Opinion
No. A-9207.
August 13, 1937.
(Syllabus.)
1. Rape — Insufficiency of Uncorroborated Testimony of Prosecutrix to Sustain Conviction. Under the laws of this state, conviction for statutory rape may be had on the uncorroborated testimony of the prosecutrix; but when her testimony is contradictory, inconsistent and unreasonable, and bears upon its face inherent evidence of improbability, it is insufficient to sustain a conviction.
2. Rape — First Degree Rape by Male Over 18 on Female Under 14. Rape committed by a male over 18 years of age upon a female under the age of 14 years is rape in the first degree; and the offense may be either with or without the female's consent.
3. Witnesses — Statutory Rape — Evidence of Specific Acts With Another Man Inadmissible to Impeach Credibility of Prosecutrix. In prosecution for statutory rape, evidence of specific acts of similar unchaste conduct with another man is inadmissible as bearing upon the credibility of her testimony.
4. Same — Credibility of Prosecutrix Impeachable by Proof She Made Statements Contrary to Her Testimony. In prosecution for statutory rape, the credibility of the prosecutrix may be impeached by proof that she made statements relative to the issues contrary to what she has testified to on the trial.
5. Rape — Statutory Rape — Evidence Showing Destruction of Hymen — Right of Defendant to Show Prosecutrix Had Improper Relations With Another Man. In prosecution for statutory rape, where the state introduces evidence showing destruction of the hymen, the defendant has the right to show that prosecutrix had improper relations with another man about the time when she claims the defendant had intercourse with her, in order to account for her condition compatible with his innocence.
6. Same — Insufficiency of Uncorroborated Testimony of Prosecutrix to Sustain Conviction Where Obtained Through Fear or Duress. Where the testimony of the prosecutrix was obtained through fear, coercion, or duress, and where such testimony is not corroborated by other competent evidence, as to the commission of the offense, a conviction for statutory rape will not be sustained.
7. Same — Opportunity not Corroboration of Testimony of Prosecutrix. In a prosecution for statutory rape, opportunity may be considered as one of circumstances, but it is not corroboration, and cannot be considered on subject of corroboration.
8. Same — Absence of Hymen Eight Months After Alleged Rape not Corroboration. Proof of absence of hymen eight months after alleged statutory rape held not to constitute corroboration of prosecutrix.
9. Same — Competency of Testimony Tending to Show Defendant's Previous Good Character. Testimony tending to show the defendant's previous good character as a law-abiding citizen is competent in order to show that it was unlikely that such a person would commit such a crime.
10. Same — Conviction for First-Degree Rape not Sustained. In prosecution for rape in the first degree, evidence reviewed and held insufficient to support the verdict and judgment of conviction.
Appeal from District Court, Pontotoc County; Tal Crawford, Judge.
W. L. Self was convicted of rape in the first degree, and he appeals. Reversed, and defendant discharged.
This was an information for rape upon the person of Christine Self, of the age of 13 years, by the defendant, her father.
A statement of the case and the material testimony is as follows:
The crime is charged to have been committed in Pontotoc county on or about the 30th day of June, 1935.
It appears that appellant was 41 years of age at the time the crime is alleged to have been committed and was the father of five children, three boys and two girls. Lenora, the youngest, eight years of age.
The prosecutrix testified that in the month of June, 1935, they were living at Harden City, Pontotoc county, before that lived at Centralia, Okla., and before that at Horatio, Ark., and they had lived at Tell, Tex. She further testified as follows:
"Q. Did you father ever have sexual intercourse with you? A. Yes, sir. Mr. Grigsby: Objected to as leading and suggestive and move that it be stricken. The Court: Objection overruled. Exception. Q. Just state to the jury about how old you were when the first act of sexual intercourse occurred? A. Why, I was around nine or ten years old. Q. State to the jury at what place you lived at that time? A. That was at Tell, Tex. Q. Now, Christine, state to the jury approximately how many times, or if you don't know, state whether or not he had had sexual intercourse with you numerous times? A. Yes, sir, he has. Q. Now, when you moved down to Harden City, how long did you stay there, if you remember? A. I don't remember. Q. Did you ever go to church while you lived down there? A. Yes, sir. Q. Do you remember anything that happened one night when you went to church? A. Yes, sir. Q. State to the jury what happened on that night if you remember? A. We went to church, and on the way back he attacked me. We were all going back home and my brother ran off and left us and my little sister ran off with him and I could not leave my father, he wanted me to wait and walk with him, we walked along on the way home and he attacked me. Q. When you say he attacked you, you mean he had sexual intercourse with you that night? A. Yes, sir. Q. Did he ever tell you what he would do to you if you told about it? A. Yes, sir, he said he would kill me if I ever told it. Q. And after you left Harden City where did you go? A. We