Woodruff v. State
| Decision Date | 23 April 1942 |
| Docket Number | A-10015. |
| Citation | 125 P.2d 211,74 Okla.Crim. 289 |
| Parties | WOODRUFF v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Where no counsel appears, and no briefs are filed, Criminal Court of Appeals will not diligently search the record to discover errors, but will look to the jurisdiction of the trial court, and the sufficiency of the evidence to support the conviction.
2. Conviction for attempt to rape may be had on the uncorroborated testimony of the prosecutrix, but when her testimony is contradictory, inconsistent, and unreasonable and bears on its face inherent evidence of improbability, it is insufficient to sustain a conviction.
3. Conviction of attempt to rape on the uncorroborated testimony of prosecutrix is warranted only when the circumstances surrounding the commission of the offense are corroborative of her testimony and her statements are not contradictory.
4. Where the testimony of the prosecuting witness is self-contradictory and was obtained through fear, threats or coercion, and where such testimony is not corroborated by other competent evidence, a conviction for attempt to rape will not be sustained.
5. The policy of the law is that all persons shall have a fair and impartial trial. It cannot be said that a fair and impartial trial has been had unless the jury have been properly instructed as to the law of the case; and where the instructions do not fully present all the material issues raised, the judgment of conviction will be set aside.
6. On information based on Section 1822, St.1931 of the Penal Code 21 O.S.1941 § 42, charging defendant with an attempt to commit rape, he may properly be convicted of the offense defined by Section 1869, 21 O.S.1941 § 681, of assault with intent to commit rape, or of the offense of assault and battery, and the court should submit the case to the jury for consideration upon every degree of assault which the evidence, in any reasonable view of it, suggests.
7. In a prosecution for attempt to commit rape evidence reviewed and held insufficient to support the verdict and judgment.
Appeal from District Court, Caddo County; Will Linn, Judge.
Herman Woodruff was convicted of the crime of attempt to commit rape, and he appeals.
Judgment reversed and cause remanded with direction to dismiss.
W. H Cooper, of Anadarko, for plaintiff in error.
Mac Q Williamson, Atty. Gen., for the State.
This appeal is from a judgment of conviction, rendered on the verdict of a jury finding Herman Woodruff, "the defendant, guilty of attempt to rape as charged, and fixed his punishment at confinement in the penitentiary for one year," alleged in the information to have been committed in Caddo county, on the 17th day of May, 1940, on Dorothy Hamilton, a female person of the age of thirteen years, and not the wife of the said defendant.
The record shows that upon the defendant's application for a transcript of the proceedings and the testimony taken upon the trial, the court ordered and directed that the same be furnished to the defendant without cost to him, and the petition in error with case-made was filed in this court February 19, 1941, as that of a poor person without cash deposit or security for costs.
It appears from the record that after the jury had been sworn to try the case, counsel for the defendant asked leave to file a general demurrer to the information, for the reason that the information does not state facts sufficient to constitute a public offense. The court ruled: "You are too late, you waived it when you impaneled the jury."
At the close of the state's testimony the defendant interposed a demurrer to the same and moved the court for a directed verdict of acquittal. Both the demurrer and the motion were overruled and exceptions allowed.
The same questions were again raised in his motion for a new trial.
The errors assigned are substantially as follows: That the verdict of the jury was contrary to both the law and the evidence; that the court erred in its rulings in the admission of incompetent evidence, and in giving certain instructions duly excepted to, but no briefs have been filed and no appearance made when the case was called for oral argument and final submission on September 25, 1941; thereupon the case was submitted on the record.
This court has repeatedly laid down the rule that where no briefs are filed and no counsel appears the court will not diligently search the record to discover errors, but will look to the jurisdiction of the court and the sufficiency of the evidence to support the conviction.
Dorothy Hamilton testified that she was thirteen years of age on the 10th day of March, 1940; that she was well acquainted with Herman Woodruff, and had known him for several years, that he had lived as a near neighbor, and that she would often see him on the street; that Mr. Woodruff sometimes gave her money, a nickel or a dime to buy candy or to go to the show; that she went twice to the room where Mr. Woodruff lived, near the Upchurch Hotel, in Anadarko; that school was out in Anadarko May 17, 1940, and she went to Herman Woodruff's room on that day.
She was then asked:
She was then asked about twenty leading and suggestive questions which she refused to answer.
The same question was again asked five times, with no answers:
The same question was repeated seven times, no answer each time.
The same question was repeated several times, no answers.
The same question was asked six or seven times, and no answer.
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