Williams v. State
| Citation | 268 P. 329,40 Okla.Crim. 303 |
| Decision Date | 25 June 1928 |
| Docket Number | A-6214. |
| Parties | WILLIAMS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Record examined, and evidence held sufficient to sustain the verdict and judgment.
In a prosecution for rape upon a female under the age of consent where the evidence for the state discloses that the prosecutrix, as a result of intercourse with defendant became pregnant and gave birth to a child, evidence of the birth of such child is admissible as tending to corroborate the prosecutrix as to the fact of intercourse. Where in such case the prosecutrix is called as a witness for the state her appearance on the stand with the child, about 6 months of age, in her arms, is not prejudicial, especially where upon objection the child is removed from the courtroom and no comment upon the appearance of the child is made.
In a prosecution for rape, where there is evidence of more than one act of sexual intercourse, the trial court should require the prosecution to elect upon which of such acts it will rely for a conviction. It is not essential that such election be made until the close of the evidence, and, if not made by the prosecution, the court should by instruction limit the jury to a consideration of one particular act as a basis for a conviction and should limit proof of other acts as corroboration, or as showing the relation of the parties.
Where a prosecution upon a charge of rape has been had which results in a mistrial, the case stands as if no trial had been had. Upon a subsequent trial, the state may elect a different act of intercourse from that elected in the former trial upon which it will rely for a conviction.
Objections to alleged errors committed during the course of the trial must be made in apt time so that the trial court may avoid or correct them. When this is not done, they are treated as waived. It is too late to complain after the verdict.
Appeal from District Court, Nowata County; C. H. Baskin, Judge.
Earl Williams was convicted of rape in the first degree, and he appeals. Affirmed.
Sams & Raymond, C. F. Gowdy, all of Nowata, and Chas. Bucher, of Coffeyville, Kan., for plaintiff in error.
Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Nowata county on a charge of rape in the first degree, and was sentenced to serve a term of 15 years in the state penitentiary.
This is a second trial; the former having resulted in a mistrial. The record discloses that at the time charged defendant was 23 years of age; Ethel Franklin, the prosecutrix, was 13 years of age at the time. She is a sister of defendant's wife. Several acts of intercourse are testified to. The act relied upon for a conviction is testified to have occurred on July 27, 1924. The prosecutrix gave birth to a child on May 10, 1925. Various circumstances are testified to by witnesses for the state showing opportunity and corroborating prosecutrix as to her being at the home of defendant, where the various acts are testified to have taken place. Defendant denied the testimony of prosecutrix and offered evidence of previous good reputation and some further testimony. The testimony differs from the usual rape case in several particulars: There is no showing that the prosecutrix had opportunity for sexual intercourse with any person other than defendant. No ill will between members of the family, nor motive for a false accusation is suggested. So far as is apparent from an examination of the record, there is nothing inherently improbable or unreasonable in the testimony of prosecutrix, but it appears to be that of an unsophisticated young girl. The evidence for the state is ample to sustain the conviction. The evidence for the defense sharply conflicts with it. The weight of this evidence and the credibility of the witnesses was within the exclusive province of the jury. We perceive no reason why this court should disturb the judgment by reason of any insufficiency in the evidence.
The first assignment of error argued is of misconduct of the special prosecutor, who had been county attorney at the time the case was filed. This assignment is directed to the calling of the prosecutrix to the stand having in her arms the baby referred to in the evidence, which at the time was about 6 months old. Just prior to this, counsel in the judge's chambers had discussed with the trial judge the admissibility of the baby as an exhibit, and the court indicated that he would exclude such evidence. No record of this informal discussion was made, but later upon request the court made a statement for the record as to what took place, stating the substance of what occurred, and that the discussion was informal and no motion or objection made. Upon an objection to the presence of the child in court, the objection was sustained and the child removed from the courtroom. There is a division in the authorities as to the propriety of permitting the exhibiting of a child claimed to be the result of unlawful intercourse as in a rape case or a proceeding in bastardy. 22 R. C. L. "Rape," p. 1202, says:
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