went to Tell, Tex. Q. State to the court and jury whether or not your father had intercourse with you while you were at Tell, Tex., at that time? A. Yes, sir. Q. Now, after you left Tell, Tex., where did you go? A. We went to Ti, Okla., in Pittsburg county. Q. And, Christine, were you living at Ti, Okla., when you came to my office sometime in February? A. Yes, sir, we were there. Q. At that time state who you were living with besides your father and mother and the smaller children? A. My oldest brother and his wife were with us. Her name is Lucille. Where have you been living recently, Christine? A. have been living at Horatio, Ark. Q. Now, Christine, tell the jury approximately what time it was that you first told any one of this relationship, and tell the jury who it was that you told about it? A. I first told my mother and sister-in-law. Q. When was that with reference to the time you came to my office in February? A. Well, I think it was about a week before. Q. How come you to tell your mother and sister-in-law about this? A. They came in and asked me. Q. Now, Christine, have you ever had a date with a boy? A. No, sir. Q. Have you ever had intercourse with any other man except your father? A. No, sir. Q. Christine, where did you sleep when you were down at Ti Valley? A. With my mother and father. Q. Now state what happened there in bed? A. Well, when, how come my mother to get suspicious, my father woke her up reaching across her and he said he was trying to wake me up and my mother said she could not believe her eyes and said she could feel his arm across her and said that she knew it was his arm, but she could not believe it was so. Mr. Grigsby: We object to what the witness' mother said. Q. Did he ever make any other advances while in bed at any time? A. None that I remember of. Q. To refresh your memory, I will ask you if one morning just after your mother had gotten up that you jumped out of the bed and ran into another room? Mr. Grigsby: We want him to establish the time. The Court: It was the same place and about the same time? Q. That was at Potter's house down at Ti? A. Yes, sir. Q. What happened then? A. He attacked me and I got up. Q. State to the jury what you mean by attacking you, tell the jury what he did? A. He just tried to force me to have intercourse with him. Q. State to the jury, did he put his hands on you? A. Yes, sir. Q. Was it on your legs? A. Yes, sir. Q. Near your private parts? A. Yes, sir. Mr. Grigsby: We object to the question because it is leading and suggestive and move that it be stricken. The Court: Objection overruled. Exception. Q. Now, Christine, state what you did at that time? A. Well, I just jerked loose from him and got up and went to the kitchen where my mother was. Q. It was before the time you told your mother about various acts of intercourse with your father? A. Yes, sir. Christine, have you ever menstruated? A. No, sir."
Cross-examination:
"Q. You think you moved to Harden City sometime in June, 1935? A. Yes, sir. Q. You know about what time you left there? A. No, sir, I don't. Q. Now, who was with you out there at Harden City — who lived there besides you and your mother and your father? A. My brother was there and I don't remember whether John Miller was there or not. Q. Just tell the jury what relation they are to you, John and Ernest Miller? A. They are first cousins. Q. About how old is John Miller, if you know? A. He is 21 or 22, I think. Q. How old is Ernest Miller, about? A. I think he is around 17 or 18 years old. Q. Now how long have John and Ernest Miller lived with you and your family? A. They would just come and go. Q. Did they have any particular home of their own? A. No, sir. Q. Didn't you tell your mother and in the latter part of March, I believe it was, didn't you confess to her that your father was not guilty of this crime? A. No, sir. Q. Didn't you tell her that John Miller forced you to go and tell Lucille that your father was guilty in the first place? A. No. Q. Now, don't you know that you confessed to your mother down there at Horatio, Ark., and this particular time that I am speaking of, that John Miller had had intercourse with you? A. No, sir, I did not. Q. I will ask you if these questions were asked you at the preliminary hearing and you gave these answers? A. Some of it I did. Q. I want to ask you if this isn't your testimony: 'A. He attacked me in bed one night,' referring to your father? A. Yes, sir. 'When was that' (interrupted). Q. Just a minute — I am reading your testimony given at the preliminary trial — Q. 'When was that? A. At Ti. Q. What did he do? A. He was sleeping on the back side and I was on the front side, he reached clear across mother and my little sister. Q. Did she wake up? A. She wasn't asleep. Q. Did she say anything then? A. No, sir, he left next morning and she asked me about it after he left.' Is that what you testified to? The Court: Mr. Grigsby, you asked the court to instruct the jury not to consider that part of the testimony. Mr. Grigsby: I am not asking what someone told her, I am asking her if this was not her testimony on the preliminary hearing. The Court: Then, Mr. Grigsby, read all of it. The Court: That was at the time your mother — your mother told you that afterwards? A. Yes. sir. Q. Were you asleep? A. Yes, sir. Q. And you didn't wake up? A. No, sir. Q. All you know is what your mother said about that? A. Yes, sir, that is how come her to come to me and ask me about it."
