text:
    O. E. STEVE HAMILTON v. STATE.
    No. 10320.
    Oct. 4, 1944.
    (152 P. 2d 291.)

      Brown & Cnnd and Jerome Sullivan, all of Duncan, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen and J. Walker Field, Asst. Attys. Gen., for defendant in error.
   JONES, P. J.

The defendant, O. E. “Steve” Hamilton, wras convicted of the crime of stealing a horse and sentenced to serve a term of four years in the State Penitentiary.

The sufficiency of the evidence to sustain the conviction is challenged.-

W. H. Gray testified that he lived a mile and a half east of Duncan; that he missed an iron-gray mare, coming four years old, weighing about 1,300 pounds, shortly before Christmas of 1941; that he later found the mare about the middle of February, 1942, near Chickasha; that the mare was worth between $90 and $100, and was taken •without his knowledge or consent. The fence was washed out in his pasture in October of 1941. The last time he saw his mare she had gone into the adjoining pasture of Sid Jones, which was about December 16 or 18, 1941.

W. T. Prince (or Price) testified that he was engaged in the trucking business in Duncan; that on the Friday before Christmas, 1941, the defendant hired him to haul a mare for him. Defendant said this mare was three miles south of Duncan, and witness agreed to haul her to town for $5. That when he and defendant got to the place where the mare was supposed to be tied, she was gone; that defendant found the mare south of where she had been tied and they loaded her into the truck and witness hauled her to Duncan, arriving there about dark. The mare was described as iron-gray, heavy-set with a roaehed mane. That on the following Monday, defendant came to him and hired him to haul the mare to Chickasha; that he took the mare on that date to the sales barn at Chickasha, unloaded her, and returned to Duncan. That, later, in a conversation with defendant in Duncan, defendant told him he sold the mare for $75, and paid the witness $5 for taking the mare to Chickasha.

J. W. Surber testified that he ran the Farmer’s Auction Sale, at Chickasha; that they had a sale on Monday, December 22, 1941; he identified a check for $73, representing sale of an iron-gray mare, Number 197, payable to Otis Hammons. He, also, identified exhibits “B” and ¿‘C”; “B” being the invoice for the iron-gray mare which was the ticket kept by the auctioneer showing the amount of the sale, which in this instance was $75. Exhibit “C” was the check-in slip made at the time the animal was checked in at the sales’ barn, which gave the name of the person who checked' in the mare as Otis Hammons, and his address as Chickasha, Oklahoma, General Delivery. It showed that the animal had brought the sum of $75, less $2 as commission on the sale. The animal was sold to a Mr. Daniels.

Boy Daniels testified that he lived near Pocasset; that on December 22, 1941, he bought an iron-gray, roaehed mare, coming four years old, at the Farmer’s Auction Sale, at Chickasha, for $75; that he later sold her to Mr. Swindell, at Amber.

H. E. Swindell testified that he bought a four year old iron-gray mare with a roaehed mane from Mr. Daniels; that, later, Mr. Gray and a deputy sheriff-from Duncan, came to Ms place and identified the mare as belonging to Mr. Gray, and she was delivered back to him.

Finis Martin, undersheriff, testified that he arrested the defendant and immediately had a conversation with him in which defendant said that the iron-gray mare which sold at the Farmer’s Auction Sale had been raised by hi in and he could prove it by his mother; that, later, defendant changed his story and said he bought the mare from Carl Maloney for $57. This was all the evidence in chief for the state.

Mr. and Mrs. Virgil Braggs each testified that they lived on a farm three miles south and one and one-half miles west of Duncan; that they knew Carl Maloney; that on or about December 16, 1941, Carl Maloney brought an iron-gray mare and put it in the Jones pasture adjoining theirs. That Carl Maloney came later and got the mare on Friday, about two weeks after the mare had been brought there. That the defendant Hamilton was with him, and Maloney asked her for a rope or a bridle or something with which he could lead the mare. That they took the mare away at that time. That it was on Friday before Christmas; these parties were positive about the description of the mare because it broke into their pasture during a large part of the time when it was supposedly in the Jones’ pasture.

O. E. Hamilton testified that the first time he saw the mare herein involved was on Friday, the week before Christmas. That Carl Maloney saw him on that date in a recreation parlor in Duncan, and told him he had a mare to sell; that he drove three miles south and one and one-half west of Duncan, and saw the mare at Braggs’ house. That he bought her for $60 and hired Bill Price to bring her to town. That, later, he hired Price to haul her to Chickasha, where she was sold through the auction sale, for $75. That he did not give his name as Otis Hammons, but told them his name was Otis Hamilton. He admitted endorsing the check as Otis Hammons, but said he called attention of the man at the bank to the discrepancy when it was cashed. He, also, admitted telling the undersheriff that he had raised the mare, but explained that he said that because lie did not think it was any of the under-sheriff’s business where he had gotten the mare.

Carl Maloney testified in rebuttal for the state that he had previously been convicted of burglary and had pleaded guilty to three different cases of cow stealing and received a total of seven years therefor, during the present term of court. That he helped load the iron-gray mare which was transported by Mr. Price, in his truck from Duncan to Chickasha, for the defendant Hamilton, on Monday December 22, 1941. That three or four weeks prior to that time, he had been employed by Sid Jones to help move some cattle from a pasture of Jones, located south and west of Duncan, to the town of Duncan. That on the date the cattle were moved, Jones had him take a gray mare from his place east of Duncan, to the place southwest of .Duncan, to be used in rounding up the cattle. He described the mare, which he moved for Jones at that time, as being a light gray mare, eight or nine years old, weighing about a 1,000 pounds, and specifically said that the mare which he took to the Jones’ pasture southwest of Duncan was not the mare which was hauled by Price to Chickasha, on December 22,1941, for the defendant Hamilton. He denied ever selling the mare in controversy to the defendant and disclaimed any interest in her at any time. Other witnesses testified in rebuttal for the state substantiating the story related by Maloney, concerning the removal of Jones’ cattle about the first of December, from Jones’ place southwest of Duncan into the city of Duncan.

It is argued by the defendant in support of his contention that the evidence is insufficient to support the conviction that, if he is guilty of anything, he is only guilty of receiving stolen property which had previously been stolen by Maloney.- However, this argument of defendant is based solely upon the evidence of the defendant. The evidence of the state makes out a clear case of guilt. According to Price’s testimony, Maloney was not present when he first hauled the stolen mare from south of Duncan into Duncan, for the defendant. Not only did the state show the defendant’s possession and asportation of the stolen animal, but the fact that he gave a fictitious name with an incorrect address at the sales barn and further told conflicting stories to the officers a.t the time of his arrest concerning the animal all show a guilty knowledge and are inconsistent with innocence.

It is next contended that the court erred in refusing to discharge certain jurors Avho Avere challenged in a motion addressed to the court after the jury panel had been sworn to try the cause.

The voir dire examination of the jury is not included in the record. However, after the jury bad beers im paneled and sworn to try the cause, the folloAving proceédings were had according to the record:

“By Mr. Brown: Comes noAV said defendant and moves the court to discharge this jury, for the reason that the answers of the following jurors, to-wit: W. H. Pinson, W. R. Frederick, N. T. Holmes, J. W. Owenby, C. T. Meeks, and Robert Sutton, show that they were on the jury that tried Marion Taylor, yesterday and that the evidence of the said Marion Taylor, was that he got the cow which he was accused of stealing in that case at the home of this defendant in Duncan, Oklahoma. By Mr. Marmaduke: It is stipulated and agreed by and between the state and defendant, that each of the above named jurors have testified under oath on their voir dire examination, both by the state and by the defendant, that nothing they heard in the Taylor case, and no evidence given by Taylor or any other party, wherein the name of O. E. Hamilton was mentioned would in any way affect their verdict one way or the other in this case and that their minds were free and clear at this time as to the guilt or innocence of the defendant, Hamilton, in this case. By the Court: That can be handled alright, overruled. Mr. Brown: Exceptions to the ruling of the court. Mr. Marmaduke: It is stipulated and agreed by and between the State and defendant that in the case that was tried yesterday, State of Oklahoma v. Marion Taylor, that the defendant in that case, Marion Taylor, testified in telling the jury about his recent possession of stolen property, which was in question in that case that he got possession of the stolen property from O. E. Hamilton; that each of the above named jurors whose names are contained in defendant’s motion to discharge the jury, each of them were asked that particular question on their voir dire examination as to whether or not that particular testimony in that case, which came out in that trial, would in any way affect their verdict in this case against the defendant, Hamilton; that each of said jurors answered that it would have no effect upon the trial of this case and their minds were free and clear of any opinion as to the guilt or innocence of this defendant on this charge and they knew of no reason that would in any Avay prevent them from trying this defendant in this case according to tbe laAV and evidence and had at this time no opinion as to the guilt or innocence of the defendant on trial at this time; that nothing that occurred in this former trial and no testimony given by any party in the former trial Avould affect them or keep them from giving this defendant a fair and impartial trial in the case on trial and from rendering a fair and impartial verdict in the case.”

Tlie record is silent as to whether any of these jurors were challenged for cause, and it is, also, silent as to whether the defendant exercised any of his peremptory challenges.

22 O. S. 1941, § 653, provides:

“When challenge taken. — It must be taken when the jury is full, and as soon as one person is removed by challenge, another must be put in his place, until the challenges are exhausted or waived. The court for good cause shown may permit a juror to be challenged after he is sworn to try the cause, but not after the testimony has been partially heard.”

Counsel for the state, in resisting this contention of defendant, states that the motion of the defendant was properly overruled because it was presented after the jury had been sworn to try the cause. However, the above statute sufficiently answers that contention. For good and sufficient cause, the court, if no testimony has been presented, may excuse a juror after he is sworn if the cause for such challenge is deemed sufficient to the court. It is evident that counsel for defendant, after thoroughly examining these jurors on their voir dire, was satisfied that they would act fairly and impartially in accordance with the law and the evidence, and it was only after the jury was sworn to try the cause that he deemed the matter of sufficient importance to make a further challenge to the panel as a whole and have a record made of the proceedings. Counsel for defendant have cited no authorities to sustain this proposition.

