White v. State

• Decision Date: 10 March 1954
• Docket Number: No. A-11876,A-11876
• Citation: 268 P.2d 310
• Parties: WHITE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 310

268 P.2d 310

WHITE v. STATE.

No. A-11876.

Criminal Court of Appeals of Oklahoma.

March 10, 1954.

Syllabus by the Court.

1. A conviction for a violation of Title 21, § 1123, O.S.1951, for lewd, indecent acts by an adult person as to a child under 14 years of age may be sustained upon the uncorroborated evidence of the prosecutrix, nevertheless in a case where the evidence may appear inherently improbable and almost incredible, there must be corroboration by other evidence as to the principal facts to sustain conviction.

2. If a husband, charged with lewd or indecent acts against a stepdaughter under 14 years of age, wishes to avail himself of the benefits of a privileged communication with his wife, he must himself refrain from giving testimony concerning matters stated in such communication.

3. Where the proof of the defendant's guilt is evident, the fact that on cross examination the county attorney may have propounded a question containing objectionable matter, will ordinarily not be ground for reversal of the conviction.

4. When the entire argument on both sides is not before the court, and the county attorney contends that his argument is in reply to argument advanced by defendant's counsel, and the trial judge overrules the objection to such argument, this court will not pass on the alleged error, unless the argument complained of constitutes a violation of some constitutional or statutory right of the defendant. Under such circumstances the presumption will be indulged on appeal that the trial judge ruled that such argument was permissible as reply argument, as the burden is upon the appellant to affirmatively show error in the ruling of the trial court.

5. Where improper remarks made by a prosecuting attorney to a jury have been provoked by and are in reply to remarks made by defendant's counsel, such remarks of the county attorney are not ordinarily ground for new trial.

Wallace & Wallace, Sapulpa, John L. Ward, Jr., Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

The plaintiff in error Clarence Lee White, 36 years of age, defendant below, was charged in the district court of Tulsa county, Oklahoma, by information, with the crime of wilfully and unlawfully touching, mauling and feeling of the private parts of Carol Lynette Grant, his stepdaughter, under 14 years of age and more particularly 12 years of age, contrary to the provisions of Title 21, § 1123, O.S.1951. The crime was allegedly committed on March 21, 1952 in the aforesaid county. The defendant was tried by a jury, and found guilty. The jury was unable to agree on the punishment and the penalty was left to be fixed by the trial court. The trial court assessed the punishment of the defendant at 4 years in the State Penitentiary; judgment and sentence was accordingly entered thereon, from which this appeal has been perfected.

The defendant's first contention is that the trial court erred in not sustaining his demurrer to the evidence. This contention is predicated upon the proposition that the state failed to corroborate the prosecutrix' testimony. This is a case of first impression as to Title 21, § 1123, as amended, Laws 1951, p. 60. Herein the defendant seeks to invoke the rule applicable in rape cases such as Louis v. State, 92 Okl.Cr. 156, 222 P.2d 160, 161, wherein the rule is stated:

'While it is the law that a conviction for rape may be sustained upon the uncorroborated evidence of the prosecutrix, it is nevertheless equally well settled that, when such evidence is inherently improbable and almost incredible, there must be corroboration by other evidence as to the principal facts to sustain conviction.'

