text:
    PARIS RUPERT v. STATE.
    Nos. A-1319, A-1320.
    Opinion Filed April 19, 1913.
    (131 Pac. 713.)
    1. FORMER JEOPARDY — Execution of Judgment. The constitutional provision (section 21, Bill of Rights), “nor shall any person he twice put in jeopardy of life or liberty for the same offense,” and the common-law principals therein declared are broad enough to mean that no one can be twice lawfully punished for the same offense. Hence, when a court has rendered judgment and imposed sentence upon a plea of guilty for the offense charged, and such judgment and sentence has .been executed and satisfied, that ends the protection, and the power of the court as to that offense is at an end; and the court is without jurisdiction to render a second judgment and sentence upon the same charge.
    2. SAME — “Jeopardy" Defined. Jeopardy, in its constitutional and common-law sense, has a strict application to criminal prosecutions only; and the word “jeopardy,” as used in the Constitution, signifies the danger of conviction and punishment which the defendant in a criminal prosecution incurs when put upon trial before a court of competent jurisdiction under an indictment or information sufficient in form and substance to sustain a conviction.
    3. SAME — Validity of Judgment. The defendant, upon his plea of ' guilty, was sentenced; to pay a "fine of $100 — a punishment that is authorized by the statute for the offense charged. On the same day he paid the fine and satisfied the judgment. A month later he was brought into court, the original sentence- was set aside, and he was sentenced to pay a fine of $100 and to be confined in the county jail for 15 days. Held, that the second judgment and sentence is, under such circumstances, null and void.
    (Syllabus by the Court.)

      Appeal from. Blaine County Court; George W. Ferguson, Judge.

    Paris Rupert was convicted in two cases of the violation of the game laws, and he appeals.
    Reversed.
    These cases arising upon like facts and involving the same principles of law will be considered together.

      From the records in the respective cases, the following facts appear:
    February 23, 1911, there were filed two informations in the county court of Blaine county; each charging plaintiff in error, Paris Rupert, with a violation of the game laws. On these informations the said Paris Rupert was arraigned on February 24, 1911, and entered pleas of not guilty thereto. On April 3, 1911, both cases were assigned for trial April 19th. ■On April 13th it appears that he withdrew his plea of not guilty and entered his plea of guilty in each case, and on the same day he was sentenced to pay a fine of $100 and costs in each case. On the same day he paid the fine in each case and received a'receipt therefor, as follows:
    “In case 1758 and 1759, April 13, 1911, received from Paris Rupert two hundred dollars in payment of fines, State v. Rupert, $200.00.
    [Signed] “Geoege W. FebgusoN,
    “County Judge.”
    And thereupon he was released. Thereafter, on April 18, 1911, he paid the costs in each and received a receipt therefor, as follows:
    “April 18, 1911.
    Received of Paris Rupert as costs in case No. 1758.$17.80 Received of Paris Rupert-as costs in case No. 1759. 12.15
    $29.95
    [Signed] “W. C. Buet, “Clerk of the Court.”
    The record shows that as a part of the costs so paid items were charged for journal entries and recording judgments. The record further shows that on April 14th the court turned over to the deputy game warden the sum of $100; the same being one-half of the fine in each case. On May 9th the plaintiff in error was rearrested on what is termed an alias warrant, and on the same day he was brought before the court and again sentenced. The judgment of the court in each case.is as follows:

      ’ “It is therefore ordered and adjudged that the judgment and sentence of this court shall be that the defendant pay a fine of $100.00 and serve in the county jail at hard labor for a period of fifteen days, and that the defendant pay the costs of this .action, including the county attorney’s fee. It is further ordered that in case of default of the payment of the said fine that the said defendant be confined in the county jail at the rate of $2.00 for each day of the said fine costs and fees.”
    The plaintiff in error was on said day ordered committed to jail in execution of the first sentence. Thereupon he applied to this court for a writ of habeas corpus, which was denied. See Ex parte Rupert, 6 Oída. Cr. 90, 116 Pac. 350. He then filed motions for new trials in the lower court, which were overruled. He gave notice of appeal, and the court fixed bail in the sum of $500 in each case. From the judgments, appeals were perfected. The question presented in each case is the same.

      Wm. O. Woolman, for plaintiff in error.

      Ghas. West, Atty. Gen., and Smith G. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The single question presented for our decision is: Could the county court legally impose the judgments and sentences appealed from? Otherwise stated, has a court the power to revise and increase a judgment and sentence at the same term after it has' been executed and satisfied?

The general power of a court to reconsider its judgment and sentence and reverse, vacate, or modify it at any time during the term in which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put into operation, is undeniable. Bish. New Crim, Proc. sec. 1288, and cases cited. This power is inherent in all courts of record. However, it would seem there must, in the nature of the power thus exercised by the court, be in criminal cases some limit to it. It is clear that a court cannot pass two sentences for the same offense, to be enforced at the same time. And the validity of a second judgment and sentence must be because the first judgment and sentence is legally annulled or revoked and made void.