Dr. Catherine Brydie, a lady duly licensed and practicing physician, testified that she made a physical examination and "found evidence which would show she had been out with some man." On cross-examination she stated: "I did not find any evidence of any hymen, which isn't always positive."
Dr. C. F. Needham testified that at the request of the county attorney he made an examination with Dr. Brydie, and found that she had had sexual intercourse with some man.
John Miller testified that last June, 1935, he was living with the defendant at Harden City; that one night he went to church with the defendant, his son Robert, and his daughter Christine; that he left the church with Robert first and the defendant came home with Christine; that he had been at home about 30 minutes when they returned. On cross-examination he stated: That he was a nephew of the defendant's wife, and had made his home with the Self family about two years prior to that time; that he moved with the Self family from Ti to Horatio, during the latter part of March this year. He was then asked:
"Q. When you were at Ti didn't you confess to Grover that W. L. Self might get the death penalty for this and that you didn't want to see an innocent man die, and that you had ribbed this thing up and threatened Christine and made her go and tell Lucille Self, so that she would tell Mrs. Self and that you yourself had been having sexual intercourse with her for a number of years?"
He answered: "I did not."
He was then asked:
"Q. When you got down to Horatio, Arkansas, didn't you make that confession to Grover Self and Sylvester Self, down there when you were on the lake because you were afraid that W. L. Self had caught up with you monkeying with his daughter and that he might kill you?"
He answered: "No, sir."
He was then asked:
"Q. Didn't W. L. Self, this old man, sitting here, come in and talk to you about it several times that he had suspicioned something between you and Christine and that you had better put a stop to that? He answered: No, sir. Mr. Stanfield: I want the record to show that Mr. Grigsby has made the witness his own witness for the purpose of direct examination. The Court: All right, the record may so show. Q. Did you know that Sylvester Self came up here when the complaint was filed to arrest him? The Court: Just ask him the questions you desire to be answered, what are you trying to do? Mr. Grigsby: I am trying to ask this witness if this isn't his testimony which he gave at the preliminary hearing. The Court: The witness has not denied any part of his testimony yet and you have no right to ask him about that, unless he has denied he made those statements in the preliminary examination. Mr. Grigsby: For the purpose of refreshing the witness's memory, I will ask him this question: The Court: Do you know who caused W. L. Self to be arrested? Mr. Stanfield: Please qualify that as to time, as to whether or not it is the case now on trial or the one in Pittsburg county? A. Sylvester Self had him arrested. Q. Let me ask you this question: Did you go to Hartshorne and get the law and bring them out there? Mr. Stanfield: We object to Mr. Grigsby leading the witness. This is his witness. The Court: The objection is sustained. Mr. Grigsby: Give us an exception to the ruling of the court. Mr. Stanfield: That is all. The state rests."
The defendant demurred to the evidence and moved the court to instruct the jury to return a verdict of not guilty for the reason the evidence is insufficient to warrant a conviction. Overruled. Exception.
On the part of the defense, Mrs. Veda Self, wife of the defendant, testified that they had been married 24 years; that Lucille, her son Sylvester's wife, informed her that Christine told her that her daddy was having sexual intercourse with her; that they were living at Ti at the time, which was about the 26th day of February, 1936; that she talked with her son Sylvester and then talked to his father about it. She was then asked:
"Q. Then what was said there, if you know? Mr. Stanfield: We object to any conversation with W. L. Self, the defendant, that she had. Objection sustained. Exception. A. He threatened to whip Christine, he threatened and we objected to that and we told him he could not whip her."
That since the preliminary hearing, about the 3d day of March, she talked to Christine about this criminal charge against her father, and Christine told her that she had intercourse with John Miller. That later John Miller and her sons Sylvester and Grover came to her and Grover said:
" 'John has got something he wants to tell you.' She said: 'What do you want to tell me, John?' and he hung his head and said: 'Uncle Logan is not guilty of this crime' — He said: 'I am ashamed of myself and I have thought this thing over.' That she asked him what made him do this, and he said: 'Well, because I was afraid of Uncle Logan.' And he said 'That he had threatened him heavily and I went and made Christine tell Lucille that Uncle Logan was to blame, to get him out of the way.' Mr. Stanfield: We object to what she said to John Miller. The Court: Objection sustained. Exception."
That John Miller left immediately and has never been back at her place.