We are of the opinion that because of the ease with which such charges can be made (as in the Louis case, supra) where a case is weak and fraught with inconsistencies, corroboration of the principal facts should be required. Gullatt v. State, 80 Okl.Cr. 208, 158 P.2d 353; Johnson v. State, 84 Okl.Cr. 368, 182 P.2d 777; Cambron v. State, 86 Okl.Cr. 437, 193 P.2d 888. Herein the defendant predicates his contention of the insufficiency of the evidence on the proposition that the defendant and the prosecutrix' mother had been in considerable marital difficulties, Mrs. White having sued the defendant three times for divorce; and further because the defendant attempted to control the prosecutrix' conduct which the prosecutrix resented admitting that she did not like the defendant and did not want her mother to stay married to him. He thus attempts to bring himself within the case of Louis v. State, supra. But an examination of that case will disclose its inapplicability. In the Louis case the testimony of the prosecutrix was contradictory, inconsistent and definitely repudiated. Moreover it was obtained by duress, intimidation, coercion and fear, and was entirely without corroboration. Such is not the situation in the case at bar. Herein the testimony of the prosecutrix was neither improbable nor contradictory, but to the contrary, clear and convincing, consistent and corroborated as to the defendant's guilt. On the occasion in question the record shows the defendant worked at nights and slept in the daytime, and was at home when the prosecutrix returned home from school. The record further shows the prosecutrix' mother, wife of the defendant, worked with the Southwestern Bell Telephone Company in Tulsa in the daytime and was therefore not at home when the things complained of herein occurred. The prosecutrix related she had come home from school about 3:30 p. m., went to her room to change into her denim pants for play purposes. While she was undressed and entirely nude the defendant intruded with only his shorts on. She testified she pulled a quilt from the bed to cover herself. The defendant, she said, took the quilt from her and started playing with her breasts and her privates and stuck his finger in her private parts. This continued, she said, until the defendant observed it was almost time for him to go and get her mother and got up and went into the bathroom to shave, and later dressed and went after her mother. The prosecutrix testified as to other occasions when these unlawful abuses occurred from September 1951 to March 21, 1952. The first time she said was some time in September 1951 on a Saturday morning. Her story in regard to this situation was as follows:

'Well, I was putting away the towels and stuff, we had just done the laundry and I was putting away the stuff in the home and I noticed this door was open and he was awake, so I went into the room and put the stuff away, into the chest of drawers. * * * And he called me over to the side of the bed and asked me if I loved him and I said, 'I guess so'; and then he got over to one side of the bed, pulled up the sheet and asked me to get in and I did and he said he wanted to talk to me and then he started talking to me about how much he loved the three of us and he said--at the time he was talking, he was rubbing on my back and on my legs and then he went on up and started trying to rub my breasts and I started to get out of the bed and he pulled me back and he said, 'Wait, I am not through talking to you yet,' and then he started talking to me, that he was breeding the dog we had to some other dog that a man had, and then he happened to look at his watch and he saw that it was time for him to go get my mother, so he left it; so he got up and ran into the bathroom and shaved to go get my mother and while he was in the bathroom, he called me to the door. I asked him what he wanted. He said, 'Come in here,' then he took hold of my hand and had me massage him until there was a white discharge and he told me that was what made a woman have a baby.'

On one occasion her stepfather told her not to tell her mother 'because I can go to prison for this and no telling what she might do to you'. On the occasion on March 21 and the other occasions these things occurred she testified she made no outcry though there were houses adjoining on both sides. Nine days after the occurrence on March 21 she told her mother, who thereupon reported the situation to the Tulsa police and the next day her daughter was examined by Dr. J. O. Akins of Tulsa on March 31, 1952.

Dr. Akins' testimony for the state was corroborative of the testimony of the prosecutrix in that it showed there was evidence of trauma and swelling of her labia of the vagina. He said that the condition he found could easily have been produced by the use of the fingers or hand of some one but it could have been caused by a number of other things. He testified it was not possible under the conditions he found to have been the result of a complete penetration of a normal adult male. He said the prosecutrix was a well developed child for her age and that the hymen was in a normal condition of a child of her age and development. He related the condition he found could have been produced as much as a week or more but not as long as 2 or 3 weeks before. He said it was impossible to fix the time the things occurred which produced the traumatic condition of the prosecutrix' private parts.

Further corroboration of the prosecutrix' story is found in the defendant's own admission to the police officers that the prosecutrix would come and get in bed with him while she was nude. This admission he made after being cautioned with reference to his constitutional rights. Furthermore, when Mrs. Beulah Johnson and Police Officer Jim Hart of the Tulsa police department, questioned the defendant he was asked if when she got in bed with him if he used his fingers on the prosecutrix'...