That no person shall be twice put in jeopardy for the same offense is a universally accepted principle of the common law, and this principle has been embodied in the federal Constitution and in all state Constitutions, and it is incorporated in the Constitution of the state of Oklahoma by express provisions, as follows:

“Nor shall any person be twice put in jeopardy of life or liberty for the same offense.” (Sec. 21, Bill of Rights.)

Jeopardy, in its constitutional or common-law sense, has a strict application to criminal prosecutions only. The word “jeopardy,” as used in the Constitution, signifies the danger of conviction and punishment which the defendant in a criminal prosecution incurs when put upon trial before a court of competent jurisdiction under a valid indictment, information, or complaint, and in this use it is applied only to strictly criminal prosecutions. Stout v. State, 36 Okla. 744, 130 Pac. 553.

“A person is not in legal jeopardy until put upon trial before a court of competent jurisdiction under an information or indictment sufficient in form and substance to sustain a conviction.” (Cooley, Const. Lim. [7th Ed.] 467, and cases cited.)

We think this provision of the Bill of Rights, and the principle therein declared, is broad enough to mean that no person can be twice lawfully punished -for the same offense. The one follows from the other, and this constitutional provision is designed and intended to protect the accused from a double punishment as much as to protect him from two trials. For this reason we think that where a judgment and sentence has been executed and satisfied that ends the prosecution, exhausts the power of the court, and terminates its jurisdiction, and the court is without power or jurisdiction to render another judgment and sentence in the case.

The leading ease upon this question is Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. In that case the defendant was convicted of appropriating mail bags, of the value of less than $25, the punishment for which offense, as provided by statute, was imprisonment for not more than one year-or a fine of not less than $10 or more than $200. The sentence was one year’s imprisonment and $200 fine. The defendant was committed in pursuance of the sentence and paid the fine the day after his commitment. On the second day after his commitment he was brought by habeas corpus before the same judge who sentenced him, who vacated the former judgment and sentenced the defendant anew to one year’s imprisonment. The case came before the Supreme Court of the United States on habeas corpus, and the defendant was discharged, on the ground that, where a statute imposes as a punishment a fine or imprisonment, and the court has both fined and imprisoned the defendant, who thereupon pays the fine, the court has no power, even during the same term, to modify the judgment by imposing imprisonment instead of the former sentence. One of the alternative requirements of the statute having been satisfied, the power of the court as to the offense was at an end. Mr. Justice Miller, delivering the opinion of the court, said:

“The judgment of the court to this effect being rendered and carried into, execution before the expiration of the term, can the judge vacate that sentence and substitute fine or imprisonment and cause the latter sentence also to be executed? Or, if the judgment of the court is that the convict be imprisoned for four months, and he enters immediately upon the period of punishment, can the court, after it has been fully completed, because it is still in session of the same term, vacate that judgment and render another, for three or six months’ imprisonment, or for a fine? Not only the gross injustice of such a proceeding, but the inexpediency of placing such a power in the hands of any tribunal, is manifest.
“If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offense, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.
“The principle finds expression in more than one form in the maxims of the common law. In civil cases the doctrine is expressed by the maxim that no man shall be twice vexed for one and the same cause. ‘Nemo debet bis vexari pro una et eadem causa.’ It is upon the foundation of this maxim that the plea of a former judgment for the same matter, whether it be in .favor of the defendant or against him, is a good bar to an action. In the criminal law the same principle, more directly applicable to the case before us, is expressed in the Latin, ‘Nemo bis punitur pro eodem delicto / or, as Coke has it, ‘Nemo defbet bis puniri pro uno delicto.’ No one can be twice punished for the same crime or misdemeanor/ is the translation of the maxim by Sergeant Hawkins. Blaekstone, in his Commentaries, cites the same maxim as the reason why, if a person has been found guilty of manslaughter on an indictment, and has had benefit of clergy, and suffered the judgment of the law, he cannot afterwards be appealed. Of course, if there had been no punishment, the. appeal would lie, and the party would be subject to the danger of another form of trial. But by reason of this universal principle that no person shall be twice punished for the same offense that ancient right of appeal. was gone when the punishment had once been suffered. The protection against the action of the same court in inflicting punishment twice must surely be as necessary, and as clearly within the maxim, as protection from chances or danger of a second punishment on a second' trial.
“The common law not only prohibited a second punishment for the same offense, but it went further and forbade a second trial for the same offense, whether the accused had suffered punishment or not, and whether in the former trial lie had been acquitted or convicted. Hence to every indictment or information charging a party with a known and defined crime or misdemeanor, whether at the common law or by statute, a plea of auterfois acquit or autrefois convict is a good defense. * * * If we reflect that at the time this maxim came into existence almost every offense was punished with death or other punishment touching the person, and that these pleas are now held valid in felonies, minor crimes, and misdemeanors alike, and on the difficulty of deciding when a statute under modern systems does or does not describe a felony when it defines and punishes an offense, we shall see ample reason for holding that the principle intended to be asserted by the constitutional provision must be applied to all cases where a second punishment is attempted to be inflicted for the same offense by a judicial sentence.
“For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offense? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction,' and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? Is not its intent and its spirit in such a case as much violated as if a new trial had been had, and on a second conviction a second punishment inflicted? The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.
“But there is a class of cases in which a second trial is. had without violating this principle, as when the jury fail to agree, and no verdict has been rendered, or the verdict set aside on motion of the accused, or bn writ of error prosecuted by him, or the indictment was found to describe no offense known to the law. * * *
“We are of opinion that when the prisoner, as in this case, by reason of a valid judgment, had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone; that the principle- we have discussed then interposed its shield and forbade that he should be punished again for that offense. The record of the court’s proceedings at the moment the second sentence was rendered, showed that in that very case, and for that very offense, the prisoner had fully performed, completed, and endured one of the alternative punishments which the law pré-scribed for that offense, and bad suffered five days’ imprisonment on account of the other. It thus showed the court that its power to punish for that offense was at an end. Unless the whole doctrine of our system of jurisprudence, both of the Constitution and the common law, for the protection of personal rights in that regard are a nullity, the authority of- the court to punish the prisoner was gone. The power was exhausted; its further exercise was prohibited. It was error, but it was error because the power to render any further judgment did not exist. * * *
“There is no more sacred duty of a court than, in a case properly before it, to maintain unimpaired those securities for the personal rights of the individual which have received for ages the sanction of the jurist and the statesman; and in such cases no narrow or illiteral construction should be given to the words of the fundamental law in which they are embodied. Without straining either .the Constitution of the United States or the well-settled principles of the common law, we have come to the conclusion that the sentence of the circuit court, under which the petitioner is held a prisoner, was pronounced without authority, and he should therefore be discharged.”