This court has held that where certain jurors impaneled in the trial of a defendant were the same jurors as sat in the previous trial of the same defendant on a similar charge, and the controverted issues of fact are the same as in the case previously tried, that such jurors are not impartial within the meaning of the Constitution. Schrimpsher v. State, 32 Okla. Cr. 371, 241 P. 201; Moffitt v. State, 45 Okla. Cr. 440, 283 P. 1027.

However, in the case of Bills v. State, 48 Okla. Cr. 233, 290 P. 935, this court held:

“Jurors, who sat in the trial of a criminal case wherein certain 'witnesses testified, are not thereby disqualified to sit as jurors in the trial of another case a,gainst a different defendant, tried at the same term of court, where such witnesses will testify for the state in reference to a different offense and at a different time.”

The Taylor Case referred to in the stipulation of counsel did not have anything to do with the instant case and no mention of it was made by any witness. By reason of the fact that counsel for defendant did not challenge any of said jurors for cause and did not choose to excuse any of them by means of one of his five peremptory challenges, the court evidently thought that counsel was not diligent, in presenting his challenge to the panel after they were sworn. No additional evidence of their disqualification was presented, other than that brought out by their statements on voir dire, and, since counsel passed the jury for cause and accepted them without exercising any of his peremptory challenges, the trial court was justified in the exercise of his discretion in concluding that no good cause was shown to require him to excuse the panel after they had been sworn to try the cause.

Furthermore, it would appear that the statute above quoted was meant to apply only to individual jurors who were disqualified, but whose disqualification was not brought out on the voir dire examination, but only became known after the jury had been sworn to try the cause. Orderly procedure and a requirement of due diligence on the part of counsel demands that counsel inquire into all matters within his knowledge which might affect the qualification of the jurors on their voir dire examination, and, where this is not done, the trial court may at his discretion refuse to consider a challenge to an individual juror after the jury is sworn to try the cause. The right to challenge a juror for cause in such an instance is considered to have been waived.

It is further contended that the county attorney was guilty of prejudicial misconduct in his closing argument to the jury. The entire argument of the county attorney is incorporated in the record. That part of the argument complained of is that statement of the county attorney,

“This case, gentlemen, has been rather amusing to me. I am referring to the case against Marion Taylor, the case against Carl Maloney and the case against Hamilton. When we tried the Taylor case, he laid it off on Carl Maloney. . . . Mr. Brown: We object to that line of argument. Mr. Marmaduke: It came out in the evidence. Court: The jury should disregard any statement made that is not based on the evidence or reasonable deductions therefrom. When Ave tried the Taylor Case he laid it off on this defendant. When Ave tried this defendant he laid it off on a boy up in jail, towit: Carl Maloney. I say it’s been amusing to me, each and every time we find the defendant Ave are trying in possession of the stolen property. Mr. Brown: Give us an exception to that.”

It is so Avell settled by many decisions of this court that citation of authorities is unnecessary that counsel for the state in his argument to the jury must confine himself to the evidence and reasonable deductions that may be drawn therefrom.

Counsel for the state was proceeding on the theory that the questions asked the jurors on voir dire examination concerning the Marion Taylor case were evidence in the trial of this defendant and a matter about which he could legitimately argue. However, this was an incorrect assumption on the part of the county attorney. Although some of the jurors had sat in the Taylor Case, still there was no evidence in the instant case concerning the Taylor Case, and the argument accordingly was improper. This court has been liberal in allowing counsel for the state to have a wide range of discussion and illustration in his argument, but where the prosecutor makes a statement outside of the record for the purpose of securing a conviction, the strength of the evidence against the defendant will be considered, and, if the improper argument may have been a factor in determining the verdict, a new trial will be granted; or, if an excessive punishment seems to have been given by reason of such argument, a modification of the sentence will be made.

In this case, the evidence against the defendant clearly shows his guilt. The argument of the county attorney complained of is the only instance in his argument where the county attorney in any way was guilty of. going outside of the record. We do not feel that this court can place the stamp of approval upon that part of the argument complained of in this cáse. However, because the guilt of the defendant is definitely established, we are unwilling to reverse the case for a new trial, but, instead, feel that the punishment assessed against the defendant should be reduced to the minimum sentence of three years’ imprisonment, in the State Penitentiary.

It is, therefore, ordered that the judgment and sentence of the district court of Stephens county is modified by reducing the punishment assessed against the defendant from four years in the State Penitentiary to a term of-three years in the State Penitentiary. The judgment and sentence as thus modified is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    COLUMBUS EDWARD DE WITT v. STATE.
    No. A-10327.
    Oct. 4, 1944.
    (152 P. 2d 284.)
    C. IT. Baskin, of Holdenville, and Bishop & Bishop, of Seminole, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Jess L. Pallen, Asst. Atty. Gen., and Harvey Powell, Co. Atty., of Holdenville, for defendant in error.
   BAREFOOT, J.

Defendant, Columbus Edward DeWitt, was charged in the district court of Hughes county with the crime of rape in the first degree; was tried, convicted, sentenced to serve a term of 15 years in the State Penitentiary, and has appealed.

Defendant was charged with the rape of his 13-year-old daughter on October 31, 1940. The complaint against him was filed in the justice of the peace court on November 7, 1940. Preliminary examination was waived by the defendant, and the information was not filed in the district court of Hughes county until January 14, 1942. Tlie record does not disclose why an information was not filed in the district court at an earlier date. It is stated in the brief of defendant, and he testified that he remained in jail for a period of ten months before he was able to make bail.

The assignments of error that the evidence is insufficient to sustain the conviction, and that the verdict of the jury and the judgment and sentence of the court should be set aside because there is not competent corroboration of the testimony of the prosecuting witness, are the only errors necessary to consider for a proper determination of this appeal.

Defendant was the father of nine children at the time of the trial: Hiram, age 22 years, Ruby 21, Odell 19, L. 0. 17, Dorothy Lee (the prosecutrix) 13, Kenneth 12, J. R. 10, Edna May 8, and Earl Thomas 6 years. The mother died in 1935.

Seven of these children were living with the defendant at his home on October 31, 1940, and according to all of tlie witnesses, they were present in the home on the night it is claimed defendant raped the prosecutrix. Also present were an adult aunt, and her two children, ages 12 and S years. In all, there were twelve persons, including the defendant and the prosecutrix, present at the time the attack is alleged to have occurred.

The testimony of the prosecutrix, Dorothy Lee, was that they were all sleeping in two rooms. In bed with her where the act occurred were her small brother and sister, ages four and six years, respectively. The father was in the adjoining room, sleeping on a bed next to the wall, with two children sleeping at the foot of his bed, and three children sleeping on a pallet by the side of his bed. The aunt and two other children were sleeping in a bed in the same room where prosecutrix was sleeping with her small brother and sister. According to her testimony, the father came to her bed and had an act of intercourse with her, and none of the other parties who were sleeping in the house at the time were awakened or knew anything of the attack being made. She also testified that these acts had been going on for a period of two years, sometimes in the daytime while the children were playing in the yard, and sometimes in the night when they were all in the house. Ruby, the oldest daughter, had married in 1938, and ivas not at home a't the time these acts occurred. Prosecutrix further testified that during the fall of 1940 she and the other children went into Holdenville to visit her grandfather, and while there her married sister, Ruby, came to see her, and after being questioned by her, she for the first time told her of what had occurred. Her sister took her to Dr. A. L. Davenport for an examination. This was in 1940. She then took her to the county attorney of Hughes county, and charges were preferred against the defendant, charging him with the rape of Dorothy Lee on October 31, 1940.

In an attempt to corroborate the testimony of the prosecutrix, the state placed upon the witness stand Dr. A. L. Davenport. The material part of his testimony was that the sister of prosecutrix brought her to his office for examination in the early part of November, 1940. That she gave him a history of her case, and told him that she had been having intercourse with her father. That his examination -revealed that her hymen had been ruptured; that she had been having intercourse for a long time; and that two fingers could enter her vagina without causing pain. He testified as follows:

“Q. Do you recall how come her to be at your office? A. Well, her sister brought her to the office and said she wanted me to examine her; that her and her father had been having intercourse, according to' the history that the girl gave her. She wanted me to examine her and see whether she had ever had intercourse or whether at the time I could determine she — if she was pregnant or not. ... Q. Tell the jury what kind of an examination you made, Doctor, and what you found. A. I examined her and went into the history. She claimed up to this time she never had menstruated, and she wasn’t very well developed. Mr. Baskin: I didn’t get the answer, Doctor. A. I say she wasn’t very Avell developed for a girl of 13 is generally developed, where we break it in, what the medical understands as the vaginal examination, the exterior and interior examination, and I told her sister at that time, from my examination, that I didn’t think she was pregnant; if she was, she wasn’t very far advanced, but, on the other hand, that she had had intercourse. It wasn’t any trouble whatever to introduce two fingers in the vagina. Q. Now, Doctor, tell the jury Avhat you mean by ‘not being Avell — very Avell developed? A. Well, by that, the hair wasn’t A’-ery well developed and her breast wasn’t very Avell developed. What I mean by that, she didn’t have the development that lots of girls would have for that age. Lots of girls are developed almost complete woman at 18 and 14 years old, while some girls are not practically developed at all. They assume no difference under that age. She was more, say, on the border line. That is, when I examined her. Q. Doctor, did you find any fragment of the hymen? A. Well, there wasn’t a hymen there. The hymen had been ruptured and gone. Q. You say you had no trouble in introducing two fingers? A. No, sir; no, sir. _Q. Could you tell she had had sexual relations with somebody, or not? A. I told her sister when I got through that she had been having sexuai relations with someone. Mr. Baskin: I object to what she told her sister. A. Well, I told her and her sister together.” . . .