She further testified:
"Q. Did you say anything to Christine about what John Miller had told you? A. Yes, sir. Q. What was her reply to that? A. She said she was afraid of her daddy because he would whip her if he knew about her and John. That before the trial she told the county attorney what she had found out about Christine and John Miller. Q. And what did the county attorney say when you and W. S. told him? A. He threatened W. S. with the law."
On cross-examination she stated that she left Ti about the first of April. She was then asked:
"Q. Now, you remember when Clyde Kiser and Miss Kitty Bowen came to your place last Saturday afternoon to talk to you about this case? A. Yes, sir. Q. And I will ask you if you didn't state in my presence and in the presence of Clyde Kiser and Miss Kitty Bowen that you thought W. L. Self, the defendant here, should have some time, but that you didn't want him to have the electric chair? The Court: Just answer the question pleas — did you make that statement to the sheriff and county attorney? A. I asked them if they thought he was going to get the electric chair. The Court: Did you make that statement to the county attorney and the sheriff that you thought W. L. Self should have some time, but that you did not want him to have the electric chair? A. I asked them: Do you think he is going to get the electric chair and you said (county attorney) 'That will be left up to the jury.' The Court: Did you make the statement to these men last Saturday? Just answer the question 'yes' or 'no' — Did you tell them that or not? A. I asked the county attorney if he thought they were going to give him the electric chair. The Court: I suppose you will have to let her answer it in her own way. Mr. Stanfield: The court can force her to answer it 'yes' or 'no'. The Court: Did you make that statement to the sheriff and county attorney last Saturday that you thought he, W. L. Self, should have some time, but you did not want to see him get the electric chair? A. If I did I don't remember. The Court: Then you should say so. A. If I did have such talk I don't remember. Q. How come you to get interested in the case this morning? A. I came to see about my little girl and take her back. Q. Is that the reason you testified that this affair going on between her and John Miller — is this the first time you became interested in this case? Mr. Grigsby: Objected to as incompetent, irrelevant and immaterial. Q. Did you say 'yes'? A. Yes, sir."
William Sylvester Self testified that he and his wife lived in the same house with his father and mother at Ti; that when his mother told him about it they called papa into the room and asked him about it; that when he told him what Christine had said his father said it was a damn lie; that he filed the complaint with the county attorney of Pontotoc county; that John Miller had been living with them for about twelve months; that on March 22, at Ti, he talked to John Miller about the guilt or innocence of W. L. Self; that he told Miller he was accused of this himself, and if he knew anything about it he had better tell it. Miller said he knew nothing about it. That on March 24th, this year, they moved to Horatio, and there with his brothers John and Grover had a conversation with John Miller, when they were down on the lake fishing. He further testified:
"Q. Now, just tell what John said about it? A. He said he didn't feel like it was his place to sit there and see an innocent man go to the electric chair over it. Q. Is that all he said? A. He said he had done wrong; he would tell us about it if we would not jump on him, we figured it was something like that and we told him that we would not say anything and we would not bother him and he said that he would leave. He further said that he had threatened Christine and had gotten her to go and tell Lucille that father was guilty and furthermore that he was afraid that if he didn't do that, he would lose his life — that papa had suspicioned him and also if he found out that he was guilty of this, that papa would kill him. Q. What else did John say with reference to he and Christine or anything else that you know of? A. Well he said he was the one that was guilty himself. Q. Did he make any explanation of that or go any further or just say that he was guilty? A. Not that I remember of. We went to the house from there. Q. Who did? A. Grover, John and me. Q. What did you go to the house for? A. We went to tell mama about it. Q. What was said there at the house, if you know — that is by John Miller? A. He just walked up to the house and hung his head and begin to cry and said: 'Aunt Veda I am ashamed of myself for what I have done. Uncle Logan is not guilty of this crime and I had Christine to go to Lucille and tell her that Uncle Logan was guilty because I was afraid he would kill me if he found out.' "
Cross-examination:
"Q. I will ask you if it isn't a fact that you told me when you came up here that your wife had gone to you and put you next to what was going on? A. Yes, she is the first one that mentioned it to me. Q. And state whether or not you did not tell me that you were in one room; that is, in the kitchen one morning when your sister jumped up and run out by you hollering 'quit'? A. Yes, sir. Q. Now, I will ask you whether or not you told me that the night your father got in from Mounds that your mother and he was out at the barn, and you heard your mother scream and you went out there and your father was running her to the house. Objection overruled. Exception. A. I don't remember that if I did. Q. Did that happen? A. Not exactly that way. Q. Well then, how did it happen? A. She came running into the room in the house from the barn. Q. Didn't you tell me that she was scared to death, and I will ask you further if it isn't a fact that your brother, Robert, picked up a gun there that night and stopped him? Mr. Grigsby: We object to that question for the reason it has nothing to do with this case and is highly prejudicial and is designed for the purpose of inflaming the minds of this jury. The Court: The witness has not testified to any of that and it would be improper cross examination. Just ask him if he testified to that state of facts before Q. I will ask you this question: Did your father state at that time that he was going to kill the whole bunch and himself too? A. He did. Q. And the truth of the business is that you took Christine Self out of this jurisdiction, didn't you? Mr. Grigsby: We object to the question for the reason it is incompetent, irrelevant and immaterial. Does not prove or tend to prove any issue in this case and is highly prejudicial. The Court: Objection overruled. Exception."
