Strunk v. State, A--14711

• Decision Date: 29 January 1969
• Docket Number: No. A--14711,A--14711
• Citation: 450 P.2d 216
• Parties: Miles Isaac STRUNK, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 216

450 P.2d 216

Miles Isaac STRUNK, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14711.

Court of Criminal Appeals of Oklahoma.

Jan. 29, 1969.

Syllabus by the Court

1. An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit. 22 O.S. § 304.

2. An information may be amended in matters of either form or substance when it can be done without prejudice to the substantial rights of the accused.

3. An indictment for rape by threats may allege the use of threats generally without specifying them. An allegation that the act was committed by force and against the will of the female is equivalent to stating that she was prevented from resisting by threats of immediate and great bodily harm.

4. The defendant adduced no evidence to support his claim that a jury selected, as this one was, is necessarily 'prosecution prone.' Moreover, the question is not properly before us since the voir dire examination of the jurors was not made a part of the record.

5. An act of sexual intercourse is rape in the first degree without regard to the age of the female, when accomplished with a female, not the wife of the perpetrator, where she resists but her resistance is overcome by force and violence, or where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution.

6. The old rule of 'resistance to the uttermost' is obsolette, and is repudiated by the more modern authorities. The law does not require that the woman shall do more than her age, strength, and surrounding facts, and all attending circumstances make it reasonable for her to do in order to manifest her opposition. In reference to the degree of resistance required, the jury should be instructed that it is necessary, not that the prosecutrix should have made the uttermost resistance, but that she has made such resistance as she was capable of making at the time.

7. A conviction for rape may be had on the uncorroborated testimony of the prosecutrix, or on slight corroboration, where the testimony of the prosecutrix is not inherently improbable or unworthy of credence.

8. In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the court any written charge and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, it must be refused. 22 O.S. § 856.

9. Where the evidence amply supports the verdict of the jury, the trial court carefully and meticulously instructed the jury as to the law applicable, and tne punishment imposed was well within the range provided by law, the judgment and sentence appealed from must be affirmed.

Appeal from Superior Court of Garfield County; Geo. Howard Wilson, Judge.

Miles Isaac Strunk was convicted of the crime of Rape in the First Degree, was sentenced to serve 30 years in the State Penitentiary, and from said judgment and sentence he appeals. Affirmed.

Robert L. Gregory, Enid, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

Miles Isaac Strunk, hereinafter referred to as defendant, was charged, tried and convicted in the Superior Court to Garfield County with the crime of Rape in the First Degree; he was sentenced to serve 30 years in the State Penitentiary, from which judgment and sentence he appeals.

On appeal the defendant urges five assignments of error, which we will consider in the order in which they were raised during the lower trial court proceeding.

Under defendant's proposition #2, he urges that the trial court erred in allowing the state to amend the Information, by inserting the words 'accompanied by apparent power of execution,' which amendment defendant alleges raised the degree of the crime charged from that of second degree rape to the crime of rape in the first degree. The Information, as amended, appears in the record at page 6 of the casemade as follows:

'STATE OF OKLAHOMA, GARFIELD COUNTY, ss:

I, the undersigned District Attorney of Garfield County, Oklahoma, in the name, by the authority, and on behalf of the State of Oklahoma, give information that on or about the 8th day of May, A.D., 1967, in said County of Garfield and State of Oklahoma MILES ISAAC STRUNK did then and there unlawfully, willfully and feloniously, with the use of force and violence and by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, to one Kathryn Walker, and did then and there rape, revish (sic), carnally know and have secual intercourse with said female against her will and consent, contrary to the form of the Statutes in such case made and provided, and against the peace and dignity of the State of Oklahoma.

VIRGIL R. BALL, District Attorney

By /s/ Norman A. Lamb

Assistant District Attorney.'

Title 22, O.S. § 304, provides:

'An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.'

In construing this statute, this Court stated in Cody v. State, Okl.Cr.App., 376 P.2d 625, in Syllabus No. 3:

'An information may be amended in matters of either form or substance when it can be done without prejudice to the substantial rights of the accused.'

In the instant case the Information, prior to its amendment, was sufficient to charge the offense of Rape in the First Degree and not Rape in the Second Degree, as contended by the defendant. The defendant had had a preliminary hearing, had been arraigned in open court where he waived the reading of the Information, was ready to proceed to trial prior to the amendment, when the State, over his objection, was allowed to amend. He did not request that the case be remanded for a preliminary hearing, but rather, insisted on proceeding to trial on the charge of Rape in the Second Degree and when this plea was to no avail, he orally requested a continuance which was overruled by the court. The Information, prior to its amendment, was sufficient to inform the defendant of the charge for which he was to be tried, and while no model of pleading, it was adequate under the general rule set forth in 75 C.J.S. Rape § 39, p. 504, wherein it is stated:

'An indictment for rape by threats may allege the use of threats generally without specifying them. An allegation that the act was committed by force and against the will of the female is equivalent to stating that the was prevented from resisting by threats of immediate and great bodily harm.'

We are of the opinion, and therefore hold, that the amendment was an amendment as to form rather than substance and this assignment of error is without merit.

In his fifth assignment of error, the defendant urges that he did not have an impartial jury since the jury was limited to only those jurors who would vote for the death penalty. To support this contention he refers to the recent opinion of the United States Supreme Court decision, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. In that opinion, the court ruled:

'Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.'

As the Assistant Attorney General, Mr. Charles Owens, succinctly illustrates in his reply brief, this argument is not available in the present case as is clearly pointed out in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797. In the body of the Bumper opinion, supra, it is stated:

'Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant's guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. * * *

We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily 'prosecution prone,' and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon. Accordingly, we decline to reverse the judgment of conviction upon this basis.'

In accordance with Bumper, supra, we are of the opinion that this assignment of error is without merit. Moreover, we observe that the question is not properly before us since the voir dire examination of the jurors was not made a...