Woody v. State, A-11506

• Decision Date: 28 November 1951
• Docket Number: No. A-11506,A-11506
• Citation: 238 P.2d 367,95 Okla.Crim. 21
• Parties: WOODY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 367

238 P.2d 367

95 Okla.Crim. 21

WOODY v. STATE.

No. A-11506.

Criminal Court of Appeals of Oklahoma.

Nov. 28, 1951.

Syllabus by the Court.

1. In a prosecution for the detestable and abominable crime against nature, committed with mankind or with a beast, evidence of other sex acts between the same parties, or accused and a beast, including evidence of acts committed subsequent to the particular act relied upon for conviction, even though it proves other and distinct offenses, is relevant to show the true relations of the parties to each other, or of man and beast, and to characterize and explain the act for which the defendant is on trial. It is the general desire to satisfy lust that is involved in this class of cases, and this character of evidence tends to show lustful desire and disposition by showing continuousness of the illicit relation. The limits of time over which evidence of this kind may range is largely within the legal discretion of the trial court.

2. Evidence to corroborate an accomplice may be by circumstantial evidence as well as by direct testimony, and the weight of the evidentiary circumstances relied on to corroborate the testimony of the accomplice is for the jury.

3. Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime. It is sufficient if it tends to connect him with its commission.

4. Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to connect the defendant with the commission of the offense, it will uphold the verdict.

5. Where counsel for the defendant is not satisfied with the instructions given by the court and desires additional or different instructions, other than the instructions given by the court, he must reduce such instructions to writing and request that they be given, and a conviction will not be reversed where there is a failure to make such request unless this court is of the opinion in the light of the entire record and instructions, that, because of failure to instruct upon some material question of law, accused has been deprived of a substantial right.

6. Where the facts justify, the court should, as a matter of law, instruct the jury that the witness is an accomplice, and this instruction should be followed by one based on Tit. 22 O.S.1941 § 742, but one may waive the giving of this instruction by failure to request it.

Hunt, Johnson & Fore, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

Cleveland Doss Woody was charged by information filed in the district court of Oklahoma County with the commission of the crime of 'Crime against nature', was tried before a jury, convicted, and the punishment left to be fixed by the court, who assessed punishment of five years imprisonment in the State Penitentiary and costs of prosecution. The case is here on appeal.

The State used three witnesses. The defendant did not testify, and offered no evidence.

George E. Bailey, police detective with the Oklahoma City Police Department, Juvenile Division, testified that he investigated the case at the request of the principal of the Douglas High School, which is a high school for negroes, at Fifth and High Streets, in Oklahoma City. As a result of officer Bailey's investigation the charge against the defendant was filed.

Van Osborne, custodian at Douglas High School, testified that he was so employed on the night of January 31, 1950; that on the evening of said day an adult night school was being conducted and that there was also a basketball game in progress; that it was his duty to make certain rounds of the building and particularly to see that an east door was locked, especially when a basketball game was in progress. The lock on the east door in question could be unlocked from the inside, but not from the outside. This door opened into an outside recessed entrance. In checking the door witness saw through the glass panel some object standing outside, it looked tall and peculiar, and witness stood and watched for a few minutes, and then yanked the door open and the defendant Woody ran past witness into the building. Woody was wiping his mouth; and a young fifteen-year old boy, Herbert Hopkins, was standing on a window jack, or wooden block at an elevation of two or two and a half feet off the floor and was trying to fasten his trousers and clothing over his penis. He had not gotten off the block. Witness had immediately decided what was going on, and stated that he severely lectured the boy, and it is significant that this was without protest or denial from him. Witness further stated that about five minutes after this he saw the defendant in the wash room washing his hands and face. There was no one else around while all this was going on. The figures observed by witness could have been no other than Woody and Hopkins. Witness immediately reported the matter to the principal of the school, who called in the police detective to make an investigation, with results as stated.

Herbert Hopkins testified that he was fifteen years of age; that he was a student in 10B grade, that he knew what it meant to tell the truth; that he lived with his mother; that on the night of January 31, 1950, he saw the defendant Woody at the Douglas High School; that he had known him since in 1949; that Woody asked him to go up on the third floor with him and that he did so, and found two boys up there boxing and playing, so they did not stay there long; that defendant asked witness to go to the east side entrance to the building. Defendant went down first and witness found him inside the door and they went outside the building and defendant lifted witness up on a block of wood, then went to the edge of the building to see if anyone was around, came back and unbuttoned the front of the pants of witness and took out his privates and proceeded by mouth 'to go to work' with the unnatural relations, too revolting to further detail. The record fails to disclose the age of the defendant, but he was large and strong enough to lift witness up on to the wooden block. Witness testified to two previous unnatural acts with the defendant, but the court on objection of counsel for the defendant, apparently out of an abundance of precaution, struck such testimony and admonished the jury not to consider the same.

In this connection, it should be noted that the crime charged, where committed, by statutory provision constitutes a crime regardless of whether the victim consented or did not consent. As was said in Morris v. State, 9 Okl.Cr. 241, 250, 131 P. 731, 734, involving the sex crime of rape: 'We think the correct rule is that, in a prosecution to 'statutory' rape, evidence of other acts of sexual intercourse between the same parties is admissible, including evidence of acts committed subsequent to the particular act relied upon for conviction, even though it proves other and distinct offenses as relevant to show the true relation of the parties to each other, and to characterize and explain the act for which the defendant is on trial. It is the general desire to satisfy lust that is involved in this class of cases, and this character of evidence tends to show lustful desire and disposition by showing continuousness of the illicit relation. However, the limits of time over which evidence of this kind may range is largely within the legal discretion of the trial court.' (Emphasis now supplied.)

It is our conclusion that the reason given for the rule in a case involving rape is equally applicable in a case involving sodomy. The Supreme Court of Oregon had reached a similar conclusion in the case of State v. Young, 140 Or. 228, 236, 13 P.2d 604. The court distinguishes this case from State v. Start, 65 Or. 178, 132 P. 512, 46 L.R.A.,N.S., 266.

Although in the within case, the court struck the question as to other similar acts when the question was propounded by the County Attorney on direct examination, nevertheless counsel for defendant proceeded to open up this subject again on cross-examination, and witness denied that anyone else had ever sucked his penis before, but reiterated that the defendant had done so on two previous occasions.

For reversal counsel urges three propositions:

First: The defendant has been convicted upon the uncorroborated testimony of an accomplice.

Second: 'The trial court erred in its failure to instruct the jury that the witness, Herbert Hopkins, was an accomplice;' and

Third: 'The trial court erred in its failure to instruct the jury as to corpus delicti.'

The charge was filed under the provisions of Tit. 21 O.S.1941 § 886, reading: 'Every person who is guilty of the detestable and abominable crime against nature committed with mankind or with a beast, is punishable by imprisonment in the penitentiary not exceeding ten years.'

Few cases as the within have come before this court. Though our immediate expressions may be classed as unnecessary and useless preachment or diatribe, the writer feels called on to say that a male person on whom such an abominable and pernicious act might be committed perhaps in many cases by reason of the embarrassment entailed and the thought of certain degradation in the minds of acquaintances and the public at large, regardless of his resistance to the act, would not report the same. So it may be that there have been many violations that have not been reported. At any rate, perversion is sufficiently prevelent that the moral forces of our State and Nation should 'view with alarm' and become greatly concerned. The recent book 'Washington Confidential' ¹ presents a documented revelation of shocking and deplorable conditions in Washington, D. C., of perversion practices of...