Vickers v. U.S.
| Decision Date | 19 November 1908 |
| Citation | 98 P. 467,1 Okla.Crim. 428,1 Okla.Crim. 452,1908 OK CR 37 |
| Parties | VICKERS v. UNITED STATES. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
An indictment for rape under section 911, Ind. T. Ann. St. 1899 (Mansf. Dig. § 1568), that omits to allege that the accused "did carnally know, forcibly and against her will," or at least allege "sexual intercourse against the will and without the consent" of the female, is fatally defective.
[Ed Note.-For other cases, see Rape, Cent. Dig. § 29; Dec. Dig. § 25. [*]]
In framing an indictment the general rule is "that the offense shall be so described that the defendant may know how to answer it, the court what judgment to pronounce, and that a conviction or acquittal on it may be pleaded in bar of another indictment for the same offense."
[Ed Note.-For other cases, see Indictment and Information, Cent Dig. § 193; Dec. Dig. § 71. [*]]
A verdict of guilty "without capital punishment" may be rendered in a rape case under Act Cong. Jan. 15, 1897, c. 29, 29 Stat. 487 (U. S. Comp. St. 1901, p. 3620), even if there are no mitigating or palliating circumstances.
[Ed. Note.-For other cases, see Rape, Dec. Dig. § 60. [*]]
It is the duty of the trial court to instruct the jury that if they shall find a verdict of guilty of rape they may qualify their verdict by the words, "without capital punishment," no matter what the evidence may be.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1928; Dec. Dig. § 796. [*]]
In this case the evidence should affirmatively show that the defendant is not an Indian before the question of the death penalty could be submitted to the jury.
[Ed. Note.-For other cases, see Indians, Dec. Dig. § 38. [*]]
Where the proof is inconclusive as to the consummation by penetration, and the proof is evident as to assault with intent to commit rape, it is the duty of the trial court to instruct the jury of their right to convict of the lower offense.
[Ed. Note.-For other cases, see Rape, Cent. Dig. § 99; Dec. Dig. § 59. [*]]
A conviction of rape with sentence of death cannot be based on contradictory testimony of the prosecutrix as to whether or not there was penetration.
[Ed. Note.-For other cases, see Rape, Cent. Dig. §§ 83, 84; Dec. Dig. § 54. [*] ]
Evidence is admissible that tends directly to prove the defendant guilty, although it may also tend to prove a distinct felony and thus prejudice the accused.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369. [*]]
On a trial for rape, evidence of other independent crimes, such as burglary and larceny, committed by defendant in another state, is inadmissible.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369. [*]]
Where the language used by the Assistant United States Attorney in his opening statement is calculated to prejudice the accused, and proper objection is made and overruled by the court, and exception taken, the question will be reviewed by this court, but not otherwise.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037. [*]]
When the remarks of the Assistant United States Attorney to the jury in a rape case appeal to their fears or vanity and tend to coerce and cajole them, it is good grounds for a new trial, and the motion for new trial should have been granted.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2197-2201; Dec. Dig. § 919. [*]]
Where the Assistant United States Attorney in his argument to the jury went outside of the record and appealed to the passions and prejudices of the jury, and objection was made and overruled, the strength of the testimony against the defendant will be considered, and, if the improper statements may have determined the verdict, a new trial will be granted.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1676; Dec. Dig. § 723. [*]]
Error to the United States Court for the Western District of the Indian Territory, at Muskogee; before Justice William R. Lawrence.
Joe Vickers was convicted of rape, and brought error to the United States Court of Appeals for the Indian Territory, whence the case was transferred under the enabling act to the Supreme Court of Oklahoma, and from that court to the Criminal Court of Appeals. Reversed and remanded.
Lynn W. Culp, John Watkins, J. E. Wyand, and George K. Powell, for plaintiff in error.
William M. Mellette, U.S. Atty., Charles West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for the United States.
The plaintiff in error was indicted in the United States court in the Indian Territory for the Western District of said territory, sitting at Muskogee, at the October term, 1904, for the crime of rape, alleged to have been committed within said jurisdiction on the 16th day of May, 1904, upon one Bessie Dunbar. Said indictment was returned in open court on the 4th day of October, 1904. Defendant was duly arraigned, and pleaded not guilty, and was tried upon said indictment at the January, 1905, term of said court. The jury returned a verdict finding the defendant guilty of rape, as charged in said indictment. Whereupon the defendant filed his motion for a new trial, which motion was, on the 7th day of April, 1905, sustained by the court, and a new trial ordered. Thereafter, at the January, 1906, term of said court, a second trial was had, and on the 11th day of January, 1906, the jury in said case returned the following verdict: "We, the jury, find the defendant guilty of rape in the manner and form as charged in the indictment." On the 10th day of February, 1906, the court overruled defendant's motion for a new trial. Whereupon the defendant moved the court in arrest of judgment upon said verdict for the reason that the venue had not been proven, which motion was denied, and the court then and there sentenced defendant to be hanged on the 20th day of April, 1906, at the city of Muskogee. And thereafter, on the same day, to wit, the 10th day of February, being a day of the regular January, 1906, term of said court, in the afternoon of said day, the defendant was again brought before the court, and was asked by the court if he had anything to say why the judgment of the court should not be pronounced upon him, the court explaining to the defendant the nature of the charge, the result of the trial, and the meaning of the verdict; and then and there, over defendant's objection, again sentenced defendant to be hanged on the 20th day of April, 1906. On the 12th day of April, 1906, a writ of error was allowed to the United States Court of Appeals for the Indian Territory, and this case was pending in said court when Oklahoma was admitted into the Union as a state. It was then removed to the Supreme Court of Oklahoma, by virtue of the provisions of the enabling act and the Constitution and laws of Oklahoma, and was duly transferred to this court by virtue of section 170, art. 7, of the Constitution of Oklahoma, and chapter 28, Sess. Laws, 1st Sess. Leg. Assem. Okl., the same being entitled "An act creating a criminal court of appeals, and defining the jurisdiction of said court," approved May 18, 1908 (Laws 1907-08, p. 291).
Numerous assignments of error are presented by the petition, and are argued in the briefs; such as the verdict is not supported by sufficient evidence, error of the court in admitting evidence of offenses other than the one charged, improper conduct of the United States attorney in arguing the case, errors in admitting incompetent testimony, in excluding competent testimony, in failing to furnish the list of jurors who were to hear the case, in overruling motion for new trial, and in not sustaining motion in arrest of judgment, and also in resentencing defendant. The main contention of the defendant in the oral argument of the case before this court, by Mr. Powell, his counsel, was: First, that there was not sufficient evidence to warrant the conviction; second, that it was reversible error to admit evidence of other offenses; third, that the misconduct of the United States attorney was such that the defendant was denied a fair and impartial trial.
We have carefully examined the record, and, in the consideration of this case, we have tried to exercise that degree of caution and care that a proper administration of the criminal laws demand of all courts in all cases of life and death. The record showing the indictment on which he was tried (omitting the formal parts) reads as follows:
It is beyond the comprehension of this court to understand how the indictment in this case could be considered sufficient by the trial court to sustain the judgment and sentence imposed. If we except the allegation of felonious...
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