In these cases the informations were verified by a deputy state game and fish warden.

The statute prescribes the punishment for violation of the game law, as follows (section 3563, Comp. Laws 1909, Rev. Laws, 6885) :

“It shall be a misdemeanor to violate any section of this act, if not otherwise provided in this act, and upon conviction shall be punished by a fine of,not less than ten dollars ($10) or more than one hundred dollars ($100), or by imprisonment in the county jail not less than ten days or more than thirty days, or both such fine and imprisonment.”

Thus it will be seen that the court pronounced judgment and. sentence in both cases, as authorized by statute, for the offense of which the defendant pleaded guilty, and that in accordance with section 3557, which provides that when a deputy game and fish warden makes the complaint he shall receive one-half of all fines collected upon his complaint, the court, when said fines were paid, paid the complaining witness his proportionate share of the fines paid by the defendant.

The object and purpose of rendering the second, judgments is not apparent. However, it is immaterial, as the county court had no jurisdiction to render the judgments and sentences appealed from.-

Said judgments are therefore reversed.

ARMSTRONG, P. J., and FUKMAN, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    ROY PEEL v. STATE.
    No. A-1858.
    Opinion Filed April 22, 1913.
    (131 Pac. 548.)
    APPEAL — Escape—Dismissal of Appeal. Where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered in . the case; and where a defendant makes his escape from the custody of the law and becomes a fugitive from justice the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from District Court, Oklahoma County; W. B. Taylor, Judge.

    Eoy Peel was convicted of crime, and appeals.
    Dismissed.

      Dams & Nowlin, William E. Zwick, and Giddings & Gid-dings, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, forthe State.
   DOYLE, J.

The plaintiff in error, Eoy Peel, was convicted of the crime of aiding suicide, under an information filed in the district court of Oklahoma county March 11, 1912, and in accordance with the verdict of the jury was sentenced to serve a term of seven years in the state penitentiary at Me-Alester. The judgment and -sentence was entered May 23, 1912.

From the judgment an appeal was perfected by filing in this court, November 23, 1912, a petition in error with case-made. The Attorney General has filed a motion to dismiss said appeal, which, omitting the formal parts, reads as follows:

“Comes now' the state of Oklahoma by Chas.- West, Attorney General, and moves the court to dismiss the appeal herein, and for grounds therefor says: That the appellant, Eoy Peel, is now and has been for some time a fugitive from justice from the state of Oklahoma; that the sherifiE of Oklahoma county has made diligent search for the said Eoy Peel in an endeavor to arrest him pursuant to certain writs issued out of the courts of Oklahoma county; that the bondsmen of the said Eoy Peel have offered a reward for his arrest and apprehension, but that the said Eoy Peel is now a fugitive from justice and beyond the jurisdiction of this ' court, as the Attorney General is informed and verily believes — the facts herein stated being shown by the affidavit of M. C. Binion, sherifiE of Oklahoma county, attached hereto and made a part hereof.”