Grover Self testified that he lives at Ti; that he did not move down near Horatio, but was down there about March 25 for three days and was present when John Miller had a conversation with Sylvester, while they were down at the lake fishing; John Miller said:
" 'Boys, I have got something to tell you if you won't beat hell out of me'. We said, 'All right, let's hear it.' He said, 'Your father is being put to death for something he does not deserve.' We asked him how he went about getting W. L. Self into this and he said that he threatened Christine and had her to go to Lucille and tell her that W. L. Self did this, and she went to Lucille and told her this. Q. He was then asked: All right, then what happened to John, what did you do from that on? The Court: Don't tell what you said; just tell what you did. A. Well, we goes to the house, Sylvester, John and I, and goes in where mama was sewing and John said, 'Aunt Veda, I have got something to tell you.' Q. What did he tell your mother if you remember? A. He started to crying and said, 'Uncle Logan is an innocent man and I am the cause of all of this.' He said, 'I told Christine to do this, I had her to go to Lucille and tell her this because W. L. had caught me.' "
On cross-examination he was asked:
"Q. Did you tell Christine Self what John Miller had said? A. No, sir. Q. Did you confront her with John Miller? The Court: Objection overruled. Exception. The Court: Q. Did anybody ever tell Christine that John Miller had confessed to having had intercourse with her, that you know anything about? A. No. sir, I don't believe they did. Q. I believe you say that John Miller said that W. L. Self, the defendant here, your father, had caught him? A. Not in the act, but he thought that W. L. had caught him."
As a witness in his own behalf, the defendant denied that he ever had sexual intercourse with the prosecutrix, he denied having had improper relations of any kind with her, and that he never at any time mistreated his daughter, Christine, in any way.
He further testified:
"Q. How old a man are you, Mr. Self? A. I am 41 years old. Q. How many children are there in your family? A. There are five living and one dead. Q. They have you charged with raping and carnally knowing Christine Self on or about the 30th day of June, 1935, down on Sheep Creek close to Harden City in this county — is that true or not? A. It is not true — I am not guilty, if that is what you have reference to — furthermore, I wasn't even at home along about the 30th day of June. Mr. Stanfield: We object to the answer and ask that it be stricken and the jury admonished not to consider the same. The Court: Don't make any statements, except to answer the question — gentlemen of the jury, you will not consider the last statement made by the witness."
Cross-examination:
"Mr. Stanfield: Q. Mr. Self, you were in the McAlester or the Pittsburg County jail when the sheriff and I came after you, were you not? Objected to as incompetent, irrelevant and immaterial and prejudicial. The Court: Objection overruled. Exception. Q. I will ask you if you did accompany the sheriff and myself to Pontotoc county? A. I did. Q. And I will ask you then and there if I did not read the statement which purported to be that statement made by Christine Self? A. You mean you did? Objection as incompetent, irrelevant and immaterial. The Court: I think that is proper cross examination. The objection will be overruled. Exception. Q. I will ask you to state to this jury whether or not. on your way from my office and on the way to the jail you didn't make this statement: 'The God in Heaven knows that I did not open her up?' A. Yes, sir. Q. I will ask you to state whether or not that you ever caught or suspicioned John Miller before you were arrested? A. I did. Q. I will ask you to state whether or not I asked you coming up here if you did not attend church down there at Harden City while you were there and you answered in the affirmative? A. Yes, I have. Q. And I will ask you if I asked you at that time on the way up here if you did recall a night on which you went to church and John Miller and Robert, your son, were on ahead of you and Christine Self and you and Christine came on behind them home and you said, 'yes, sir'? A. I didn't do that. Q. You did not say that? A. No, sir."
Dr. Waddell testified that he was pastor of the church at Harden City, and was familiar with the general reputation of W. L. Self in the community in which he resided in June, 1935, as a law-abiding citizen, and that it was good.
Jim Abbott testified that he was pastor of the Onward Church across Sheep creek, and the defendant attended his meetings every night; that his general reputation was good and he was just as fine a man he ever met at that time.