And on cross-examination he testified:

"Q. Does medical science teach you that some women are born without a hymen? A. The medical sciences teach some women are born without a hymen and some women are born with an imperfect hymen. Have different conditions existing in the hymen. But of course by an accident or a case like that, the hymen can be ruptured. Otherwise, about always some fragment left to show where there had been a hymen, where it had been ruptured. Q. Was there any fragments here? A. Yes, sir. Q. You say she wasn’t very well developed in her breast, was she? I will ask you if it isn’t a fact that any woman who has been engaging in sexual intercourse doesn’t ordinarily develop her now in the breasts? A. I don’t know whether that would have anything to do with it whatever. Q. You don’t think it would? A. I don’t know that it would. Q. You said, I believe, that it is no trouble to insert two fingers in the womb? A. Not in the womb; in the vagina. Q. In the vagina? A. Yes, sir. Q. And that would indicate that she had been having sexual intercourse, you say? A. It would indicate that she was capable of having sexual intercourse, or that something previously had ruptured the hymen.”

With this testimony the state rested, and the defendant offered a number of witnesses, including himself.

Hiram DeWitt, the oldest son, age 22 at the time of the trial, and who was married and had two children, testified that he had lived with his father and mother until the death of his mother in 1936, and with his father and the children until 1938, when he married. He gave a complete history of the family, and testified that the eldest daughter, Ruby, was high-tempered and both before and after her mother’s death administered whippings and beatings to the smaller children, and used abusive language toward them, which it is unnecessary to repeat. He testified to her running away from home and going to Oklahoma City, and of her father going after her, and taking her home; of her starting to follow the witness and another man down to the woods when her father had forbade her going, of her father overtaking her and whipping her and taking her back home; that she made the statement at that time that if her father whipped her “he would regret it the rest of his days;” of her marriage; that she left home a short time thereafter and her return after two years absence, and coming to the home of witness with her husband; of their going to the home of his grandfather in Holden-ville and Ruby talked with Dorothy Lee, the prosecutrix, who with the other smaller children were visiting there, of her taking Dorothy Lee to the sheriff’s office, and of going to the county attorney’s office and having charges filed against the defendant and of his being placed in jail; that Ruby and her husband returned to their home in Prue and took Dorothy Lee and Edna May with them. There was also introduced in evidence a letter written by Ruby to this witness, addressed to him at Calvin, Okla. He lived at or near Holdenville. It was marked “personal,” and in it she asked that he tear it up when read. In this letter she asked that certain personal property be sent to her. Both he and his father, the defendant, testified that this property did not belong to her, and wag therefore not sent to her. He further testified that Dorothy Lee, the prosecutrix, had for a number of year prior to 1940 suffered from “oesto-myelitis,” which was commonly called “T. B. of the bone.” That she was in a hospital in Oklahoma City for about four years, and that her leg was in a cast from the foot to the hip for about six months. It remained in this cast when she was taken to her home. That she had undergone about 13 operations while in the hospital. She returned to her home during the year 1939. He also testified that defendant was a hard-working man, spent every dollar he earned for the benefit of his family, and that he never at any time saw the defendant in any way mistreat any of the children. . He also testified to numerous other facts which completely explained evidence of statements made by the prosecuting witness.

Bernice Costa, a niece of defendant, testified that she Avas at the home of her grandfather Avhen Ruby and her husband came there in November, 1940. That Ruby went to the room of Dorothy Lee, the prosecutrix, and she heard Ruby “ask Dorothy if she would, and she said she didn’t want to.” ' She did not know what they were talking about, and this was all of the conversation that she heard. She also heard Ruby and her husband tell her grandfather that Uncle Ed (the defendant) had sent after the children. They took them away, and Dorothy Lee and the smaller girl, Edna May, Avent to the home of Ruby Horton and never returned to their father’s home.

Odell DeWitt, age 19 at the time of the trial, testified that he Avas at home on the night of October 31, 1940. He testified to the arrangements of the house, and Iioav the 12 parties slept therein on the night of October 31st. He and one of his brothers, L. C., and a cousin went to the home of a neighbor to see some boys. The boys were not at home, and all returned between 7 and 8 o’clock. They played a fiddle and a guitar. All of the children went to bed about 10 o’clock and so did the defendant. Witness and his brother L. C. played the fiddle and guitar until about 12 o’clock. They then went to bed on a mattress that had been taken from his father’s bed and placed on the floor by the side of the bed, but they talked and played until about 2 o’clock. At no time did he hear or see his father leave his bed, or go toward Dorothy Lee’s room. They awoke about 5 o’clock in the morning. He testified as to the abusive treatment of his sister Euby toward the small children, and of her striking and whipping them, and of her high temper. That he never at any time saw the defendant mistreat his daughter Dorothy Lee. He corroborated the evidence of his brother Hiram as to the sickness of Dorothy Lee and upon other material points which it is unnecessary to relate.

L. C. DeWitt, age 17 at the time of the trial, testified that he ivas present in the home of defendant on the night of October 31, 1940. He corroborated in every way the testimony of his brother Odell.

Kenneth DeWitt, age 12 years, testified to the kind treatment of his father toward all of the children, and of the ill treatment they received from their sister Euby.

J. E. DeWitt, age 30, testified he was in the third grade, and that his father always treated the children “fine.”

Thomas DeWitt, age 6, was placed upon the stand but because of his tender age no material questions were asked him.

The defendant offered as a witness Dr. W. E. Floyd of Holdenville. He had practiced medicine 39 years in Hughes county, and was county health officer. It is unnecessary to unduly lengthen this opinion by giving all of his testimony. He testified that in some instances women are born without a hymen, and that when the hymen is ruptured that after a' few hours it is impossible to tell that it was caused by the penetration of the male organ. That it can be ruptured by instruments, and in other ways, which he fully explained.

There was also introduced in evidence the discharge of the defendant from the United States Army. This showed his induction on June 23, 1918, and his discharge on July 2, 1918, by reason of “ideopathic epilepsey.” This disease was fully explained by Dr. Floyd, and the evidence revealed that the defendant had had several attacks since being discharged from the army.

Evidence of witnesses from Holdenville and Horn Town where defendant had resided for many years, as to his good reputation and never having before been arrested or charged with crime, was introduced by defendant.

The deposition of IT. Y. Deming was offered. He testified that on the date defendant was placed in jail, Willie Horton, the husband of Ruby Horton, told him that “Ed (the defendant) was in jail, and that he (Willie Horton) intended to bring about the arrest of the other children, that is, the sons of this defendant, and cause them to remain in jail or be placed under a peace bond.”

The defendant took the witness stand and denied the charge made against him by his daughter Dorothy Lee; of the trouble he had with his eldest daughter Ruby, and of his going to Oklahoma City and finding her living in undesirable conditions and surroundings; of bringing her back home; of her attempt to associate with men of whom he did not approve; of his whipping her upon one occasion, and her threat to get even with him; of her demand for certain personal property and household goods after her marriage and which she did not own; of her absence for a period of two years after her marriage without writing or communicating with him except the one letter written to his son Hiram in which she stated that he (defendant) would be an unwelcome guest in her home and advising Hiram not to bring him to her home; to the illness of his wife and his child Dorothy Lee, the prosecutrix; of his devotion to her and the other children; of his struggle to make a living working for $1.50 and $2 a day in order to make enough to keep his family together; of his being kept in jail for a period of ten months and of the scattering of his family during this time; and his re-establishment of his home after his release. He testified he had no ill will toward Dorothy Lee, the prosecutrix, and that he was of the opinion she had been persuaded to testify against him by his eldest daughter and her husband.

On rebuttal the state offered T. G-. Lankford as a witness, who testified that he was the uncle of defendant’s wife. He recalled having passed the home of defendant either in 1939 or 1940. That he saw the children in the yard playing and that he stopped and went to the back door. That the screen was latched and that defendant and Dorothy Lee were in the kitchen. That the other children were in the yard playing. That Dorothy Lee answered his knock in a minute and opened the door. He saw nothing wrong in the conduct of the defendant' or Dorothy Lee.

With reference to the law applicable to cases of this character, this court has in many cases fully considered and discussed the same. We have adhered to the principles that have been announced in the early days of this court, and the late decisions have cited and quoted fully from those decisions. The Attorney General in his brief has cited three of these late decisions: Weeden v. State, 73 Okla. Cr. 258, 120 P. 2d 379; Varner v. State, 69 Okla. Cr. 294, 102 P. 2d 615: and Jackson v. State, 77 Okla. Cr. 160, 140 P. 2d 606. These cases cite all of the early cases and they will not be here repeated. We have carefully read the three cases above cited. The facts in those cases are materially different from the facts in the instant case.

In the Weeden Case the defendant was charged with the rape of his 14-year-old daughter. The evidence of the prosecutrix was corroborated by the members of the family and many other persons, and it was shown that he had many opportunities to commit the act when no one was present. This was brought about by his own arrangements. The evidence further revealed that he had served three different terms in the penitentiary. In the instant case, all of the members of the family contradicted the evidence of the prosecutrix. lie had no opportunity and sought none. ITe was with the prosecutrix only when his family was present or in close proximity.

In the Varner Case, the act was by force and not by consent. The prosecutrix told her mother and father of the act immediately upon her return home by the defendant. They corroborated her testimony and testified to her personal appearance, and the condition of her clothing. Her testimony was in no way contradicted, except by the defendant himself.