The said affidavit reads as follows:

“That he is now the duly qualified and acting sheriff within and for said Oklahoma county, in the state of Oklahoma, and has been since the 6th day of January, 1913; that on the 3d day of March, 1913, he was commanded b,y the clerk of the county court within and for said county and state to apprehend and place in jail one Eoy Peel, who had been heretofore convicted in said county court of the crime of violating the prohibitory law, and who had thereafterwards been paroled by the Governor on condition that he pay twenty dollars per month on his fine and costs, and said parole having been revoked by the said Governor said order was made by the county court, as aforesaid. Deponent further says that he and his deputies have made diligent search for the said Eoy Peel, and are unable to arrest him or find out where he is now staying, and that his bondsmen have offered a reward -for his arrest and apprehension.”

The question presented by the motion to dismiss is the same as the one decided in Belcher v. State, ante, 130 Pac. 515, wherein it is held that, where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider his appeal, unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the cause; and where the defendant makes his escape from the custody of the law, and is at large as a fugitive from justice, this court will, on motion, dismiss his appeal.

It is our opinion that plaintiff in error has waived the right to have his appeal in this case considered and determined, the motion to dismiss is sustained, the appeal is dismissed, and the cause remanded to the district court of Oklahoma county, with direction to carry into execution its judgment and sentence.

ARMSTRONG, P. L, and FUKMAN, J., concur.


author: FUBMAN, J.

text:
    WILLIAM MAGGARD v. STATE.
    No. A-1310.
    Opinion Filed April 26, 1913.
    (131 Pac. 549.)
    1. APPEAL AND ERROR — Verdict—Evidence. It is the duty of the jury to settle all conflicts in the testimony, and this court will not disturb a verdict where it is sustained by any testimony which reasonably tends to establish the guilt of the defendant, unless it appears from the record that the jury were influenced by improper motives in accepting the testimony of the state and rejecting the testimony of the defendant.
    2. EVIDENCE — Accomplice'—Instruction. It is not error for the trial court to refuse to give an instruction as to the law applicable to the testimony of an accomplice, where the defendant has been convicted of manslaughter in the second degree for having negligently discharged a pistol in the dark, which resulted in the death of the deceased, and where the evidence fails to show that the alleged accomplice aided, abetted, or encouraged the defendant to fire said shot.
    (Syllabus by the Court.)

      Appeal from District Court, Caddo County; Frank M. Bailey, Judge.

    William Maggard- was convicted of manslaughter in the second degree, and he appeals.
    Affirmed.
    The evidence, as far as it is material, may be stated in narrative form as follows:
    The record discloses that on the Sunday afternoon of December 4, 1910, appellant armed himself with his “Forty-four” and a supply of cartridges, and went to a neighbor’s for dinner, and early in the afternoon went to the home of Ira B. Cooper, and spent the afternoon entertaining and being entertained by Cooper’s daughter Bertha. Late in the afternoon, he left Cooper’s place and went to one Antone Gesseck’s place (which the evidence discloses was a gambling and drinking place); he there found Bertha’s father entertaining Antone and the other guests, and being entertained by Antone’s wares. Appellant joined Cooper at Gesseck’s and they had several drinks with him, and during the two or three hours that they were at his place did several pistol stunts by twirling the pistols around their fingers. Some time between 8 and 9 o’clock Cooper suggested that he had to go home and he and appellant went out of the Gesseck house together. Marion Miller, an old man 65 years old, a few minutes after Cooper and appellant left, suggested- that he had to go home (he living only a few yards from the Gesseck house). Shortly after this Gesseck and Jacobs heard the shots fired, one of which was evidently thé one that killed Miller.
    From the time appellant and Cooper left Gesseck’s there is a material conflict in their testimony. Appellant “stumbled and run five or six steps south of the house and then fell down, and I went and helped him up, and Mr. Miller came out of the door, and he asked, him to help him up, and I said, 'Let’s go home,’ and he said, 'No, let the old man come on, and we will scare him,’ and I did not agree to it.” It is agreed that appellant and Miller got ©ne on each side of Cooper and went on towards home with him, and that, after going something like a 100 yards, Miller decided they could go on home without him. The evidence conflicts here again. Appellant claims that when Miller decided to turn back, and turned Cooper loose, "Cooper pulled his gun and began shooting, and appellant lay' down, that Cooper shot three times, and the second shot Miller fell. His evidence further shows that Cooper’s pistol only held six shells, four of which were shot before leaving Gesseck’s house, during which time appellant gave him one shell; three shots being fired at the time Miller was killed and one up near the house after that, making according to his testimony eight shots fired by Cooper, with only seven shells, as appellant denied firing any shot.
    Cooper’s testimony in substance is that, when he started away from Gesseck’s he stumbled a few steps and fell down, when Miller suggested he would help him home, at which time appellant stated to Cooper, “We will scare hell out of him.” After going down the road about 100 yards, Miller decided to turn back; Maggard “then produced his gun, showed me his gun like this, and Miller stopped and stepped behind me like this, and Maggard stopped and jumped behind me like this, and some one shot behind me.”
    Cooper’s evidence is also, in substance, that after the one shot there were two other shots fired behind him; he was facing south; that both appellant and Miller were behind him, north of him.
    The evidence of both Cooper and daughter is that when they got to the house Maggard remarked they had been having some fun; when Maggard returned and stated that the old man (Miller) was still lying down in the road, Cooper said, “You didn’t hit him, did you Bill, when you were shooting?'’, to which appellant answered “No,” and ,he asked' Cooper what he must do about it. .
    The record discloses that appellant was, on the night of the homicide, very much worried about something after this shooting. The record may not disclose all that took place between these parties during the time after they left the Ges-seck place and the time of the homicide, but this much is clear: That the deceased, an old man 65 years old, an trying to assist' one drunk man and one drinking man homle, was shot and killed by the negligent act of one of the parties. The only persons there except the deceased were appellant and Cooper. Appellant says Cooper fired the shot that killed Miller; Cooper’s evidence discloses that it was Maggard who fired the fatal shot. He is corroborated by Bertha and Bhoda Cooper, who testify relative to the conversation between these two men when Mag-gard returned to the house after having found Miller’s body still in the road. That his story is true is strengthened by the actions of this appellant after the shooting.