Homer Smith testified that he had known the defendant about 32 years and during that time had known his general reputation in the community in which he resided as being a law-abiding citizen, and that it had always been good.
In rebuttal, Bowen testified that she is stenographer in the county attorney's office; that she went with Clyde Kiser, sheriff, and the county attorney to Arkansas last Saturday, stopped at the home of Mrs. W. L. Self, and Christine Self came back with them; that just before they left while Christine was getting into the car, Mrs. Self said that she hated to see Mr. Self go to the electric chair, but thought he should have some time.
Clyde Kiser, sheriff, against the objection of defendant, testified that he heard Mrs. W. L. Self make the statement that she hated to see W. L. Self go to the electric chair, but that she thought he should have some time. On cross-examination he stated he lives seven miles northeast of Ada; that Christine Self had been in his custody, at his house, since she returned with him from Arkansas.
The prosecutrix, recalled, testified as follows:
"Q. You remember the time when your mother was out at the fence just before we left? A. Yes, sir. Q. State to the jury whether or not you heard her make this statement there when you were sitting in the car with Miss Kitty Bowen that she didn't want to see your father get the electric chair, but that he did deserve some time? A. Yes, sir."
W. L. Self, the defendant, recalled, testified:
"Q. You heard Christine Self just testify, didn't you, that you had never caught her or suspicioned her having any sexual relations or affairs with John Miller? A. I heard her say that, but I have. Q. How many different times have you done that? A. About three different times. Q. And what did you do on those different occasions? A. I called John Miller off and asked him if he was mistreating my daughter and he denied it, and I told him if I found it out, I will run you out of this country, but he said he was not and that was at Harden City one night when we lived there in this little trailer house."
The transcript of the record covers more than two hundred pages, but the foregoing statement is sufficient to determine the questions presented on the errors assigned and relied on for a reversal.
Grigsby Andrews, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
This appeal is from a judgment of conviction for rape in the first degree and sentence in accordance with the verdict of the jury for the term of 99 years in the penitentiary. The information filed in the district court of Pontotoc county March 3, 1936, charges that in said county on or about the 30th day of June, 1935, the defendant, W. L. Self, accomplished an act of sexual intercourse with one Christine Self, a female under the age of 14 years, and not the wife of said defendant.
On reading the evidence, and carefully considering the proceedings on the trial, our conclusion is that the judgment in this case cannot be permitted to stand. The conviction rests solely upon the uncorroborated testimony of the daughter of the defendant, the female with whom the incestuous intercourse is alleged to have been committed. In the view we take of the record and the duty devolving upon this court as to the disposition to be made of the case, it is unnecessary to discuss and determine questions arising upon the rulings of the court in relation to matters occurring preliminary to the trial upon the merits.
The principal assignment of error is that the evidence is insufficient to sustain the verdict or support the judgment of conviction. Other assignments relate to rulings of the court in admitting incompetent and prejudicial testimony and in the exclusion of competent testimony, and that the instructions given by the trial court incorrectly state the law of the case.
The record shows that nearly every objection to evidence made by counsel for the defendant was overruled and nearly every objection of the county attorney to evidence offered by the defendant was sustained, and most of the rulings of the court upon the evidence are erroneous.
It is a well-established principle of criminal jurisprudence that incompetent, irrelevant, and immaterial evidence which tends to excite the passions, arouse the prejudices, and awaken the sympathies, or warp or influence the judgment of jurors in any degree, cannot be considered as harmless.
While a conviction for statutory rape may be had on the uncorroborated testimony of the prosecutrix, this is only warranted when all the other facts and circumstances of the offense are corroborative of her testimony and her statements are not inconsistent or contradictory. Without such surrounding facts and circumstances, the bald statement of the prosecutrix against the defendant would be so devoid of testimonial value as to render it unworthy of belief.
In the early case of Morris v. State, 9 Okla. Cr. 241, 131 P. 731, 735, we said:
"This court does not hold with some that, as a matter of law, rape cannot be established by the uncorroborated testimony of the prosecutrix, but in common with all courts recognizes that, without such corroboration, her testimony must be clear and convincing. And, where the testimony of the prosecutrix bears upon its face inherent evidence of improbability, there should be corroboration by other evidence, connecting the defendant with the commission of the crime. The law is that the life or liberty of a citizen shall be taken only in case the right to do so is established beyond all reasonable doubt; and while there is no rule of law which forbids a jury to convict of rape on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony, yet the courts have always recognized the danger of conviction on her uncorroborated testimony, and the testimony of the prosecutrix, if inherently improbable and uncorroborated, will not justify or support a conviction; as the only reasonable conclusion in such cases is that such verdicts are the result of passion or prejudice, and therefore contrary to law."
