Woody v. State

• Decision Date: 22 November 1913
• Parties: WOODY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

136 P. 430

10 Okla.Crim. 322, 1913 OK CR 300

WOODY v. STATE.

Court of Criminal Appeals of Oklahoma

November 22, 1913

Syllabus by the Court.

(a) Before this court will review errors in the instructions of the trial court or objections to remarks made by the county attorney in his argument to the jury, unless such errors are fundamental, it must appear from the record that proper objections and exceptions were reserved to them during the trial.

(b) It is the duty of counsel for a defendant to call the attention of the trial court to what they consider to be errors committed during the trial and give the court an opportunity to correct the same at the time that they occur. Counsel for a defendant cannot remain silent and thereby acquiesce in the commission of errors and afterwards be heard to complain thereat, unless such errors are fundamental.

Where a man and a woman are jointly prosecuted for adultery, one of the defendants may be acquitted and the other may be lawfully convicted.

Where the legal evidence in a case conclusively shows that a defendant is guilty, and where the jury could not rationally arrive at any other conclusion, ordinarily errors committed by the trial court in the introduction or rejection of evidence will become immaterial and will not constitute grounds for reversal.

For a statement of evidence which conclusively establishes the guilt of the defendant of the crime of adultery, see opinion.

For evidence which fully sustains the allegation of venue in a case of adultery, see opinion.

Where the record clearly shows that a defendant is guilty as charged, and where the defendant has not been deprived of some substantial right to his injury, this court will not discuss and decide matters of law merely for the purpose of settling abstract questions.

The effect of a conviction upon the family of a defendant cannot be ground for a reversal. Men with families should think of such things before they commit crimes.

Additional Syllabus by Editorial Staff.

A "verdict of not guilty" is simply a verdict of not proven in the particular case tried and is not a verdict of innocence, and hence is not conclusive against the state in favor of any other person than the defendant who was actually acquitted.

In a prosecution for adultery, evidence of a trip made to Kansas by defendant and the prosecuting witness' wife was properly admitted where such trip was a part of the general plan of the parties to have sexual intercourse and tended to explain the purpose of their being together in Oklahoma under suspicious circumstances.

Appeal from District Court, Major County; James B. Cullison, Judge.

W. A Woody was convicted of adultery, and he appeals. Affirmed.

John V Roberts, of Fairview, and George W. Connell, of Clinton, for appellant.

C. J Davenport, Asst. Atty. Gen., for the State.

FURMAN J.

First. In their brief counsel for appellant complain at a number of the instructions given by the court and also complain of remarks alleged to have been made by the county attorney in his closing argument to the jury. Upon an examination of the record, we fail to find that any exceptions were reserved at the trial to the instructions of the court. We also fail to find that counsel for appellant during the closing argument of the county attorney, in any manner, objected to the remarks complained of in the brief and alleged to have been made by the county attorney. We find no fundamental errors in the instructions of the court or in the remarks of the county attorney; and, in the absence of proper objections and exceptions, we cannot consider the matters presented. See Hayes v. State, 4 Okl. Cr. 377, 111 P. 1020; Johnson v. State, 5 Okl. Cr. 13, 113 P. 552; Ford v. State, 5 Okl. Cr. 240, 114 P. 273; Crump v. State, 7 Okl. Cr. 535, 124 P. 632; Bethel v. State, 8 Okl. Cr. 61, 126 P. 698; Ryan v. State, 8 Okl. Cr. 623, 129 P. 685.

Counsel should have promptly brought the matters complained of to the attention of the court at the time of their occurrence and thereby have given the court an opportunity to correct any errors, which may have been made, before they could have possibly harmed appellant. Counsel, being silent, thereby acquiesced in the commission of the errors complained of, even if it is admitted that they were errors. Unless errors committed during the trial are fundamental, counsel will not be heard to complain of that which, with reasonable diligence on their part, they could have prevented or properly incorporated in the record. Convictions in criminal cases will not be reversed upon afterthoughts unless for fundamental errors. It would be unfair to the trial courts and ruinous to the administration of justice to reverse convictions upon alleged errors which were not properly presented to the court below.