In the Jackson Case, the rape was by force and the prosecutrix was 33 years of age. The prosecutrix left the defendant at the very first opportunity, and told the officers. Her testimony was uncoiitradicted and unimpeached, and there was nothing to show that it was unreasonable or untrue. The defendant’s testimony was contradicted by witnesses he placed upon th'e stand. It was further revealed that he had previously served a term in the penitentiary.

One of the most recent cases decided by this court, and which would come nearer sustaining the contention of the state as to the corroboration of the prosecutrix, is the case of Maxwell v. State, decided on April 12, 1944, and reported in 78 Okla. Cr. 328, 148 P. 2d 214, 217. In that case we have reviewed all of the early decisions of this court and have in concise language stated the law in this jurisdiction as has so often been repeated in the decisions of this court. We there said:

“From an early date this court has adopted the rule that one may be convicted upon the uncorroborated testimony of the prosecutrix. Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Douglas v. State, 19 Okla. Cr. 257, 199 P. 927; Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617; Harris v. State, 27 Okla. Cr. 405, 228 P. 525; Day v. State, 29 Okla. Cr. 49, 232 P. 122.
“But Ave have limited this rule with an exception Avhich is as well established as the rule itself. It is that the testimony of the prosecutrix in a rape case must be clear and convincing, and Avhere it bears upon its face inherent evidence of improbability, is contradictory,, inconsistent or unreasonable, it will be held as insufficient, and under these circumstances must be corroborated to the extent of making it sufficient. Alcorn v. State, 70 Okla. Cr. 386, 106 P. 2d 838; Williams v. State, 61 Okla. Cr. 398, 68 P. 2d 530; Kilpatrick v. State, 75 Okla. Cr. 28, 128 P. 2d 246; Gordon v. State, 75 Okla. Cr. 356, 131 P. 2d 503; Weeden v. State, 73 Okla. Cr. 258, 120 P. 2d 379; Burtt v. State, 64 Okla. Cr. 68, 77 P. 2d 580.
“This rule has more often been applied in cases where the prosecutrix is a child of tender years and more susceptible of coming under the influence of others, or through fear, threats, coercion or duress. Self v. State, 62 Okla. Cr. 208. 70 P. 2d 1083; Woodruff v. State, 74 Okla. Cr. 289, 125 P. 2d 211.
“In the Weston case, supra [Weston v. State, 77 Okla. Cr. 51, 138 P. 2d 553], reference is made to the Sowers case, supra [Sowers v. Territory, 6 Okla. 436, 50 P. 257], which is based upon the reasoning of Sir Matthew Hale, one of the greatest judges of criminal law of all times. The general rule, and the one recognized and followed by this court, is that where there is any evidence to support the verdict, or where the evidence is conflicting, the appellate court will not examine the record for the purpose of ascertaining or determining the weight of such evidence and the verdict approved by the trial judge will be permitted to stand. But in cases of this character, an exception is recognized to the general rule above stated, and that exception is that in rape cases the appellate court will make a careful examination of the whole record to the end that it may justify the sentence imposed. This exception is based upon the firm foundation announced by Sir Matthew Hale when he said: ‘It is true that rape is a most detestable crime, and therefore severely to be punished, with death; but it must be remembered that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent.’
“In the Weston Case, the judgment and sentence was reversed. We there said * * *:
“ ‘This is what we mean when we say that cases of this character should not be decided upon technicalities, based upon a fixed policy that the verdict of the jury is final and absolutely correct on every proposition of fact. The doctrine that one may be convicted on the uncorroborated testimony of the prosecutrix has an exception to the rule that is as well founded as the rule itself, and that is that where her testimony is contradictory, uncertain, improbable or she has been impeached, her testimony should then be corroborated. And this corroboration should be of such dignity as to give it weight with the jury upon the question that the actual crime has been committed. It should not be such slight circumstances as to leave the court and jury to guess or speculate that the crime has been committed and that the defendant is guilty. Many cases of this nature that come before this court for review are of such character that there can not but be a doubt as to the guilt of the defendant, and the least action upon the part of the court or the slightest incompetent evidence causes the jury to return a verdict of guilty.
“ ‘The conviction for first degree rape carries with it a minimum punishment of fifteen years in the penitentiary, and a maximum punishment of death or life imprisonment. Certainly there is reason for the rule that has been so long adhered to by this court that close scrutiny will be given to the evidence before a conviction will be permitted to stand.
“ ‘In the past few years numerous rape cases have been affirmed by this court: Roberts v. State, 31 Okla. Cr. 103, 237 P. 148; Lane v. State, 48 Okla. Cr. 84, 289 P. 357; Lynch v. State, 42 Okla. Cr. 415, 276 P. 501; Fowler v. State, 42 Okla. Cr. 300, 275 P. 655; Malone v. State, 40 Okla. Cr. 102, 267 P. 486; Allen v. State, 35 Okla. Cr. 64, 248 P. 655; Harris v. State, 27 Okla. Cr. 405, 228 P. 525; Varner v. State, 69 Okla. Cr. 294, 102 P. 2d 615. Others hairn been reversed: Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617; Douglas v. State, 19 Okla. Cr. 257, 199 P. 927; Davidson v. State, 57 Okla. Cr. 188, 46 P. 2d 572; Johnson v. State, 52 Okla. Cr. 397, 5 P. 2d 772; Dawes v. State, 34 Okla. Cr. 225, 246 P. 482; Woodruff v. State, 74 Okla. Cr. 289, 125 P. 2d 211; Miller v. State, 65 Okla. Cr. 26, 82 P. 2d 317; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530; Kilpatrick v. State (75 Okla. Cr. 28), 128 P. 2d 246; Coppage v. State [76 Okla. Cr. 428], 137 P. 2d 797 * * *.
“ ‘We realize the disadvantage the trial courts are put to in the trial of this class of cases. There is generally strong feelings in the community by reason of the nature of the crime, and often of the persons involved. These charges are often the outgrowth of alleged attacks upon children of tender age. The facts are often given wide publicity in the local communities. If a verdict of guilty is rendered by the jury, the only relief that can be given by the trial court is the granting of a new trial at a great expense to the county. In the appellate court we have an opportunity to survey the whole record, after it has been reviewed and briefed by attorneys for both the State and the defendant. It is no pleasant task to reverse a rape case, and it is no pleasant memory to send a man to the penitentiary even for a minimum of fifteen years when there is grave doubt of his guilt, and by evidence of one whom the laws require to be corroborated, and the corroboration is not sufficient. But our sworn duty demands that the laws be followed, and that justice shall prevail.’
“With the sound principles of law as above stated, and as followed by this court since its existence with few cxcexitions, where the general rule of sustaining the verdict and judgment when there was any evidence to support it, has been applied to cases of this character, we now consider its application to the facts as they exist in the instant case.”

In the Maxwell Case, the judgment was affirmed and on as slight evidence as any case we have examined. Yet, the facts in that case are much stronger to corroborate the prosecutrix than in the instant case. Here there is no evidence except that of Doctor Davenport. Some of his evidence is contrary to the evidence of Doctor Wolf, and contrary to that of many doctors who have testified in cases which have been appealed to this court. The testimony of the prosecutrix is not only highly improbable, but is contradicted by all of the witnesses old enough to testify who were in the house at the time of the alleged offense, with the exception of one, the aunt, who the record reveals died prior to the trial of defendant. How the defendant could have left his bed with two boys sleeping at his feet in the same bed, and passed over three other boys sleeping on a mattress by the side of his bed, opened the door and raped the prosecutrix, 13 years of age, while two oilier children were sleeping in the bed with her, and while a grown woman and two children ivere sleeping in the same room, and none of the parties awake, and no outcry on the part of the prosecutrix, is almost beyond the comprehension of the human mind. No defendant’s liberty should lie taken from him upon the evidence revealed by this record. The evidence with reference to the attitude of his daughter Ruby toward him, and of ill feeling of both she and her husband toward him, is unanswered as far as this case is concerned.

This charge for some reason not revealed by the record was not tried until a period of two years had elapsed. The information in the district court was not filed until two years after the commission of the offense as alleged. Certainly this case comes within the rule that the testimony of the prosecutrix should have been corroborated, and that the evidence in the record is insufficient to corroborate her in the manner provided by law.

We are, therefore, of the opinion that the judgment of the district court of Hughes county should be reversed and the case remanded, and unless the county attorney has other evidence which he considers sufficient to convict the defendant, that he be discharged. It is so ordered.

JONES, P. J'., concurs. DOYLE, J., not participating.


text:
    FRED SMITH v. STATE.
    No. A-10162.
    Oct. 4, 1944.
    (152 P. 2d 279.)

      S. E. Dunn, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Dixie Gilmer, Go. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, Fred Smith, was charged in the district court of Tulsa county with the crime of assault with a dangerous weapon, was tried, convicted, and sentenced to a term of three years in the penitentiary, and has appealed.

All of the errors complained of may be considered under the assignment that the evidence was insufficient to sustain the judgment and sentence.

The charge in this case was under 21 O. S. A. 1941 § 645, which is as follows:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

It is contended that the evidence is insufficient to prove the commission of a felony as alleged in the information, and that there was a fatal variance in the testimony and the allegations of the information. The charging part of the information was as follows:

“* * * that Fred Smith, on the third day of February, A. D. 1941, in Tulsa County, State of Oklahoma, and within the jurisdiction of this court, did unlawfully, wilfully and feloniously, without justifiable or excusable cause, commit an assault with a dangerous weapon upon the person of another, to-wit: Mrs. Charles E. Smith, by then and there kicking the said Mrs. Charles E. Smith with heavy shoes had and worn on his feet, and then and there, with force and violence, striking her with his fist breaking her jaw and otherwise bruising and wounding her, and he the said Fred Smith being a stout, strong young man, and with the unlawful and felonious intent then and there upon the part of him the said Fred E. Smith to do Mrs. Charles E. Smith great bodily harm and injury, * *

To sustain this contention, defendant relies upon the cases of Wilcox v. State, 13 Okla. Cr. 599, 167 P. 74; Bourbonnais v. State, 7 Okla. Cr. 717, 122 P. 1131; and Moody v. State, 11 Okla. Cr. 471, 148 P. 1055.