In the case of Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617, this court held:
"Under the laws of this state, conviction for rape may be had on the uncorroborated testimony of the prosecutrix; but when her testimony is contradictory, and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is not sufficient to warrant a conviction."
In the case of Witt v. State, 29 Okla. Cr. 357, 233 P. 788, 789, it is said:
"But a charge of rape is one, as has often been said, following the admonition of Lord Hale, 'that this is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, though ever so innocent.' The charge is one that arouses the passions and prejudices of jurors, and for that reason it is the duty of the court to closely scrutinize the evidence, and where the evidence of the state is unreasonable, inconsistent, and contradictory, and there is inherent evidence of improbability or indications that the prosecution is maliciously inspired, the court should not permit a conviction to stand."
In Palmer v. State, 7 Okla. Cr. 557, 124 P. 928, this court held that corroboration is likewise necessary where the testimony of the prosecutrix is obtained through fear, threats, coercion, or duress.
The record shows that the county attorney in his opening statement to the jury stated:
"That the defendant and his family were living down at Ti, and his married son was living with him; that about a week before the filing of this complaint the defendant made a trip up in the northern part of the state, that while he was away on this trip, his daughter-in-law, Lucille Self and his wife got to questioning the girl — the actions of the defendant and Christine Self had aroused the daughter-in-law's suspicion, but when asked about it she, Christine Self, denied it, that is, she denied it at that time, but she was brought to my office on the 26th day of February and after long examination of witnesses and the doctor's examination here, and going into the history of the case from start to finish, I filed the complaint and had a preliminary hearing."
Thus it appears, and the record shows, that the testimony of the prosecutrix was obtained through persuasion, fear, and duress. It bears those indications which the testimony of children of that age so frequently bear, of being, to a considerable extent, the thoughts of others — thoughts developed after repeated conversations and much pressure.
It will be observed that there is a direct conflict in her testimony as given on the preliminary examination and on the trial as to what happened while she was sleeping with her father and mother wherein she states that on the next day in answer to their questions she made the statement to her mother and her sister-in-law, Lucille, of her father's treatment of her.
It also appears there is a direct conflict in her testimony and that of the only other witness called by the state to show opportunity to commit the crime when they returned from church together that evening. She states that, "We were all coming back home and my brother ran off and left us and my little sister ran off with him." The witness John Miller testified that he went to church that evening with the defendant and his son Robert and his daughter Christine, and that he left the church with Robert and the defendant came home with Christine.
It may be said in passing that opportunity may be considered as one of the circumstances in a rape case, but it is not corroboration. In several cases it has been held that the mere opportunity to commit the crime of rape is not sufficient corroboration of the testimony of the prosecutrix that rape was committed. State v. Brundidge, 204 Iowa 111, 214 N.W. 569; Robbins v. State, 106 Neb. 423, 184 N.W. 53; People v. Brehm, 218 A.D. 266, 218 N.Y.S. 469, 470; State v. Bowker, 40 Idaho 74, 231 P. 706.
It is urged on the part of the state that the testimony of the two physicians making the physical examination, to the effect that they did not find any evidence of the hymen corroborates the testimony of the prosecutrix.
The prosecutrix testified the first act of sexual intercourse occurred at Tell, Tex., when she "was around 9 or 10 years of age." Asked whether her father had sexual intercourse with her numerous times, she answered: "Yes, sir, he has." Asked if after they left Harden City her father had intercourse with her at Tell, Tex., she answered: "Yes, sir." She was asked by the county attorney: "Have you ever had intercourse with any other man except your father?" To which she answered: "No, sir." On cross-examination she was asked "whether she had not told her mother that her father was not guilty of this crime, and that John Miller in the first place forced her to go to Lucille and tell that her father was guilty." To which she answered: "No." She was then asked "if she did not confess to her mother after they moved from Ti to Horatio, that John Miller had had intercourse with her." To which she answered: "No, sir, I did not."
The rule must be taken as settled in this state that evidence of illicit acts with the defendant prior and subsequent to the date of the charge relied upon by the state for conviction is admissible.
In the case of Morris v. State, supra, it was held that upon a trial for 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 on for conviction, even though it tends to prove other offenses, as relevant circumstances tending to show the relation and familiarity of the parties, and continuousness of the illicit relations thereby tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction.
The great weight of authority is to the effect that in a prosecution for statutory rape evidence of immorality or unchaste conduct with others than the defendant is no defense, and evidence thereof is inadmissible. Penn v. State, 13 Okla. Cr. 367, 164 P. 992, L. R. A. 1917E, 668, Taylor v. State, 14 Okla. Cr. 400, 171 P. 739, Mar-low v. State, 20 Okla. Cr. 326, 202 P. 1048.
