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent." He then mentions some unfounded malicious prosecutions for rape, among them a case tried before himself, where the prosecutrix swore positively to the commission of the offense, and it turned out upon inspection to have been physically impossible for the accused to have committed the offense. He adds: "I only mention these instances that we may be more cautions upon trials of offenses of this nature, wherein the court and jury may with so much ease be imposed upon without great care and vigilance, the heinousness of the offense many times transporting the judge and the jury with so much indignation that they are hastily carried to the conviction of the person accused thereof, by the confident testimony sometimes of malicious and false witnesses."

The indictment in this case charged the defendant with the crime of rape in the first degree, by making an assault upon the prosecutrix, and by force and violence, and against the resistance of the prosecutrix, and by overpowering such resistance by force and violence, that he did ravish and rape and carnally know and have sexual intercourse with said prosecutrix, she then and there not being the wife of the defendant. Whether necessary or not, in order to support a conviction of rape in the second degree, this indictment did charge that the defendant prevented resistance on the part of the prosecutrix by threats of immediate and great bodily harm, accompanied by apparent power of execution; and therefore the indictment clearly and plainly, in addition to being a good indictment to sustain a verdict of rape in the first degree, specifically charges the crime of rape in the second degree, under the provisions of the fourth clause of section 1, art. 26, c. 25, St. Okl. 1893, as amended by Laws 1895, p. 105, which reads as follows: "Fourth. Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution."

We have carefully examined all the testimony preserved in this record. The testimony of the prosecutrix may be fairly summarized thus: That she, at the time of the alleged offense, was a girl of 17 years of age, weighing 145 pounds. That her mother died in January, 1895. That they were living in the city of Perry. That after the death of her mother, the greater part of the care of her brothers and sisters (of whom there were five younger than herself) fell to her. That on the evening of April 14, 1895, it being Easter Sunday, she went to church, in company with a number of young people including a young man named Douglas. That her father, the defendant, was opposed to her keeping company with said Douglas. That, after the conclusion of the church service, the party went to the depot, and remained there until about 10 o'clock, when they went to an ice-cream parlor, and remained until after 11 o'clock. That when, between 11 o'clock and 15 minutes after, the prosecutrix, in company with said Douglas, were on their way to her home, and a couple of blocks therefrom, they were met by the defendant, who made an assault upon the said Douglas, and severely beat him. That she went home with her father, and went to bed. That, about 3 o'clock of that night, her father came into her room, and attempted to take liberties with her person. That her little sister, 12 years old, was in the room with her. That her father sent the little one out of the room, and locked her out. That, by her resistance and beseeching, she induced the defendant to desist from his attempt to have sexual intercourse with her, and to retire to his own room. That on the next night, about 1 o'clock, the defendant came again to her room, and lay down with her, and took improper liberties with her person. That she resisted, and cried out. That he put his hand over her mouth, and told her that, if she did not hush crying, he would kill her. That, at the time defendant came into her room, her two sisters, one 12 and the other 9 years of age, were in bed with her. That the elder of the younger girls, while the defendant was in bed with her, got up, and lit a lamp. The defendant made her blow it out, and made her get back into bed, he still remaining there. That he was in bed with her in all about a half an hour. That her door was not locked that night. That the defendant then had sexual intercourse with her that night. That, when defendant assaulted her, she did nothing to resist him, except to cry, and beg him not to mistreat her. She says she was afraid to do anything else, because he had threatened to kill her if she made any noise. That, after the defendant had had sexual intercourse with her, he directed her to get and use a syringe that was in the house, and she did get and use the syringe, to prevent conception. That the...