The state relies upon the cases of Clemons v. State, 8 Okla. Cr. 452, 128 P. 739; Parks v. State, 14 Okla. Cr. 413, 171 P. 1129; and Collins v. State, 22 Okla. Cr. 203, 210 P. 285, 30 A. L. R. 811.

We have carefully read all of these cases.

The above section of the statute, together with 21 O. S. A. 1941 § 652, §§ 641, 642, § 653, and § 681, have been the occasion of much consideration by this court from early times. It would probably simplify the administration of justice in this state if the Legislature would pass what has often been denominated as an “aggravated assault” statute; and this, coupled with our “attempt to kill” statute, would in all probability clarify the situation as it now exists. This, of course, is a matter for the consideration of the Legislature, and not for the courts.

Under the decisions above cited, it may be said that the allegations of the information in the instant case are not in as much detail as they should have been. The record does not disclose that a demurrer or motion to quash the information was filed by defendant, but he entered a plea of not guilty, and was tried with the result as above stated.

Under the law a pair of shoes, such as worn by the defendant, are not a dangerous weapon per se. There can be no question but that by their manner of use they might under certain circumstances become a dangerous weapon; as, for instance, where the evidence revealed that they were used to stomp one to death, or to inflict great bodily injury. The manner of their use would determine the fact as to whether or not they were a dangerous weapon. Some of the later cases decided by this court .have discussed this statute. We cite them without quoting therefrom: Palmer v. State, 78 Okla. Cr. 220, 146 P. 2d 592; Tipler v. State, 78 Okla. Cr. 85, 143 P. 2d 829; Bean v. State, 77 Okla. Cr. 73, 138 P. 2d 563; Beck v. State, 73 Okla. Cr. 229, 119 P. 2d 865; Reardon v. State, 51 Okla. Cr. 432, 2 P. 2d 100.

And while the allegations of the information were not as much in detail as they should have been, we would not be justified in saying that they were insufficient, under our procedure, to sustain the judgment and sentence, provided the facts justified.

Under the statute above quoted, the offense of assault and battery was an included offense and the court instructed the jury under this statute.

The evidence in this case revealed that the defendant was married, and he and his wife had separated. She was living at the home of Mrs. Charles E. Smith (no relation to the defendant or his wife) in Tulsa, and had been there since about October 6, 1940. There had been some discussion of a reconciliation between defendant and his wife. He had talked with her on the evening prior to February 3, 1941, and had at that time taken her out of a car driven by another man, and returned her to the home of Mrs. Smith, telling her he would be back the next morning. He also told her, according to his own testimony, that if he ever caught her with the man again there would be serious trouble. About S :30 on the morning of February 3, 1941, defendant went to the home of Mrs. Smith, where his wife was staying. His wife saw him coming, and ran into the kitchen, because she was afraid of him. Mrs. Smith went to the door. Her testimony about what happened is as follows :

“A. When she (Juanita Smith, wife of defendant) saw him coming she ran into the kitchen and I went to the door, and he said, ‘I come after Juanita and those things.’ And I said, ‘Fred, Juanita says she isn’t going, and she isn’t going to let you have the things, and don’t come in and create any scene at all; I am ready to go to work, so don’t come in.’ And he just pushed me aside and he came in anyway. He didn’t even touch me, but he came on in anyway, and then when we stopped inside the door, he saw this boy there that came after me. Q„ Mr. Donham? A. Yes, Mr. Donham. He was checking up some lamps for me, we were going to take them to be painted at the shop, he was holding one. And he looked at him, and he said, ‘So you have an audience, that is fine, I like an audience when I am putting on a show.’ Q. Who said that? A. Fred Smith. I said, ‘Fred, you are wrong, there is no audience present. Travis came after me like he always does, I have him come after me most every morning.’ And I said, ‘You are wrong, there isn’t anything planted.’ And by that time he had told Juanita, Mrs. Fred Smith, he wanted her to get her things ready and get going. She said, ‘No, Fred, I am not going with you.’ He said, ‘Yes, you are, now.’ And he told her then that he wanted to get the things, they had some cooking utensils that they had brought back there after Christmas, and they had them there in my store room. And he told her to get those things. She said she didn’t have the key. And he said, 'Weil I will get the key.’ And she said, 'You will do better than Ralphy and I have ever did, because we haven’t had the key for over a week.’ Th_at was the key to my little closet, you know. And he said, 'I will take a screw driver and I will break the lock.’ I said, 'No, Fred, you are not going to do that, this is my home, and you are not going to break this lock.’ I said, 'If you do I will call the police, that is the only thing I can do.’ Then he told me if I did he would knock my head off and stomp it on the floor, was the words he used. So I started over to the phone, and I picked up the phone, and he come up and the first lick hit me here in the cheek bone, and it hit me with such force that it knocked the phone from my hand, and he stepped back in the living room and I was in the bedroom where the telephone was. So he was back in the livingroom there, and I went around through the bedroom back to the kitchen and I got a butcher knife and I went and said, 'Now, Fred, don’t hit me again,’ just like that. And somehow or other I laid the knife down on a little stand in the corner of the room to take my coat off, and when I did he made a dash for the knife and got it. Then he said, 'I don’t like you, I will just make a triple killing, kill you all.’ And I don’t know where — just then it seems like Juanita came in, and looked like he was going to hit me there, and I was about to die with the pain in my eye where he had hit me under that cheek bone. And I told Travis then — that is, Donham, he was standing there — I said, 'Travis, you go call the law.’ and he stepped up to Travis and drew the knife up, and said, 'Stand right where you are.’ And I said to Travis, 'Don’t do a thing.’ I didn’t want him to get into it with him, I was afraid he would hurt him. Then T walked around back through my bedroom into the front room and went to the front door and out, and I says, 'I will go down the steps, Fred, and call the law.’ Fred hollered, 'You come back here.’ But I went to my neighbors across the street and asked her to call the law for me. And as I went back in he had the butcher knife in his hand at the time, and had some of Juanita’s clothes laying across bis arm, and he said he ought to knock my head off for me, and he would right there, he told me, and that is when he hit me in the jaw and knocked me down, and when he knocked me down he was kicking me, and then Travis laid the lamp down and came running over to him, and they got into it, and they were fighting and that ended .our fight.”

As to her physical condition, Dr. IT. J. Black testified:

“Q. Can you tell the jury whether or not she was suffering from a,ny injuries at that time? (about 9:30 a. m., February 3, 1941, Avhen he examined her). A. Yes, sir. Q. Describe those injuries to the jury, and give the extent of them, please sir. A. The left eye was black and swollen, the left cheek was swollen, and she had a broken lower jaw, through the angle of the jaw on the left side. Q. Were there any other injuries? A. She also had a large bruise over the left hip. Q. Any other injuries that you recall? A. That is all. Q. Now, this injury to the jaw, you say, — doctor—or tell the jury whether or not that is a serious injury. A. Yes, it was. Q. And was it necessary for you to wire the jaw or the bones together? A. Yes, we wired the lower jaw to the upper jaw, so she had to drink for a period of seven weeks.”

Travis B. Donham, a witness for the state, and who was present during all of the difficulty, fully corroborated the evidence of Mrs. Smith, as did Mrs. Juanita Smith, wife of the defendant, who had secured a divorce from defendant, and who was placed upon the witness stand by the defendant.

Defendant, as a witness in his own behalf, testified to coming to the home of Mrs. Charles E. Smith, on the morning of February 3, 1941; that Mrs. Smith came to the door, and he asked her, “Where is Dude?” (his wife), and she answered, “In the kitchen.” That he walked in and told his wife to get her things, that they were going to leave, and that they could get those things they had stored in the closet. That his wife said the closet door was locked and she didn’t know where the key was, and that she Avasn’t going to let him have the things they had stored there. She then told Mrs. Smith to let him have the key and let him have them, bnt Mrs. Smith said, “No, I will not let him have them, I Avill call the police.” That, “she begun cnssing me then and calling me sons of bitches, and said she Avould call the police. She started to call the police and I started to protect myself, and she struck at me and I struck her, hit her upon the cheek bone.” That Mrs. Smith then went to the kitchen and returned with a butcher knife, and “she said she would cut my head off if I even got close to her. I got hold of the knife then and held to it until T got outside. She went across the street and had a neighbor call the police. During that time I had my wife to get her things, and had them on my arm, going out the door, when she came back from the neighbors about that time, and met her in the living room. We got to arguing again, and she kept calling me sons of bitches, and I got to the front porch, I lost the knife on the front porch, and I struck her and she went down. Travis Donham hit me from the side, and then he and I started fighting, and Avound up on the sidewalk outside.” He denied that he at any time kicked the prosecuting witness.

The defendant introduced four Avitnesses who testified to his good character as a peaceable and laAV-abiding citizen. They were from Tulsa, and the place where he formerly lived.

It Avill be noted from the evidence above quoted that the main injury inflicted upon the prosecuting witness was the breaking of her jaAV, which was done by the defendant striking her with his fist. There is no evidence on the part of the state or the defendant that the using of the shoes of defendant was in such manner as to cause them to be considered as a dangerous weapon, in the sense intended by the statute above quoted, and as construed by the decisions of this court.

We have carefully reviewed this record. There can be no condoning the conduct of this defendant toward this elderly woman. According to her testimony, he entered her home without her consent and struck her without justification. However, the act was an assault and battery, according to the evidence. The defendant having been charged with assault with a dangerous weapon which is a felony, the district court had jurisdiction to' try the defendant, and having assumed jurisdiction, had the right to submit to the jury the included offense of assault and battery, though this crime is a misdemeanor. Moody et al. v. State, 11 Okla. Cr. 471, 148 P. 1055.