      George T. Webster, for appellant.

      Smith '0. Matson, Asst. Atty. Gen., for the State.
   FUBMAN, J.

(after stating the facts as above). First. It is contended by counsel for appellant that the -verdict is not supported by the testimony. The record discloses the fact that the deceased, an old man 65 years of age, was attempting to assist one drunk man and one drinking man home, and that he was shot and killed by the negligent act of one of these parties. Appellant testified that the shot which killed Miller was fired by the state’s witness Cooper. Cooper’s testimony is to the effect that the fatal shot was fired by appellant. He is corroborated by the evidence of Bertha and Bhoda Cooper, who testify to conversations between Cooper and appellant after the shooting was over, ’and his statement was further strengthened by the actions of appellant after the shooting. The credibility of the witnesses was a question for the jury, and there is nothing in the record to warrant us in .holding that the jury were influenced by improper motives in accepting as true the testimony of the state’s witness Cooper, and rejecting the testimony of appellant. We therefore cannot sustain the contention that the verdict is contrary to the testimony.

Second. It is contended that the court erred in failing and refusing to instruct the jury on the law applicable to the testimony of an accomplice; it being contended that Cooper was the accomplice of appellant. The act of appellant which the jury found resulted in the death of the deceased was negligently discharging a pistol in.the dark. There was no proof of concerted action between appellant and Cooper in this matter. According to appellant’s testimony Cooper killed Miller, and he, appellant, had nothing to do with it. According to Cooper’s testimony, appellant killed Miller, and Cooper took no part in it. This court should certainly not take a more favorable view of the evidence in behalf of appellant than is disclosed by his own testimony. The mere fact that Cooper was present when the shot was fired would not make him the accomplice of appellant, unless he did some act encouraging, aiding, or abetting the appellant in doing the act which resulted in the death of the deceased.

We therefore hold that the court did not err in failing to give the instruction requested.

No other questions are presented to the court by the petition in error or were discussed in the brief of counsel for appellant. Therefore none other will be considered.

The judgment of the lower court is in all things affirmed.

ABMSTBONG-, P. J., and DOYLE, J., concur.


text:
    R. E. L. MORRIS v. STATE.
    No. A-1453.
    Opinion Filed April 26, 1913.
    (131 Pac. 731.)
    1. RAPE — “Rape in Second Degree” — Elements of Offense. An act of sexual intercourse accomplished with a female, not the wife of the perpetrator, over fourteen and under the age of sixteen years, is rape in the second degree, whether such act is accomplished by means of force or with consent..
    2. SAME — Evidence of Other Offenses. The general rule that proof of other offenses is inadmissible unless a part of the res gestae does- not apply to offenses involving sexual intercourse; and evidence of other acts is admissible to show the relation and familiarity of the parties, and as tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction.
    3. SAME. In a prosecution for statutory rape evidence is admissible of sexual acts between the prosecutrix and the defendant prior to and subsequent to the one charged and relied upon for a conviction, as indicating continuousness of the illicit relation. In so far as the ease of Cecil v. Territory, 16 Okla. 19T, 82 Pac. 664, 8 Ann. Cas. 457, conflicts herewith, it is overruled.
    4- EVIDENCE — Self-Serving Acts — Proof of Other Parties. A defendant cannot introduce evidence of his own self-serving acts andl declarations not constituting a part of ‘the res gestae-, and' he is not bound to make an effort to show that some other person -is-guilty of the crime for which he stands charged, at the peril of furnishing by his failure to act or by his silence, evidence against himself when on trial upon the charge, and ’the admission of such evidence over his objection, constitutes reversible error.
    5. TRIAL — Argument of 'Counsel. The state, in a criminal prosecution, does not seek a conviction unless the evidence shows guilt beyond a reasonable doubt. Nor will it permit its prosecuting officers -to use any unfair means in the trial, or illegal' argument in his address to the jury, to the prejudice of the defendant.
    6. RAPE — Evidence of Prosecutrix — Corroboration—Necessity. While it is the law that a conviction for rape may be sustained upon the uncorroborated evidence of the prosecutrix, it is nevertheless-equally well settled that, when such evidence is Inherently improbable and almost incredible,. there must be corroboration by other evidence as to the principal facts to sustain a conviction.
    ('Syllabus by the '.Court'.)

