Wood v. State

• Decision Date: 03 September 1941
• Docket Number: A-9915.
• Citation: Wood v. State, 116 P.2d 734, 72 Okla.Crim. 347 (Okla. Crim. App. 1941)
• Parties: WOOD v. STATE.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

116 P.2d 734

72 Okla.Crim. 347

WOOD v. STATE.

No. A-9915.

Court of Criminal Appeals of Oklahoma

September 3, 1941

Syllabus by the Court.

1. Where one is charged with incest under Oklahoma Statutes 1931, Section 2238, Oklahoma Statutes Annotated, Title 21 Section 885, he may be charged and convicted in three different ways:

First Where parties within the prohibited degrees of kinship intermarry.

Second Where parties within the prohibited degrees of kinship commit adultery with each other.

Third Where parties within the prohibited degrees of kinship commit fornication with each other.

2. An information under the above statute which alleges: (a) that defendant had intercourse with the prosecutrix, (b) that she was a female, (c) that she was the daughter of defendant, and (d) the date when the act was committed, is sufficient as against a general demurrer.

3. Where the above allegations were made it was unnecessary to allege that defendant was a married man at the time the act was committed. It was sufficient if the evidence revealed this fact.

4. Under the above statute, one is guilty of incest where he has intercourse with his daughter either by (a) fornication or (b) by adultery. The gist of the offense is the unlawful intercourse with his own daughter.

5. Evidence which is merely cumulative will not be held reversible error, even though the evidence be inadmissible.

6. Evidence may be admissible on rebuttal that would not have been admissible in chief.

7. Remarks of the court to the jury, after they retire to deliberate, examined, and found not to be prejudicial to the rights of the defendant.

8. Where the evidence of the prosecutrix in an incest case shows her to be an accomplice, it then becomes the duty of the court to so find as a matter of law, and to then instruct the jury that under the statutes of this state her testimony must be corroborated before the defendant may be convicted.

9. Where the evidence of the prosecutrix in an incest case does not show conclusively that she gave her consent and the court instructed the jury as a matter of law that the prosecutrix was an accomplice, and it was necessary that her evidence be corroborated, defendant can not complain of this instruction, as the same is favorable to him.

Appeal from District Court, Payne County; Henry W. Hoel, Judge.

Leonard Wood was convicted of incest, and he appeals.

Judgment affirmed.

Mac Q. Williamson, Atty. Gen., Jess L. Pullen and Owen Watts, Asst. Attys. Gen., and David P. Hervey, Co. Atty., of Stillwater, for the State.

Leon J. York, of Stillwater, for defendant.

BAREFOOT Presiding Judge.

Defendant, Leonard Wood, was charged in the District Court of Payne county with the crime of incest; was tried, convicted and sentenced by the court to serve a term of seven and one-half years in the penitentiary, and has appealed.

Defendant was also charged in 116 P.2d 728, with the crime of rape in the first degree, was tried, convicted and sentenced to serve a term of five years in the penitentiary, and has appealed. These cases, by agreement of counsel and order of the court, have been consolidated and considered together. Defendant was unable to give bond pending appeal and is now confined in the penitentiary at McAlester, and for this reason the cases have been advanced and decision rendered at this time. The facts are very similar in each of the cases, only based upon different acts and at different times. Opinions will be prepared in both cases, but a discussion of the evidence will be had only in this case.

Defendant was charged with the crime of incest. The date relied upon in the information was Saturday, December 30, 1939. It involved defendant's daughter, Leona Wood, who was seventeen years of age at the time of the trial on the 18th of March, 1940. Her testimony was that her father, the defendant, had been intimate with her over a period of three and one-half years, or since she was past thirteen years of age. She testified that on numerous occasions defendant had intercourse with her. In most of these instances she testified that force was used and that he slapped her, pulled her hair, and upon one occasion struck her and knocked her unconscious. She exhibited a large lump on her breast which she stated was caused by a blow by defendant upon one of these occasions. While the evidence is shocking and revolting, it is clear and was heard by a jury who no doubt gave every consideration to the same and every consideration to the defendant, and rendered a verdict of guilty, which after stating that they were unable to agree upon the punishment, added to their verdict the notation, "We recommend leniency." This notation was, as has been often held by this court, not binding upon the court, but in no way should prejudice the rights of the defendant. Estes v. State, 35 Okl.Cr. 335, 250 P. 809; Presnell v. State, Okl.Cr.App., 109 P.2d 834; Severn v. State, Okl.Cr.App., 114 P.2d 181; Albrecht v. State, Okl.Cr.App., 115 P.2d 274.