Under the facts as above outlined, we are of the opinion that the judgment and sentence in this case should be modified from the sentence of three years in the penitentiary to a fine of $100 and costs, and 30 days in the county jail, the maximum punishment prescribed by the statute for the crime of assault and battery. Murphy v. State, 61 Okla. Cr. 284, 67 P. 2d 978; Bayne v. State, 72 Okla. Cr. 52, 112 P. 2d 1113; French v. State, 73 Okla. Cr. 141, 118 P. 2d 664.

As só modified, the judgment and sentence of the district court of Tulsa county is affirmed.

JONES, P. J., concurs. DOYLE, J., dissents.


author: JONES, P. J.

text:
    C. B. BENNETT v. STATE.
    No. A-10332.
    Oct. 11, 1944.
    (152 P. 2d 388.)
    O. A. Brewer, of Hugo, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This is an attempted appeal from a judgment of conviction in the district court of Choctaw county, where the defendant, C. B. Bennett, was sentenced to serve four years’ imprisonment in the State Penitentiary for the crime of manslaughter in the first degree.

A petition in error, with what is denominated a case-made attached thereto, was filed in this court on. September 23, 1942. Subsequent thereto, on May 8, 1943, by order of this court, said case was set for oral argument on May 27, 1943. At the time set for oral argument, no one appeared on behalf of defendant, and there have been no briefs filed in his behalf.

Subsequent thereto, the Attorney General filed a motion to dismiss the appeal and affirm the judgment, for the reason that the appeal had been abandoned, was taken for the purpose of delay only, and was wholly without merit. This motion to dismiss the appeal was set by order of this court for oral argument on September 20, 1944, and due notice thereof given to the defendant and his counsel of record. On said date, no appearance was made on behalf of said defendant and no response has been filed to the motion to dismiss.

It is the settled rule that, where the defendant appeals from a judgment of conviction and no briefs are filed and no argument presented, this court will examine the evidence to ascertain if it supports the verdict and examine the pleadings, instructions of the court, and the judgment; and, if no fundamental error is apparent, the judgment will be affirmed.

The instrument attached to the petition in error, which is called a case-made, is not a case-made. It does not set forth the evidence, and is not even sufficient to constitute a transcript of the record, as it does not include the information nor the judgment and sentence pronounced upon the verdict of conviction nor any other instrument except the motion in arrest of judgment. It is apparent from an examination of the record before us that the attempted appeal was taken solely for delay and is wholly without merit.

Subsequent to the submission of this cause on the motion to dismiss on September 20, 1944, there was filed an application by counsel who stated that they had just been employed by defendant to investigate his case and prosecute his appeal and asking this court for an additional 60 days in which to file a brief. In view of the insufficiency of the record which has been filed herein, and in further consideration of the length of time said case has been pending on appeal in which absolutely nothing was done to perfect the appeal or respond to the various orders made by this court setting said cause for hearing or directing that briefs be filed, this court is of the opinion that the application for an additional 60 days should be denied. There is nothing in the record filed in this court upon which any assignment of errors could be based, and for that reason further delay would be wholly unjustified.

It is, therefore, ordered that the judgment and sentence of the district court of Choctaw county is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    Ex parte IRA CLARK.
    No. A-10490.
    Oct. 11, 1944.
    (152 P. 2d 389.)
    Kirksey M. Nix, of Eufaula, for petitioner.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. At-ty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, Ira Clark, is now confined in the State Penitentiary at McAlester.

The undisputed facts are that petitioner was convicted in the district court of Wagoner county on March 19, 1919, of the crime of murder, and was sentenced to confinement in the State Penitentiary at McAlester for life. On August 27, 1931, he ivas granted a parole by the Governor. In 1934 he was arrested in this state for a crime committed in the State of Kansas, and an extradition was granted by this state, and petitioner was taken to the State of Kansas and convicted of the crime of burglary in the second degree, and sentenced to serve a term of three years in the penitentiary of that state. His parole was thereafter revoked by the Governor of Oklahoma, and at the time of his discharge from the Kansas penitentiary, he was returned to this state, and is now confined in the penitentiary, to serve the balance of his term.

The petition for release by habeas corpus is based upon the contention that “at the time the Governor ordered the delivery of said petitioner to the State of Kansas, and turned said petitioner over to the Kansas authorities, the said Governor in a legal respect agreed with the Kansas officers to release and relinquish all claims upon your petitioner to serve the balance of his sentence in the State Penitentiary, and said extradition would serve as a full 'and complete pardon of petitioner’s j udgment in this state.”

To support this contention petitioner relies mainly upon the case of Carpenter v. Lord, 88 Or. 128, 171 P. 577, L. R. A. 1918D, 674, and the following cases are cited: Hughes v. Pflanz, 6 Cir., 138 F. 980, 71 C. C. A. 234; State ex rel. Nicholson v. Bush, 136 Tenn. 478, 190 S. W. 453; State ex rel. Attorney General v. Peters, 43 Ohio St. 629, 4 N. E. 81; Drinkall v. Spiegel, 68 Conn. 441, 36 A. 830, 36 L. R. A. 486.

The state in its response and brief cite the following cases: Ex parte Youstler, 40 Okla. Cr. 273, 268 P. 323; Ex parte Hamilton, 41 Okla. Cr. 322, 273 P. 286; Ex parte Ford, 46 Okla. Cr. 247, 287 P. 1057. See also Ex parte Foster, 60 Okla. Cr. 50, 61 P. 2d 37; and In re Mose, 74 Okla. Cr. 134, 324 P. 2d 264.

We haye carefully examined all of the aboye cases, and find that the facts in the case of Carpenter v. Lord, supra, have no application to the facts as they exist in the instant case. The Oklahoma cases cited by the state are directly In point, and have settled this question against the contention of the petitioner.

In the Ford Case, supra, the petitioner had been convicted in Ottawa county on a charge of robbery, and confined in the penitentiary to serve a sentence of 11 years. Officers from the State of Kansas made application to the government of this state for his release, and to take him to the State of Kansas. A parole in the usual terms was issued. While in the State of Kansas Ms parole was revoked and he was apprehended in Texas and returned here, and again imprisoned. It was contended that the release by the Governor was a pardon and operated as a full discharge of the remainder of the term for which petitioner was sentenced. This contention was not sustained. In the syllabus, it was stated:

“The instrument designated as a parole signed by the Governor and attested by the Secretary of State, providing for the release of the convict named from the state penitentiary, and containing the conditions enumerated in the opinion, which among others provides that the convict shall be delivered to certain authorities of the state of Kansas and shall there report to certain other authorities, which conditions are expressly agreed to by the convict by indorsement thereon, is not by said condition' divested of its character as a parole.”

This decision is supported by the other Oklahoma cases cited above.

For the reasons stated, the writ of habeas corpus is denied.

JONES, P. J., concurs. DOYLE, J., not participating.


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    R. H. DENTON v. HUNT, Warden.
    No. A-10413.
    Oct. 25, 1944.
    (152 P. 2d 698.)

      A. L. Beckett, of Oklahoma City, for applicant.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus instituted by E. H. Denton for and on behalf of his son, Robert H. Denton, Jr., to secure his release from confinement in the State Penitentiary, where he is serving a sentence of life imprisonment upon conviction for the crime of murder. Robert H. Denton, Jr., will be hereafter referred to in this petition as the petitioner.

The petitioner was convicted in the district court of Oklahoma county of the crime of murder and sentenced to death. .An appeal was taken to this court and judgment rendered on November 15, 1935, sustaining the conviction, but directing that a jury be impaneled to determine the present sanity of the accused. Denton v. State, 58 Okla. Cr. 275, 53 P. 2d 1136. Subsequent to the rendition of said opinion, a petition for rehearing was filed and denied. At that time, the mandate of this court was issued to the district court of Oklahoma county. After the issuance of the mandate and upon application of the accused, permission was granted to file a second petition for rehearing and an order was made by this court recalling the mandate from the district court of Oklahoma county. In the meantime, subsequent to the issuance of the mandate and prior to the filing of the second petition for rehearing, the accused made application to the Governor for clemency, and the Governor commuted the death sentence to a term of life imprisonment in the State Penitentiary. Subsequent thereto, this court rendered a per curiam opinion adhering to the conclusions reached in the original opinion, but vacating that part of the original opinion which ordered a sanity hearing to be held for the defendant.

In the original opinion by Judge Edwards, the various assignments of error presented in the appeal were reviewed and considered at length. One of these assignments was the contention of the defendant that the trial court erred in overruling the motion in arrest of judgment after the verdict was rendered on account of the present insanity of the defendant. This court, after reviewing the various assignments of error, sustained the prosecution on everything but the ruling on the motion in arrest of judgment. This court’s ruling on that point as shown by the original opinion is as follows:

“We find no substantial error in the record up to this point. The court properly overruling the motion for a new trial. His error in overruling the motion in arrest of judgment, without submitting the question of present sanity to the jury, does not require a retrial of the case. The order of the court overruling motion in arrest is vacated and the judgment set aside and the case is remanded to the district court of Oklahoma county, with instructions to impanel a jury as provided by section 3212, Okla. Stat. 1931 [22 O. S. 1911 § 1162], and try the issue of the present sanity of defendant. If the verdict in such trial shall be that defendant is sane, judgment and sentence shall be in accordance with the verdict; if the verdict shall be that defendant is insane, judgment and sentence shall be suspended until he be restored to sanity and for further proceedings as provided by law.”

On rehearing the following order was made':

“Per Curiam. Opinion was heretofore filed in this ease on the 15th day of November, 1935, thereafter petition for rehearing was filed by the plaintiff in error and was granted.
“Pending the rehearing, we are officially advised that the Governor of this state, under his constitutional authority, has extended clemency to plaintiff in error by commuting the sentence from death to life imprisonment and that such clemency has been accepted.
“Upon further consideration, the original opinion is adhered to, but on account of the grant of clemency that part of the opinion ordering a sanity hearing is abated.”

