Timmons v. State

• Decision Date: 24 August 1929
• Docket Number: A-6611.
• Parties: TIMMONS et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

280 P. 314

44 Okla.Crim. 200

TIMMONS et al. v. STATE.

No. A-6611.

Court of Criminal Appeals of Oklahoma

August 24, 1929

Syllabus by the Court.

In prosecution for statutory rape, where there is evidence of more than one act of sexual intercourse between defendants 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 defendants, 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, Beckham County; E. L. Mitchell, Judge.

Glenn Timmons and another were convicted of rape in the first degree, and they appeal. Reversed and remanded, with instructions.

Ash Jones & Wesner, of Cordell, for plaintiff in error.

Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen for the State.

CHAPPELL J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Beckham county on a charge of rape in the first degree, and their punishment fixed at 15 years' imprisonment for each of them.

The information in this case charges "* * * that Glenn Timmons and Thelmar Thompson, acting jointly and together late of the county aforesaid, on or about the 10th day of October, 1926, in the county of Beckham and state of Oklahoma, did then and there unlawfully, wrongfully, forcibly, violently and feloniously make an assault in and upon one Gertrude Green, a female, not the wife of them or either of them, the said Glenn Timmons and the said Thelmar Thompson, thereupon and then and there and thereby overcome her resistance, and did then and there unlawfully, wrongfully, forcibly, violently and feloniously, without her consent and against her will, by means of said force sufficient to overcome her resistance, rape, ravish and carnally know her, the said Gertrude Green, contrary to the form of statutes in such cases made and provided and against the peace and dignity of the state."

At the conclusion of the evidence on the part of the state in chief, and after its announcement of rest, the defendants asked the court to require the county attorney to elect upon which of the two acts of intercourse proven by the state it would ask a verdict of guilty to which motion the county attorney objected, on the ground that the proof showed one continuous offense; thereupon said motion was overruled by the court and exception saved by the defendants.

At the close of the case, and upon announcement of rest by both parties, the defendants renewed their motion requiring the state to elect upon which act of intercourse it would ask a conviction, which motion was overruled by the court, and exception reserved by defendants.

The prosecutrix testified to two separate and distinct acts of intercourse, one with the defendant Glenn Timmons, and one with the defendant Thelmar Thompson, and that each of such acts of intercourse took place in the absence of the other defendant, and was accomplished without her consent, by force and violence overcoming her resistance.

In the case of Smith v. State, 20 Okl. Cr. 124, 201 P. 663, 664, this court said:

"Rape is not a continuous offense. On the evidence in this case every act of sexual intercourse testified to by the prosecutrix constituted a distinct crime, and the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else the court would 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 this particular act as a basis for a conviction. 22 R. C. L. p. 1227, § 63. * * * It has been repeatedly held in this state that a person may be tried for, and convicted of, only one offense at a time, and while proof of other acts of intercourse, in a prosecution for statutory rape 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

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