Weaver v. State
| Decision Date | 06 December 1919 |
| Docket Number | A-2711. |
| Citation | 185 P. 447,16 Okla.Crim. 564 |
| Parties | WEAVER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
To sustain a conviction of attempt to have carnal knowledge of a female under the age of 16 years, there must not only be the intent, but some overt act in furtherance of such intent must be shown.
The evidence in this case carefully examined, and held insufficient to support the verdict of guilty as found and returned by the jury.
Appeal from District Court, Woodward County; James B. Cullison Judge.
Albert D. Weaver was convicted of an attempt to have sexual intercourse with a female under the age of 16 years, and appeals. Reversed, with instructions to dismiss the case and discharge defendant.
W. A Briggs, of Oklahoma City, for plaintiff in error.
S. P Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
The plaintiff in error, Albert D. Weaver, hereinafter referred to as defendant, was informed against for the offense of an attempt to have sexual intercourse with Vinnie Hand, a female under the age of 16 years, convicted and sentenced to confinement in the county jail for 1 year and a day. To reverse the judgment rendered, the defendant prosecutes this appeal.
The evidence for the state tends to show that Vinnie Hand, a female under the age of 16 years, retired to bed and went to sleep, and that during the night she was awakened by the lady of the house coming to her room, with a lighted lantern, and a man dressed only in his underclothes was in bed with her that said man, so far as Vinnie Hand knew, had not kissed, hugged, or in any manner come in contact with her body, or had even spoken to her; that the lantern carried by the lady of the house gave sufficient light to plainly see who the man in the bed with Vinnie Hand was; that the said lady of the house left the room, and was followed by the man who had been in the bed with Vinnie Hand, without said man making any explanation of his presence in said room and bed; that the defendant was, on the night the attempt was alleged, at the house in which Vinnie Hand's room was, and retired to bed about 1 o'clock and took breakfast at the said house next morning, and both Vinnie Hand and the lady of the house positively identified the defendant as the man who was in the bed with Vinnie Hand.
Upon conclusion of the evidence the defendant moved the court to instruct the jury to return a verdict of not guilty, which the court refused to do, and the defendant excepted.
On the part of the defense the evidence tended to show that at the time alleged defendant was at his home nerby.
Several witnesses testified that Miss Vinnie Hand had stated to them that there was a man in her room that night, but she did not know that it was A. D. Weaver, but that she had to swear it was, or they would send her to the reform school.
Several witnesses testified that they, with A. D. Weaver, were threshing at the place where Vinnie Hand was staying, and A. D. Weaver did not wear underclothes while working with this threshing crew.
There are several errors assigned, but under the view we take of the case we deem it unnecessary to consider any of the said errors complained of, other than that of the court in refusing to direct a verdict for the defendant.
33 Cyc. 1431, d-citing many authorities.
In Endson v. State, 49 Tex. Cr. R. 24, 90 S.W. 177, it is held:
"To constitute an assault with intent to rape a girl under 15 years of age, there must be a taking hold of her for the purpose of having sexual intercourse with her."
In Carter v. State, 44 Tex. Cr. R. 312, 70 S.W. 971, it is held:
"To constitute an assault with intent to rape a girl under 15, there must be a taking hold of the girl in such manner as to indicate the specific intent to have carnal knowledge of her, and the mere fact that an accused may have produced in the girl's mind a sense of shame or other disagreeable emotion or constraint is not sufficient."
In Garrison v. People, 6 Neb. 274, it is held:
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