It is now contended by the petitioner that the judgment of the district court of Oklahoma county has been vacated and this court lost jurisdiction to recall the mandate after its issuance and that the district court because of the lapse of time has lost jurisdiction to proceed further in the case in accordance with the original opinion, and therefore, it is the duty of this court on habeas corpus to discharge the prisoner from custody.

It is first contended that this court is without authority to recall the mandate after its issuance by the clerk of this court. The Criminal Court of Appeals has exclusive appellate jurisdiction in all criminal cases and, as such, is given authority to issue writs of habeas corpus, and may promulgate such rules governing said court and prescribing the procedure that may be followed as it may deem necessary. 20 O. S. 1941 §§ 40 and 41. The rules of this court are set forth in the appendix to volume 44 of the Oklahoma Criminal Reports.

Under the general superintending power which this court exercises over all inferior courts in this state in criminal cases and in aid of its appellate jurisdiction, it appears that this court should have authority upon application of the defendant to recall a mandate after its issuance. It is well settled by authorities from every jurisdiction that the mandate may be recalled after it is spread upon the records of the trial court where there has been fraud, accident, inadvertence, or mistake in connection with the issuance of the mandate.

The Supreme Court of Oklahoma, in the case of Thomas v. Thomas, 27 Okla. 784, 109 P. 825, 113 P. 1058, 35 L. R. A., N. S. 124, 133, Ann. Cas. 1912C, 713, stated:

“Petition for Rehearing After Transmission of Mandate — Jurisdiction. Where, after a decision of a case, and rendition of an opinion in this court, its mandate is regularly transmitted to the trial court and is spread upon its records, this court in the absence of fraud, accident, inadvertence, or mistake, is without jurisdiction to recall the mandate and entertain a petition for rehearing, and a motion for leave to file the same will be denied.”

In Thompson v. Nickle et al., 113 Okla. 44, 239 P. 649, it is held:

“This court has jurisdiction to recall a mandate only when it clearly appears from the record that same was issued through inadvertence or mistake and in violation of the rules of this court.”

The better rule seems to us to be that as one of the powers of the Criminal Court of Appeals under its appellate jurisdiction, it is competent for it to determine whether it will resume jurisdiction for any purpose, and having decided to- do so, it may then request the court below to return the mandate so that re-argument may be had or the mandate amended as the case may be. It is technically true that this court must be repossessed of the mandate before an order made in the cause is effectual. This is true because of the rule that two courts will not be given jurisdiction over a cause at the same time.

However, it does not seem to us that it is necessary to decide this point for the reason that the mandate was recalled at the request of the defendant. The steps that were taken were in accordance with the application presented in his behalf. He received all of the benefits of such application, and this court will not allow him to say that the proceedings under which the mandate was recalled were invalid. Ex parte Walker, 58 Okla. Cr. 285, 52 P. 2d 111; Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419.

With this conclusion established, we come now to the question as to the effect of the per curiam opinion rendered on rehearing. Although some of the language used might be improved upon, the intent and purpose of the original opinion and the court’s action on rehearing is not confusing. The original opinion decided all contentions adversely to the defendant except that he was entitled to a sanity hearing before being committed to the penitentiary. After this opinion was rendered and mandate thereon issued, and subsequent to the commutation of the death sentence to life imprisonment upon application of the defendant, the per curiam opinion was handed down vacating that part of the original opinion which directed that a sanity hearing for the defendant be held. This left the original opinion upholding the sufficiency of the evidence and the verdict of guilt. The petitioner and counsel who formerly represented him evidently took that view of the matter because eight years passed without the present question ever being raised. Counsel who now represent petitioner was not the counsel who appeared for him in the presentation of his appeal. However, present counsel has vigorously presented contentions of petitioner, and his argument is not without considerable merit. However, where the intention of this court is ascertainable from the opinion which was rendered, we feel that it would be thwarting justice to attempt in this proceeding to read into the record something which manifestly was not intended to be there included.

There is another reason why the petition for writ of habeas corpus will be denied. It is the rule of this court that where the Criminal Court of Appeals has denied an application for writ of habeas corpus, it will not ordinarily entertain a subsequent application for such writ on the same grounds and facts or any other grounds or facts existing when the first application was made whether then presented or not. In re Arthur, 75 Okla. Cr. 315, 131 P. 2d 135; Ex parte Berrie, 75 Okla. Cr. 115, 129 P. 2d 88; Ex parte Davis, 74 Okla. Cr. 75, 123 P. 2d 300; Ex parte Gray, 74 Okla. Cr. 200, 124 P. 2d 430. In the case of Ex parte Denton, 69 Okla. Cr. 204, 101 P. 2d 276, this same petitioner presented his petition for a writ of habeas corpus and it was denied.

For the reasons herein above stated, the petition for writ of habeas corpus is denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


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    PERRY BOYDSTON v. STATE.
    No. A-10445.
    Oct. 25, 1944.
    (152 P. 2d 701.)

      Tyree & Busby, of Lawton, for plaintiff in error.
    Bandell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., Ralph Cline, Co. Atty., of Lawton, for defendant in error.
   BAREFOOT, J.

Defendant, Perry Boydston, was charged in the district court of Comanche county with the crime of rape in the first degree, was tried, convicted, by the court sentenced to serve a term of 25 years in the penitentiary, and has appealed.

Being unable to make bond pending his appeal, this defendant is now confined in the State Penitentiary at Mc-Alester, and for that reason his case has been advanced.

For reversal of this case, it is contended:

“First, the trial court erred in permitting the state’s witnesses Dwight Malcolm and O. F. Wolverton to testify in rebuttal over the defendant’s objection concerning matters which were a part of the case in chief.
“Second, the evidence of the State was not sufficient to prove the crime charged in the information.”

These contentions may be considered together.

Defendant was charged in the district court of Comanche county by information, with the rape of Norma Jean Parker, an Indian girl of the age of six years, on November 23, 1942.

The prosecutrix attended school in the town of Cache, but lived with her grandmother, Nora Parker, about three miles northwest of town. She went to and from school in the public school bus. On November 23, 1942, she was playing in the school yard after being dismissed from school, and missed her bus. She went to the home of her maternal grandmother, Mary Tarsip, who lived just across the street from the school grounds, and where her mother, Frances Tahsequah, lived. Upon hearing that her little girl had missed the bus, the mother and Audrey Pohawpatchoko went up to the business section of the town of Cache, a distance of between a quarter and half a mile, for the purpose of finding someone to take the prosecutrix home. The mother and her friend Aubrey intended to go along. They saw the defendant on the street and asked him if he Avould take them. He informed them that he could not tell at that time, as he was waiting for his brother-in-laAV. In a very short time, 15 or 20 minutes, he saAV them again and told them that his brother-in-law had not come, and he could not take them, and they began to search for someone else.

Defendant immediately entered his automobile and droAre to the premises where the prosecutrix was playing in the yard of her grandmother, and told her that he was going to take her home, and that they would go by town and pick up her mother. The prosecutrix did not Avant to go with him, but upon the suggestion of her grandmother and Sarah Burgess, who Avas present at the home of the grandmother, that they would pick her mother up downtoAvn, she entered the back seat of the automobile, and defendant drove away. He did not go by town and pick up the mother, as promised, but proceeded toAvard the home of Nora Parker. HoAveArer, he did not go by the most direct and most traveled route. It was on this trip that it is charged defendant raped the prosecutrix. He then took her to the gate, about a quarter of a mile from her grandmother’s home and let her out of the automobile, and he drove on, returning to the town of Cache.

The prosecutrix, who Avas crying, immediately went to the home and told her aunt, Alice Parker, who Avas there, what had occurred. The aunt, Alice Parker, had seen the prosecutrix get out of the car, and she immediately sent for the grandmother of prosecutrix, Nora Parker, who Avas picking cotton in a nearby field. The two women examined the clothing of prosecutrix, and both testified that she had blood spots on her clothing, and that she told them defendant had brought her home, and what he had done to her. The grandmother at once started to Cache, walking through the field and pasture, to inform the officers.

In the meantime, the mother of prosecutrix, being unable to find anyone to take the child home, returned to the home of her mother, Mary Tarsip, and learned that her daughter had left in the automobile with the defendant. She went to the store of Mrs. Weber, a neighbor, and asked her to take her out to see if the child had reached home safely. Juanita Swanson, the daughter of Mrs. Weber, took the two women, Frances Tahsequah and Audrey PohawpatchokO', in an automobile, and they drove toward the home of Nora Parker. As they got near the house, Frances saw the prosecutrix in the yard with Alice Parker, her aunt, and the other children, and, assuming that she was all right, they turned around and returned to Cache, not knowing that anything had happened to her little girl. Her reason for not going to the house was that she thought her baby would cry to go with her, if she saw her. Her testimony was corroborated by Audrey Pohawpatchoko and Juanita Swanson.

Upon their return to town, Frances Tahsequah and Audrey Pohawpatehoko went to the home of Mary Tarsip, where they had dinner, and later went to the picture show. They saw the defendant at the show, and a short time after their arrival there, Frances was informed of the condition of her little girl, and made complaint against the defendant, who was arrested while at the picture show. She went in an ambulance to the home of Nora Parker, and there saw and examined her child, and found the same condition as testified to by Alice Parker and Nora Parker. She went in the ambulance with the prosecutrix to the .Kiowa Indian Hospital, near Lawton.

