State v. Edy

• Decision Date: 23 March 1926
• Citation: 117 Or. 430,244 P. 538
• Parties: STATE v. EDY.
• Court: Oregon Supreme Court

244 P. 538

117 Or. 430

STATE v. EDY.

Supreme Court of Oregon

March 23, 1926

Department 2.

Appeal from Circuit Court, Jackson County; C. M. Thomas, Judge.

T. E Edy was convicted of assault with intent to commit rape, and he appeals. Affirmed.

On June 9, 1925, the defendant was indicted by the grand jury of Jackson county, Or., for the crime of assault with intent to commit rape upon the person of Grace Gilman, a child of the age of 10 years. From a judgment of conviction, he appeals to this court. The charging part of the indictment reads:

"That the said T. E. Edy, on the 20th day of May, A. D. 1925, in the county of Jackson, state of Oregon, then and there being, did then and there unlawfully and feloniously assault one Grace Gilman, a female child under the age of 16 years, with intent then and there to have sexual intercourse with and carnally know her. * * *"

W. R Gaylord, of Medford (N.W. Borden, of Medford, on the brief) for appellant.

Newton C. Chaney, Dist. Atty., of Medford, for the State.

BROWN J.

The defendant demurred to the indictment on the ground that the facts stated therein failed to constitute a crime. The court overruled the demurrer, and the defendant assigns error of the court in such ruling. He argues that the indictment should have stated the age of the defendant, and, in support of his contention, cites section 1912, Oregon Laws. In some jurisdictions, where the age of the male is fixed by statute which designates as rape all carnal knowledge of the body of a female under a certain age, it is held necessary to allege and prove the age of the defendant. Wistrand v People, 72 N.E. 748, 213 Ill. 72. But, in other jurisdictions, including our own, such an allegation is held to be unnecessary. Or. L. p. 1347, form 7; State v. Knighten, 64 P. 866, 39 Or. 63, 87 Am. St. Rep. 647; State v. Sullivan, 35 A. 479, 68 Vt. 540.

It is contended that the indictment is insufficient, in that it fails to negative that the prosecutrix is the wife of the defendant. He supports this contention by quoting from 2 Wharton's Criminal Procedure (10th Ed.) § 1159, but omits that part of the section which holds an indictment to be sufficient when drawn in the language of the statute under which the prosecution is brought, or substantially in the language thereof. In that section Mr. Wharton does say that "an indictment or information charging an assault with intent to commit rape must * * * allege that such female was not the wife of the accused." This statement, however, is based upon the case of Young v. Territory, 58 P. 724, 8 Okl. 525, which sets out the definition of "rape" as laid down by the laws of the state of Oklahoma (Laws 1895, p. 104) in language following:

"Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances. * * *"

But, in our statute, the word "wife" is not used in the definition of the term "rape," and for that reason it is unnecessary to allege that the victim of the averred offense was not the wife of the defendant. I Wharton's Criminal Law (11th Ed.) § 741, and cases cited in the note. See, also, 22 R. C. L. § 32, "Rape"; 17 Encyc. of Plead. & Prac. 651; 33 Cyc. 1439, 1440. Again, see our own Code (form 7, p. 1347, Or. L.).

The defendant also challenges the sufficiency of the indictment because, he alleges, it charges two crimes. There is no merit in the demurrer to the indictment upon this ground.

It is next contended that the court erred in its ruling upon an objection to the following testimony given by the prosecutrix:

"Q. Did you go across to the woodshed and speak to him, or not? A. Yes, sir.

"Q. What did he say to you, or what did you say to him?"

The trial court instructed the district attorney to ask as few leading questions as possible in conducting his examination, and the discretion vested in the court was not abused in ruling upon this question. Or. L. § 858.

It is claimed that the court erred in overruling the objections of defendant's counsel to questions propounded to the various witnesses by the prosecution, as set out in the following exceptions:

Exception No. 2 relates to the little girl's testimony, wherein she states that the defendant enticed her to enter a dark room, and wherein she told of his flagrant conduct that followed.

Exception No. 3 relates to the testimony of Mrs. Susie Coy, an aunt of the prosecutrix. This witness testified at length on direct and cross-examination without objection; but, at the conclusion of her testimony on cross-examination, the defendant "moved that all of this testimony that the witness has stated be stricken out because it is purely voluntary and not responsive to the question and not a part of the res gestæ, and it is simply voluntary on the part of the witness." The court committed no error in denying that motion.

The next exception relates to the refusal of the court to direct a verdict in favor of the defendant. At the conclusion of the state's case, the defendant addressed the court thus:

"May it please the court, at this time the defense desires to move for a directed verdict on the ground and for the reason that the state has failed to produce sufficient testimony which would warrant this case to go to the jury. As the court will remember, the testimony in chief was the testimony of the little girl, which is absolutely uncorroborated with the exception of the aunt and a brother, which they admitted was purely hearsay."

There is no law in this state requiring the corroboration of the testimony of the prosecutrix before a conviction can be had in a case of rape. State v. Knighten, supra; State v McPherson, 138 P. 1076, 69 Or. 381. Grace Gilman could not have been an accomplice of defendant. However, the sufficiency of the testimony to take the cause to the jury is the only question of import presented here. The girl who is alleged to be the victim appears from the undisputed evidence to have been an intelligent, moral child of the youthful age of 10 years. The vital inquiry relates to the intent that was in the defendant's mind when he assaulted the child, if he did in fact assault her. The defendant having taken the witness stand, the sufficiency of the testimony will be gauged according to the evidence of record at the conclusion of the cause. The jury may well have thought that the...