In the case of Walker v. State, 8 Okla. Cr. 125, 126 P. 829, this court held that it is no defense to an accusation that the prosecutrix may have had improper relations with other men, and that as a general rule the prosecutrix cannot be cross-examined as to whether any one other than the defendant had sexual intercourse with her.
An exception to the rule exists in some cases, and evidence of improper relations with other men is admitted to rebut the testimony of physicians regarding the absence of the hymen, or to account for a condition of pregnancy. 33 Cyc. 1481.
In the case of State v. Paddock, 86 Mont. 569, 284 P. 549, 550, which was a case similar to this, the court said:
"There are many cases supporting the view that where the state introduces evidence showing that the acts of defendant brought about a condition of pregnancy, or a destruction of the hymen, the defendant has the right to show that prosecutrix had improper relations with other men at about the time when she claims the defendant had intercourse with her, in order to account for her condition compatible with his innocence. Among such cases are the following: State v. McPadden, 150 Minn. 62, 184 N.W. 568; Commonwealth v. Duff, 245 Mass. 81, 139 N.E. 351; Atkeison v. State, 100 Tex.Crim. 313, 273 S.W. 595; O'Chiato v. People, 73 Colo. 192, 214 P. 404; Climer v. State, 162 Ark. 355, 258 S.W. 323; Thomas v. State, 178 Ark. 381, 11 S.W.2d 771; Fuller v. State, 23 Ariz. 489, 205 P. 324; State v. Orton [69 Utah, 304], 254 P. 1003; Kayes v. Commonwealth, 221 Ky. 474, 298 P. 1096; State v. Edwards [ 33 N.M. 51], 261 P. 806; State v. Quirk, 38 Wyo. 462, 268 P. 189; State v. Williams, 161 La. 851, 109 So. 515; People v. Russell, 241 Mich. 125, 216 N.W. 441; State v. Kraus, 175 Minn. 174, 220 N.W. 547."
In the case of People v. Brehm, supra, the court held that, where a physician had testified that the hymen of prosecutrix had been ruptured, but that he was unable to say when it had been done, it was error to refuse permission to cross-examine prosecutrix as to illicit relations with other men. And held further:
"Proof of absence of hymen day after alleged statutory rape and opportunity, together, held not to constitute corroboration of prosecutrix."
In this case a careful examination of the record fails to show any fact or circumstance tending to corroborate the testimony of the prosecutrix, her testimony consists almost exclusively of monosyllabic answers to leading and suggestive questions propounded by the county attorney, and there does not appear to have been any necessity or propriety in asking her leading questions which so clearly suggested the answers to the witness.
Aside from the testimony of the prosecutrix, there was no evidence whatever tending to corroborate her testimony as to the several acts, and there was no evidence whatever tending to show the surrounding circumstances or facts of prior and subsequent acts of intercourse between the prosecutrix and the defendant. She stated that the first act and the last act were committed at Tell, Tex. This is the only detail as to time or place of said occurrence. No testimony was given by her as to the particulars and there was no direct evidence showing penetration.
It also appears that she made no complaint of injury or mistreatment on the part of the defendant until over eight months had elapsed from the date alleged in the information that the acts charged occurred.
The charge of illicit sexual relations is easily made, and often inspired by malice, hidden motives, or revenge, and evidence to establish the same may be easily fabricated and hard to disprove. As has been well stated by an able jurist: "There is no class of prosecution attended with so much danger, or which affords so ample an opportunity for the free play of malice and private vengeance. In such cases the accused is almost defenseless.
In our opinion no person charged with crime should be convicted on such improbable, inconsistent, and unreasonable testimony as that given by the prosecutrix in this case.
Our conclusion is that the evidence was insufficient to justify or sustain the verdict, and that the verdict was more the result of prejudice than the calm and dispassionate conclusion of the jury upon the facts in evidence.
We may remark here that a spirit of unfairness throughout the trial is apparent.
A fair trial is guaranteed to all persons whether innocent or guilty, and it is the duty of the trial court to uphold this guaranty.
It must not be forgotten that the rules of law in criminal cases are made not only to bring about the punishment of the guilty, but also to protect accused persons upon the presumption that they are innocent of crime until their guilt has been established beyond a reasonable doubt.
For the reasons stated and because the evidence is entirely insufficient to support the conviction, the judgment of the trial court should be reversed and the defendant discharged. It is so ordered.
DAVENPORT, P. J., and BAREFOOT, J., concur.