      Error from District Court, Greer County; G. A. Brown, Judge.

      & R. B. ■ L. Morris was convicted of statutory rape, and brings error.
    Reversed.

      A. R. Garrett, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, hereinafter referred to as the defendant, was, in the district court of Greer county, convicted under an information filed in said court May 9, 1910, the charging part of which is as follows:

"On or about the 6th day of June, 1909, in the county of Greer, state of Oklahoma, one R. E. L. Morris, a male person, did then and there unlawfully and feloniously have, commit, and accomplish an act of sexual intercourse with Lola Morris, a female person, and did then and there carnally know and ravish the said Lola Morris; she (the said Lola Morris) being then and there under the age of 16 years and not the wife of the said R. E. L. Morris.”

The judgment and sentence of the court entered July 18, 1911, was that he serve a term of 50 years’ imprisonment. To reverse the judgment, an appeal by case-made was perfected.

The facts and circumstances surrounding this case, as disclosed by the evidence, are as follows: The defendant, when 20 years of age, married a widow 31 years of age; she having four children at the time. They lived together in Mississippi, where they were married, for about eight years, and then separated. Three' children were born of this marriage. About one year after the separation, the wife moved to Texas with the children. Between three and four years later, after some correspondence between the defendant and his wife regarding, their. childrén, he went to Texas and with their mother’s con-cent took his two oldest daughters to Oklahoma and went to farming; his mother keeping house for him.

The conviction was had npon the uncorroborated testimony of the defendant’s oldest daughter, Lola Morris, who testified, in substance, that she and her next younger sister went to live with her father and his mother in March, 1905, near Granite, Okla. That in' June, 1905, they moved to Caddo county and lived with one of her father’s brothers, and while there she and her sister slept on a pallet on the floor in a room with their grandmother, and there her father had sexual intercourse with her the first time by coming to her pallet. That at that time she was 12 years of age. That he repeated the act three or four'times a week while they were at his brother’s. That in a short time they moved to another place in Caddo county and lived there in a house of one room for about a year, and the defendant continued to have intercourse with her every night or two while they lived there. 'That they then moved back to Greer county, and in- 1909 they lived near Eeed. That the defendant continued to have intercourse with her oil and on all the time while he was at home. That here they, lived in a two-room house; the defendant and his mother had beds in one room, and she and her sister had a bed on the floor in the- other room, where it was his habit to come and have intercourse with her. That on Sunday night, June 6, 1909, the time alleged in the information, he had intercourse with her, and as the result she became pregnant and gave birth to a child March 2, 1910. She was then asked whether or not the defendant continued to have sexual intercourse with her after the act on the first Sunday in June, 1909, and over the objection of the defendant answered:

“A. Well, he continued on; he was not at home all the time, but once in a while he would be and when he was there it was every night or two. He was never gone over two weeks at a time, and when he was there it was every night that he had intercourse with me up until the last part of August or the first of September.”

That her grandmother and sister had no knowledge of the defendant’s improper relations with her. She further testified that along in October or November he tried in various ways to cause her to miscarry and gave her medicine to cause a miscarriage, and that he said “he didn’t want any one to know that it was him;” and “he told me to tell that it was some one else; that I didn’t know;” and “he told me to tell that I was out walking one evening, somewhere about dusk, and that a man passed by and stopped and had intercourse with me;” and “that this man came two or three nights after that to my bed in my room.” That she told this story first to Mrs. Meade when she was confined, and afterwards to Mr. Henry, the county attorney, and to Sheriff Tittle. And also old the story to the defendant’s attorneys, and that Lawyer Morris said that, if her father was guilty, he would not defend him, and she told him her father was not guilty. That after her mother had been with her a month she first told the truth by making a statement at her uncle’s, her mother’s brother, in accordance with her testimony. She also stated that her father took her and her sister to Sunday school whenever he was at home. She further stated that she played dominoes with a boy' about her own age while she was herding cows, and that there ivas a water hole near the house and the neighbors’ boys would come up there to water their horses, and sometimes they would come to the well and to the house for a drink when her father was away from home. That there was one boy that wanted to take her buggy riding, but her father told her she could not go and he would not allow her to keep company with the boys or go driving with them, and she said, “I guess I can go with them when I am 16;” and he said, “I will see about it;” that she “thought a right smart of a boy down there, but he was not exactly a lover;” his name was Will Alexander. That she went back to Texas with her mother and there married D. W. Baldock.

