Tayrien v. State
| Decision Date | 08 February 1926 |
| Docket Number | A-5288. |
| Citation | 242 P. 1061,33 Okla.Crim. 231 |
| Parties | TAYRIEN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
In a prosecution for assault with intent to commit rape on a female child under 16 years of age, whether defendant was guilty of an offense necessarily included in the offense charged held for the jury under the evidence.
In a prosecution for assault with intent to rape, evidence held to raise the issue of assault and battery so as to authorize an instruction submitting such issue. Held, further, that the court erred in refusing to instruct the jury on such issue.
Appeal from District Court, Washington County; Jessie J. Worten Judge.
W. J Tayrien was convicted of assault with intent to rape, and he appeals. Reversed and remanded, with direction.
T. J Leahy, of Pawhuska, and Campbell & Ray and J. R. Charlton all of Bartlesville, for plaintiff in error.
George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
The information in this case charges that in Washington county, June 18, 1923, W. J. Tayrien "did then and there willfully, unlawfully and feloniously commit an assault upon the person of one Frances Collins and with his hands, seize, hold, strike and ill treat her," with intent "to carnally know, rape, ravish and have sexual intercourse with her," a female under the age of 16 years, to wit, 15 years, and not the wife of the said defendant. The jury returned a verdict finding him guilty as charged in the information and fixing his punishment at imprisonment in the penitentiary for a term of three years. He has appealed from the judgment rendered on the verdict.
A number of errors are assigned and argued. We have examined and considered them, but find it unnecessary to discuss the points raised, further than to say the information is sufficient and the demurrer thereto was properly overruled, and we find no error in the rulings of the court in the admission and rejection of evidence.
The assignments that the verdict is not sustained by sufficient evidence, and that the court erred in giving and refusing instructions, will be considered together.
The following brief statement of the case will be sufficient to make clear the legal propositions presented:
The prosecutrix, Frances Collins, was past 15 years of age. She and a number of other girls attended what they called a "kid party," dressed as small children, wearing half hose and short dresses. The defendant, Tayrien, was the owner of an automobile, and with two other boys, Herbert Gibbs and Jack Brandon, about 11 o'clock that night went to where the party was being held, apparently for the purpose of looking on. It appears they knew the most of the girls. It was arranged that the prosecutrix was to have as her escort Herbert Gibbs, and that Mildred Luten was to have as her escort Jack Brandon. Tayrien did not succeed in getting a girl. That they all got into Tayrien's car, and he drove around town and then out on the Tulsa highway a short distance, then turned into the road over Toalsons Hill, and after going over the hill stopped the car. Frances Collins and Herbert Gibbs occupied the back seat and Brandon and the girl Luten and Tayrien occupied the front seat. After the car stopped, according to the testimony of the prosecutrix, Herbert Gibbs undertook to put his hand under her dress and she prevented him, then Tayrien turned around and attempted to put his hand under her dress, and she told him to quit. About that time Herbert Gibbs, according to her testimony, became sick. Then Tayrien got out of the front seat and into the back seat with her and Gibbs. That he tried to put his arms around her and she moved over against Gibbs. That Gibbs got out of the car, and Tayrien again tried to put his hand under her dress, and she kept trying to keep him from doing so. That he attempted to kiss her and then pushed her down between the front and back seats. That he was on top of her. That his trousers were unbuttoned at that time, but they were not down. That he again attempted to kiss her. That during this time Herbert Gibbs was standing by the side of the car. That she did not know just where Jack Brandon and the Luten girl were. That she had no conversation with Tayrien except to ask him to get off, and he gave her to understand that he would not. That they had been struggling between the seats for about 15 minutes when the Luten girl and Brandon returned to the side of the car, and Brandon opened the car door. That she kept struggling and got about halfway out of the car and hurt her back. That she told Tayrien that her back was about broke, and Brandon put his knee under her back and held her up, and Tayrien was still on top of her. That they remained in that position for another 15 minutes, when she told Tayrien that she could not fight any longer, and he said, "Well, I will let you alone if you won't call me a quitter." That she told him she would not call him a quitter, and he got up. Then Brandon helped her out of the car, and they walked her around a little. Then she got in the front seat with Brandon and Tayrien, with the Luten girl and Gibbs in the back seat, and riding that way they went home. That when Tayrien attempted to kiss her, she told him that she would rather kiss a dog than to kiss him. She also testified that when Brandon came back, and while standing there, when she and Tayrien were struggling Brandon said something to Gibbs about betting on the result of the struggle between her and Tayrien.
Mildred Luten testified that she saw Tayrien and Frances Collins wrestling in the bottom of the...
To continue reading
Request your trial