Walker v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: DOYLE, J.
• Citation: Walker v. State, 126 P. 829, 8 Okla.Crim. 125, 1912 OK CR 388 (Okla. Crim. App. 1912)
• Decision Date: 28 September 1912
• Parties: WALKER v. STATE.

126 P. 829

8 Okla.Crim. 125, 1912 OK CR 388

WALKER v. STATE.

Court of Criminal Appeals of Oklahoma

September 28, 1912

Syllabus by the Court.

Evidence reviewed, and held sufficient to sustain verdict of guilty in prosecution for statutory rape.

In a prosecution for statutory rape, the defendant is not entitled as a matter of right to question the prosecutrix on cross-examination as to whether any one except the defendant had sexual intercourse with her.

Appeal from District Court, Okfuskee County; John Caruthers, Judge.

Gus Walker was convicted of statutory rape, and appeals. Affirmed.

W. A Huser and C. B. Conner, both of Okemah, for plaintiff in error.

Chas West, Atty. Gen., for the State.

DOYLE J.

The plaintiff in error, Gus Walker, was convicted of the crime of rape, alleged to have been committed on the 1st day of August, 1909, upon Pearl Baker, a female under the age of 16 years, and his punishment assessed by the jury at imprisonment in the penitentiary for 5 years. The judgment and sentence was pronounced and entered February 24, 1911. He appealed by filing in this court a petition in error with case-made July 1, 1911.

There were but two witnesses for the state. J. L. Baker testified that prosecutrix was his daughter; that she was born in the Cherokee Nation on the last day of July, 1895, and was now 15 years of age; that he had one other child, a boy, 11 years old; that his wife died four years ago; and he had since lived with his daughter and son on a farm in Okfuskee county. The prosecutrix testified that she was acquainted with the defendant for about two years, that he lived about a half or three-quarters of a mile from her father's home.

The record shows that it was with great difficulty the witness was brought to the point of testifying in support of the allegations of the information, and then only after much urging by the county attorney and admonishing remarks by the court. As taken from the transcript her further testimony is as follows:

"Q. Did the defendant any time during the summer of 1909 have any improper relations with you? Just answer the question. I know it is embarrassing.

By the Court: Answer that question.

By the Witness: A. I don't want to injure him, because I don't want him sent over the road.

By Mr Wright: Q. Answer the question. Did he, or did he not?

By the Court: Answer the question 'Yes' or 'No.'

By the Witness: A. I would give my life if I could just only keep him out of there.

By the Court: Answer that question 'Yes' or 'No.'

By Mr. Wright: Q. Just answer the question.

By the Court: Q. Can you answer that question 'Yes' or 'No'? You can answer it 'Yes' or 'No.' Answer it one way or the other; say 'Yes' or 'No.'

By Mr. Huser: The defendant objects to the question because it is leading, and calls for a conclusion of the witness. Let him ask the witness what happened.

By Mr. Wright: That will be the question to follow, I think. I will withdraw the question. How far did you live from Welty at this time? A. Lived about a mile and a half. Q. How far did you live during the summer of 1908? A. Lived about four mile. Q. Just remove your hands, and sit up straight so the jury can hear you. You just answer the questions that are asked and state what the truth is, whatever it is. A. It is not going to do me any good. It is not going to help me raise that baby. Q. I will ask you, did the defendant ever have intercourse with you at any time? Answer 'Yes' or 'No.'

By the Court: Q. Answer that question 'Yes' or 'No,' one way or the other. Did the defendant ever have sexual intercourse with you? A. Yes, sir.

By Mr. Wright: Q. When was it as near as you remember, about what time? A. I don't know what time it was. Q. What year? A. I don't know that either. Q. As a result of the sexual intercourse are you the mother of a child at this time? A. Yes, sir. Q. When was that child born? A. Born 11th day of May, 1910. Q. In what county were you living at the time you had that sexual intercourse with the defendant? A. In Okfuskee. Q. You are not now, or never have been, the wife of the defendant, Gus Walker, have you? A. No, sir."

On cross-examination she admitted that at the time of the birth of her child she told Mrs. Mashburn that the child was Lon Welch's; that she told her this because she did not want to tell her whose child it was.

The defendant testified on his own behalf that three years before the trial he moved from Texas to Okfuskee county, Okl., and denied that he ever had intercourse with the prosecutrix. On cross-examination he admitted that in December, 1909, he moved back to Texas, and was there arrested for the offense here charged.

The first assignment of error is "that the evidence on the part of the state is insufficient to sustain a conviction, for the reason that the act complained of is not shown to have occurred within the statute of limitations; that the trial court therefore erred in denying defendant's motion for a directed verdict of acquittal. We have no hesitation in saying that the evidence as disclosed by the record was amply sufficient to warrant the court in refusing to direct a verdict of acquittal. It is an undisputed fact that defendant and prosecutrix had known each other for less than three years before the trial. The birth of the child conclusively established a prior act of intercourse, and this fact was relevant. It is our opinion that the evidence is sufficient to sustain the verdict.

The only other assignment argued in the brief relates to a ruling of the court on the cross-examination of the prosecutrix. She was asked: "Q. Miss Pearl, did any one else ever have intercourse with you except the defendant? By Mr. Wright: We object as incompetent, irrelevant, and immaterial, and not proper cross-examination. By the Court: Sustained. (The defendant excepts.)" We think the court properly sustained the objection to this question. If the question was definite in time or confined to about the time of the commission of the alleged crime, it might be competent cross-examination, in that the answer might tend to show that a man other than ...