Ethel Tolliver, a half-sister, testified that Lola Morris would be 18 years of age August 1, 1911.

Pauline Morris testified that she was 14 years old January 21, 1909, and had lived with her sister, father, and grandmother for several years. She was then asked and permitted to answer over the defendant’s objection: “Did your father ever make any effort to find out who was the father of that child, as far as you know? A. No, sir.”

On- behalf of the defendant, Sheriff Tittle testified that he heard Mr. Morris, an attorney, ask Lola Morris if her father was the father of the child and she answered that he was not. That, when the defendant’s attorneys insisted that she tell the truth of the matter, “she said she first met a man out from the house and afterwards he had been at the house.” That at the time of this trial the defendant 'had been in his custody in the jail for ten months.

J. W. Morris, a brother of the defendant, testified that after her confinement he heard her tell the defendant’s' mother that there were three persons she had improper relations with; two of their names she did not know, and the other was a young man named “Knight,” and he had left the country, but she did not know who was the father of her child.

The testimony of Mrs. J. 'W. Morris was substantially to the same effect.

Mrs. Meade testified that she was with Lola Morris during her' confinement. and questioned her about who was the father of the child and she answered that she did not know.

W. E. Meade testified that in 1909 he lived one-half mile from the defendant; that there was a locust grove of about two acres near the defendant’s house; that Mr. Pressley farmed the land around the house and he had two sons, one grown, the other about 16 years old; that' he frequently saw young men go to the defendant’s house or about the house.

Several character witnesses testified that they knew the reputation of R. E. L. Morris in the Reed community as to being 'a moral man and that his reputation was good.

The defendant, as a witness on his own behalf, testified that during the year 1909 he traveled selling medicine, making regular trips of from one to two weeks; that his mother kept house and eared for his two daughters, Lola and Pauline; that his mother was aged and her health was poor, and that she had died shortly after his airest; that his brother Rev. A. M. Morris lived a near neighbor. He denied having had improper relations of any kind at any time or at any place with his daughter Lola, and testified directly contrary to her on all material points. He stated that she told him Mack Alexander’s boy, about 19 years of age, often came there and talked to her; that Mr. Pressley cultivated the place he lived on and he had two boys nearly grown; that Mr. Richardson had 50 head of hogs in a pasture there that summer and his two sons were there every day he was at home, drawing water from the well for the hogs; that Mr. Rogers, a neighbor, had two unmarried boys at home that were often about his place; and that Mr. Depew had sons that were about grown, and that Mr. Higgins had a hired man working on the crop there. That the first he knew of the trouble his mother told him that Lola’s monthly periods failed and he would have to get some medicine for her, so he obtained some Wine of Cardui from a merchant at Reed, and his mother informed him every time he came home that it did not have the proper effect. That after using three bottles his mother said to him, “I am afraid that your daughter is ruined.” When he found out the condition that she was in he asked her about it. She claimed that she did not know anything for some time; finally siie claimed “that she had met a party up the road, and later on some one had come to her bed when she was sleeping in the doorway.” He denied advising her to procure a miscarriage; also that he advised her to make any statement about how she got that way. And the reason that he never inquired of his daughter Pauline about the matter was, “I considered it too delicate a matter to talk to a child of her age upon any such subject.” That Mr. Pressley and Mr. Depew were the originators of tbe rumors against him and went about trying to get some one to make an affidavit against him. That, “after they failed on that, then they put up a correspondence between the mother and got her to come up here and make the affidavit and I was arrested on her information,” and that “Mr. Pressley and Mr. Depew had disagreed with him on religious points and they disliked him very much.”

The first assignment of error is that the court erred in overruling the defendant’s demurrer to the information. We think the demurrer was properly overruled.

In the case of Myers v. State, 6 Okla. Cr. 389, 119 Pac. 136, it is said:

“The allegation, ‘rape, ravish, and carnally know, would be fully sustained by proof of carnal intercourse with a female under the age of 16 years. Whether the act is accomplished by means of force or , with consent is immaterial. Therefore this clause did not extend, limit, or modify the crime charged, and might have been omitted. However, it is not inconsistent, and, at most, it may be treated as mere redundance.”

The information is sufficient.

Certain assignments of error are based upon the’ rulings of of the court on the admission of testimony. Now, as to these alleged errors, complaint is made to the ruling of the court admitting evidence of acts of sexual intercourse subsequent to the one charged in the information. In support of this contention counsel cites the case of Cecil v. Territory, 16 Okla. 197, 82 Pac. 654, 8 Ann. Cas. 457, and quotes from the opinion the following language:

“While, as above stated, former acts of sexual intercourse may be considered by the jury as corroborating evidence, it is just as well settled that such acts, occurring subsequent to the one charged and relied on for conviction, cannot be considered by the jury as corroborating evidence or for any other purpose, for they have no such tendency. Such evidence would amount simply to proving separate and distinct offenses for the purpose of rendering it more probable in the minds of the jury that the defendant committed the crime charged in the indictment.”