The court sentenced the defendant to seven and one-half years in the penitentiary. The maximum punishment under the law was ten years in the penitentiary.

The first and main contention of defendant for reversal of this case is that the conviction is not sustained by the evidence and that the court erred in refusing to sustain a demurrer to the evidence and advising the jury to return a verdict of not guilty, it being his contention that the charges were framed by his wife and daughter and were untrue. This requires a brief examination of the evidence.

Prosecuting witness Leona Wood testified that about the time she entered junior high school and when she was past thirteen years of age her father began a course of conduct, first by coming to her bed and being familiar with her, and he explained to her that this conduct was right and that it was her duty to submit to this. That at this time she did not know it was wrong and that she did not know how children were born, but thought they were brought by the stork. She did not tell her mother, who was at home during all of this time.

She afterwards went to church and Sunday school and learned it was very wrong. This was about two years later, but that her father explained to her that her mother was sick and it was her duty to consent. That she did not tell her mother for the reason that he had many times threatened to kill her and her mother and the whole family if she ever told. She kept company with a young man and she told him about it two years prior to the time she told it to the county attorney and these charges were filed. She also told a neighboring lady a short time before the charges were filed, but did not tell her mother until just before the filing of the charges for the reasons above stated. She had also testified to threats by defendant to kill her boy friend if she ever told him, and this young man testified that it was for fear that he would kill Leona that caused him not to tell it. The evidence of the prosecutrix dealt especially with four different occasions when she claimed the acts of sexual intercourse occurred. First, on Saturday, December 30, 1939, this being the act relied upon in the charge in this case; second, on Saturday, December 23, 1939; third, on Mother's Day, in May, 1939; fourth, on Sunday following July 4th, 1939. There were other occasions, but these are the dates of the main acts about which evidence was given.

The assault on the 30th of December, 1939, occurred on Saturday afternoon at home when she and her father were there alone. Her mother had gone to the doctor's office and her little sister had been given money by the father to go to a show. They left about 2:30 and did not return until about 5 p. m. She also recalled an assault after that time and on January 13, 1940. The assault on December 23, 1939, also took place at home and was consummated after pulling her hair and slapping her and forcing her to have intercourse with him. The assault on July 23, 1939, occurred after he had taken her mother to Shawnee to attend the funeral of her mother. It was after his return from Shawnee and when no one was there but her. She testified two acts of intercourse occurred that day. Her younger sister was visiting a girl friend and was not home when he returned, but was there at night, but he sent her into another room and closed the door.

The assault on the Sunday following July 4, 1939, occurred at her home when she and her father returned from the Cushing Country Club about 6:30 p. m. He had been playing golf and they returned to the home with the father and mother of her boy friend. She had a date with him for 6:30, and he made her call him over the phone and postpone the date until later in the evening.

The assault on Mother's Day in May, 1939, occurred while her mother was visiting her sister at Hugo. Her father had been planning to make the trip, but made an excuse that he was sick and stayed at home. He went to Hugo the following day.

After testifying to these specific dates and occurrences she stated:

"Q. How long has this course of conduct been carried on? A. Ever since in May when I was thirteen.

Q. What year was that? A. 1935, I believe.

Q. Has he acted about the same way as you have described? A. Yes, sir, all the time, it is the same manner.

Q. Have you ever discussed this matter with your father? A. Yes, sir, he threatened me so many times and I tried to have talks with him.

Q. Did he give you any explanation as to why he was doing it? A. Yes, sir, he said all daughters had to do it, that this was part of growing up, and I was so young I didn't know.

Q. When did he tell you that? A. When he first started, he said that was part of growing up. After I had my first menstrual period, that he said that

...