Upon their arrival at the hospital, Dr. E. J. Allgood examined the prosecutrix, about 11 o’clock on the night of November 23, 1942, and only a few hours after the attack. He testified that she was emotionally upset, and was put to bed, and the following morning, about 9 o’clock, a more thorough examination was made by Dr. Allgood, Dr. J. W. Whigham, and Dr. J. M. Frazier, who Avere all regular physicians at the hospital. That part of the testimony of these physicians which is important to a decision of this case was as f o'üoavs :

(Dr. E. J. Allgood) “A. At night. On external examination she had a little mucous discharge, pinkish discharge Avith a slight laceration on each side of the vagina, on the lower part of the vagina. She was so emotionally upset, we didn’t do very much that evening; put her to bed. Q. After that examination by you, did you, and in the presence of other doctors on the staff, cause an examination to be made? A. The following morning. Q. What time the following morning was that? A. About 9. Q. About 9 o’clock? That would be Tuesday morning, November 24th? A. Yes, sir. Q. And it would be less than 12 hours after she was received at the hospital? A. Yes, sir. Q. If you will, Doctor, tell the jury what you found and jointly concurred in reference to that examination. A. It Avas very similar to the evening before, except Ave didn’t find the discharge. There was a paper — I had better read the statement that we made. (Beads) ‘Examination reArealed a mucous membrane tear betAveen the hymen and the labia-minora on each lateral side. There was also a small mucous membrane tear at the posterior angle of the vaginal entrance. The hymen is ruptured and irritated and marginal edges are swollen. There is considerable eAddenee gf external trauma having been recently applied.’ Q. Do you qualify the last statement further as to the length of time? A. Within the last 24 hours. Q. And that examination at the hospital Avas made about 9 o’clock the following morning? A. Nine o’clock. Q. For the purpose of informing the jury, will you direct to them the meaning of the word ‘trauma’? A. That is an injury to the parts. Q. From both the original examination which you conducted and the joint examination the following morning and based upon your qualifications as a doctor, and your experience in matters of this sort, would you state that the private organ of Norma Jean Parker had been entered into by some object? A. Well, there had been an attempt to enter into it by some object. Q. Was there any internal part of the organ that was torn, lacerated or bleeding? A. There was a small mucous, a pink discharge at the time she was admitted. Well, it was, I don’t know what you mean by internal. If you mean- — ■ Q. In other words, were there or were there not any lacerations on the external part of her private part which were bleeding? A. There was a mucous tear between the labiaminora and the libia-majora, which as you call it, more or less, is an internal part of the individual. Q. And that Avould cause penetration of some degree into the entrance of the vagina. A. Yes, sir. Q. Based upon your examination, do you say that there was an entrance by some object into the inner, however slight, of her private organ by some object? A. However slight, yes, sir, I would say so. The hymen Avas ruptured. Q. The hymen was ruptured? A. Yes, sir. Q. So for the information of these gentlemen over there, being men of common experience, how far into the inner paid of the private part of a female is the hymen normally located? A. That would depend upon the size of the indiAÚdual but probably one-half inch. Q. One-half inch? Was the location of Norma Jean Parker’s hymen normal? A. Yes, sir. Q. You Avould say, by virtue of your examination that, at least there was inception of some object of one-half inch, or more? A. Yes, sir.”

And on cross-examination this witness testified:

“Q. From your examination of the sexual organ of Norma Jean Parker, were you able to determine Avhether it had been penetrated by a sexual organ of a man? A. No, I couldn’t say that.”

Dr. J. W. Whigham testified in part:

“Q. If you will, just tell the court and jury the results of your examination and your expert conclusions with reference to the alleged, rape committed on her person the day before? A. Well, what I saw was jnst about all I could state, and that was this laceration of the labiaminora, slight laceration of the libia-minora. The hymen was perforated, and had been penetrated, mashed thru, or torn, and a small laceration at the posterior or back part of the vagina. I believe that is just all. . . . Q. From your examination made on the 24th day of November, and based upon your qualifications as a doctor, your experience as such, would you state that the private part of Norma Jean Parker had been entered by some object? A. I couldn’t tell that, because in looking at the laceration of the hymen, it looked like something had gone through the hymen, but, of course, just what entered into it, I couldn’t Q. Some object? You would state some object? A. Yes, sir, I would think some object, some object certainly ruptured that hymen. Q. From the location of those internal parts and from that examination, how far, in your opinion, had some object entered? A. I couldn’t make a positive statement on that other than just to say it was far enough to rupture this hymen. Q. How far was her hymen located from the outer surface? A. Probably something like one-half inch from what they call the labia-minora, the outer lip, one-lxalf inch back. Something like that, depends occasionally on circumstances. Q. Would you then unqualifiedly state to this jury on that examination, there was some penetration of, at least a half inch by some object in the private part of Norma Jean Parker? A. .From the labia-minora,, yes, sir.”

Mr. J. M. Frazier testified:

"Q. From that examination, tell the jury what you, as a doctor, discovered with reference to her private parts? A. Weil, I found she had certain injuries which could be described exactly as a tear on either side of what they had previously called the labia-minora. There was a tear on either side of the opening and a tear on the back portion, and the hymen had been broken. That was all. Q. From that examination would you, or would you not, as a doctor, state to this jury that some object had entered the private part of Norina Jean Parker? A. Yes, sir, had. Q. To what extent, in your best judgment and experience? A. It had gone far enough to break the hymen, which is a sort of membrane covering the opening. Q. What in this instance was the distance between the entrance and the hymen? A. Approximately one-half inch.”

It is contended by the. defendant that the evidence is insufficient to sustain the judgment and sentence, for the reason that it does not show “penetration,” which is necessary in a case where rape is charged.

To sustain this contention, counsel rely upon the case of Kitchen v. State, 61 Okla. Cr. 435, 69 P. 2d 411, 414. In that case the judgment was reversed, but a careful reading of the facts reveals that they are materially different from the facts in the instant case. There the prosecuting witness was not placed upon the witness stand. Here she testified. It is true that by reason of her tender age, and her agitation she herself could not definitely testify as to positive penetration. In the Kitchen Case the doctor who made the examination immediately after the alleged attack, did not testify to the finding of “spermatozoa” when he made his examination. He testified that he “found no indication or bruises, or any injury of the parts and no enlargement of the vagina and made a test.”

J udge Hoyle in the opinion stated:

“In cases of this kind, when the offense is committed upon a child of tender years and who, for want of knowledge and experience, may be incapable of giving testimony, it often happens, as in this instance, that direct and positive proof of penetration cannot be made, and in such cases the utmost reliance is placed on the testimony of the medical witnesses. . . .
“In this case there was no evidence whatever of external violence or injury to the parts; nothing whatever that would indicate penetration. It does not appear that any complaint or statement was made by the little girl to her mother or to the officers who discovered her with the defendant.
“There being no proof of penetration, either direct or circumstantial, we are clearly of the opinion that the evidence was not sufficient to show that the crime was consummated, and for this reason the court should have sustained the motion for a new trial on the ground that the verdict was contrary to law and to the evidence.”

In the Kitchen Case a review of the early authorities by this court and from other states is given. It is unnecessary to unduly lengthen this opinion by here referring to them. The facts in the Kitchen case are clearly distinguishable from the facts here presented. In this case three doctors testified to the bruised and injured condition of the prosecutrix, and that in their opinion penetration had been made to the extent of at least half an inch. Of course they could not testify as a matter of fact that this penetration was made with the male organ, but the jury was amply justified in finding from the surrounding facts and circumstances and the testimony of the doctors who examined the prosecutrix that there was penetration. 21 O. S. 1941 § 1113, provides:

“The essential guilt of rape, except with the consent of a female over fourteen years of age, consists in the outrage to the person and feelings of the female. Any sexual penetration, however slight, is sufficient to complete the crime.”

The defense offered by the defendant in this case was that of an alibi. He claimed that he was on the streets of Cache, and at his home in Cache during the time that the alleged offense was committed, and attempted to support this defense by the testimony of his mother, two brothers, and one other witness. To speak of it in the most favorable terms, the evidence was conflicting. The time element in connection with the alibi was so close, and the defendant was in such close proximity to the place where the crime was committed and at the time it was committed, and the jury having passed upon the evidence, would be sufficient for this court, to refuse to set the judgment and sentence aside. See the case of Gregg v. State, 69 Okla. Cr. 103, 101 P. 2d 289.

The jury was clearly justified in finding that the defendant went to the home of the grandmother of prosecutrix and took prosecutrix in Ms automobile. He was identified by a number of witnesses who knew him, and some of them saw him take her into the car. These witnesses were Mary Tarsip, the grandmother, and Sarah Burgess, who were at the home from where she was taken by defendant; and also O. F’ Wolverton, who testified to knowing the defendant; of seeing him at the Tarsip home; of talking with him; and that defendant told him he was taking the little girl to her home in the country.

Deputy Sheriff Joe Cable testified to statements made on the night of the arrest of defendant; and Assistant County Attorney Dwight Malcolm testified to the statements made the next day after the arrest.

Defendant in Ms brief does not insist upon the question of his defense of an alibi, but he does contend that the court erred iu permitting the witnesses Dwight Malcolm and O. F. Wolverton to testify as rebuttal witnesses, for the reason that their namés Avere not endorsed on the information and were not on the list of witnesses furnished defendant.

The testimony of the witness O. F. Wolverton was clearly in rebuttal of the testimony of the defendant as to Ms alibi; and the testimony of Dwight Malcolm Avas to the same effect. The evidence of DAvight Malcolm Avith reference to the statement made by defendant tended to contradict, defendant’s testimony that he was not present at the time and place he Avas charged with raping the prosecutrix. This was also true of the testimony of O. F. Wolverton.

We have carefully examined the record, and do not find that any error was committed demanding a reversal of this ease. The defendant was given a fair and impartial trial. The. crime which he committed was upon a six-year-old Indian girl. His purpose and reason cannot he comprehended.

The judgment of the district court of Comanche county is affirmed.

JONES, P. J. and DOYLE, J., concur.