Second. Appellant and Anna Boyd were jointly charged by information with the commission of the crime of adultery. Anna Boyd was first tried and acquitted, and the contention is now made that this acquittal operated to discharge appellant as a matter of law. In their brief counsel say: "We insist that where two parties are jointly charged with the commission of an act of adultery, the one with the other, it is impossible for one to be innocent and the other guilty, and for that reason, where the one is first tried separately from the other and found not guilty, it is the duty of the court to discharge the other. This may differ from the ordinary rule, but there is a reason for this being an exception. It is as impossible for the one to be guilty and the other innocent as it is for A. to be guilty of murdering B. and B. still living." No authorities were cited by counsel for appellant in support of this proposition. It is true that the Supreme Court of North Carolina did so hold in the case of State v. Mainor & Wilkes, 28 N.C. 340, and also in the case of State v. Parham, 50 N.C. 416. We think that these decisions are not supported by the reason of the law, and they were in effect repudiated by the same court in the later case of State v. Cutshall, 109 N.C. 764, 14 S.E. 107, 26 Am. St. Rep. 599.

A verdict of not guilty is not a verdict of innocence. It is simply a verdict of not proven in the particular case tried, and it is not conclusive against the state in favor of any other person than the defendant who was actually acquitted. The state might not be able to make proof of the offense in the trial of one party for many causes yet might be able to make proof on the trial of the other. Because there may have been a miscarriage of justice as to one joint offender is no reason why there should also be a miscarriage of justice as to the other joint offender. Again it is true that to constitute adultery there must be a joint physical act, but it is not necessary that there should be a joint criminal intent. The bodies must concur in the act but the minds may not; one may be guilty and the other innocent. A few illustrations will demonstrate this conclusively. Namely, if A., being a married man, should have sexual intercourse with B., a single woman, who was so drunk or demented as to be unable to give her consent, such woman could not be convicted, but A. may be prosecuted and convicted either for adultery or rape. Or if A., being a married man, should marry B., a single woman, who had no knowledge of A.'s previous marriage, B. would not be guilty of any offense but A. might be prosecuted and convicted either for bigamy or adultery. The following cases support the conclusion at which we have arrived: State v. Ellis, 74 Mo. 385, 41 Am. Rep. 321; State v. Caldwell, 8 Baxt. (Tenn.) 576; Alonzo v. State, 15 Tex.App. 378, 49 Am. Rep. 207; Watson v. State, 13 Tex.App. 76; State v. Sanders, 30 Iowa, 582; State v. Donovan, 61 Iowa, 278, 16 N.W. 130; Commonwealth v. Bakeman, 131 Mass. 577, 41 Am. Rep. 248; State v. Eggleston, 45 Or. 346, 77 P. 738; State v. Carrol, 30 S.C. 85, 8 S.E. 433, 14 Am. St. Rep. 883; Solomon v. State, 39 Tex. Cr. R. 140, 45 S.W. 706.

Mr. Wharton says: "One defendant may be acquitted without involving the acquittal of the other."

Mr. Bishop says: "As every offense to be punishable must be voluntary, so in particular must be adultery. But alike in adultery, and it is believed in fornication and incest, where the crime consists of one's unlawful carnal knowledge of another, it is immaterial whether the others participated under circumstances to incur guilt or not, just as sodomy may be committed with a responsible human being, or an irresponsible one, or a beast. Therefore the same act of penetrating a woman, who, for example, is too drunk to give consent, may be prosecuted either as a rape, or as adultery, at the election of the prosecuting power. There are cases which deny this and hold that adultery, fornication, and incest can be committed only with consenting persons, and what is rape cannot be one of the others. But they are believed to proceed partly, and perhaps entirely, on special terms of statutes. Certainly in principle they can have no other just foundation." Bish. Stat. Crimes, § 660.

Third. Objections were made to the action of the trial court in the introduction and rejection of evidence, but, in the light of the testimony in this case, we do not believe that an intelligent and honest jury could be impaneled who, with a due regard for their oaths and the testimony, could legitimately come to any other conclusion than that the appellant was guilty. This being the case, errors committed by the trial court, which could not have altered the verdict became immaterial, and it would be a waste of time for us to discuss them. A conviction will not be reversed except for errors which affected the substantial rights of the defendant. See Ostendorf v. State, 8 Okl. Cr. 360, ...