The question is one upon which the decisions are in conflict, but by the later and better authorities the question is well settled in favor of the rule that in this class of cases evidence of acts occurring subsequent to the act for which the defendant is being tried are admissible, although such subsequent act is in and of itself a crime.

In State v. Stone, 74 Kan. 189, 85 Pac. 808, a prosecution for carnally knowing a female under the age of 18 years, it was held that the admission of evidence of subsequent acts of intercourse, which, occurred as late as 15 months after the acts charged in the information, was not error. The rule announced in this case was approved by the same court in the case of State v. Brown, 85 Kan. 418, 116 Pac. 508. Johnston, C. J., in delivering the opinion, said:

“While in that case the subsequent acts were somewhat remote, there were circumstances tending to show continuousness of illicit relations. In the opinion it was said: ‘Subsequent intimacy does illustrate the prior dispositions- of individuals of opposite-sex toward each other, and the question is how far derivable inferences may be carried backward.. Manifestly this is, in the main, a question of weight and not of relevancy/ There was an effort made to have the court modify the doctrine of State v. Stone in State v. Hibbard, 76 Kan. 376, 92 Pac. 304, but after a reconsideration of the question, and the authorities the rule admitting evidence of acts of sexual intercourse occurring after the one upon which a conviction is sought was reaffirmed, and it was held that the doctrine was sustained ‘not only by the better reason but by the greater weight of authority.'

In the case of Woodruff v. State, 72 Neb. 815, 101 N. W. 114, it is said:

“The fact, if it be one, that the evidence tends to prove another and independent crime does not necessarily determine its admissibility as evidence of the crime charged in the ease at bar. The determinative question is, Is it relevant and pertinent in establishing the offense charged, and does it throw some light on that controversy and assist in the. ascertainment of the truth in respect of such charge? We feel confident in the correctness of our position in saying that it does; and, if believed, the evi-denee is corroborative of the ultimate fact sought to be proven; that is, the act of sexual intercourse as charged in the information.”

The rule announced in this case was approved by the same court in the case of Leedom v. State, 81 Neb. 585, 116 N. W. 496. Barnes, C. J., delivering the opinion of the court, said:

“That this evidence was introduced solely for the purpose of corroborating the prosecutrix as to 'the principal fact of her having had sexual intercourse with the defendant on the 20th day of July, 1906, was well understood; and it, as well as other acts of the same kind, which were related in time, and took place subsequently to the one specifically charged in the information, was admissible for that purpose. People v. Mathews, 139 Cal. 527, 73 Pac. 416; State v. Robertson, 121 N. C. 551, 28 S. E. 59; Smith v. Commonwealth, 109 Ky. 685, 60 S. W. 531; Sykes v. State, 112 Tenn. 572, 82 S. W. 185, 105 Am. St. Rep. 972; State v. Borchert, 68 Kan. 360, 74 Pac. 1108.”

The question here involved is discussed in all its phases by Prof. Wigmore in his work on Evidence (volume 1, pars. 216, 398, and 399), wherein his conclusion is stated as follows:.

“That this desire at a prior or subsequent time is relevant to show the probable existence of the same desire at the time in issue is equally clear. The limits of time over which the evidence may range must depend largely on the circumstances of each case, and should be left to the discretion of the trial court. A subsequent existence of the desire is equally relevant with a prior one. It is trae that the contingencies of error are different (i. e., in the former case the desire may have been first induced by intervening circumstances, in the latter it may have been ended by them); but the strength of these contingencies is no greater in one instance than in the other. If. for example, the parties have been intimate during the entire year 1890, and an act of adultery is charged on July 1st, an adulterous desire on December 31st carries no less persuasive weight than an adulterous desire on January 1st. That there is any distinction is generally repudiated. The conduct receivable to prove this desire at such prior or subsequent time is whatever would naturally be interpretable as the expression of sexual desire. Sexual intercourse is the typical sort of such conduct, but indecent or otherwise improper familiarities are equally significant. That the intercourse is also itself criminal is no objection.”

On reason and by the great weight of authority, we think the correct rule is that, in a prosecution for “statutory” rape, evidence of other acts of sexual intercourse between the same parties is admissible, including evidence of acts committed subsequent to the particular act relied upon for conviction, even though it proves other and distinctive offenses as relevant to show the true relation of the parties to each other, and to characterize and explain the act for which the defendant is on trial. It is the general desire to satisfy lust that is involved in this class of cases, and this character of evidence tends to show lustful desire and disposition by showing continuousness of the illicit relation. However, the limits of time over which evidence of this kind may range is largely within the legal discretion of the trial court. In so far as the case of Cecil v. Territory of Oklahoma, supra, conflicts with this opinion, it is overruled.

The state, over the defendant’s objections, was permitted to show by the testimony of several witnesses that, so far as they knew, the defendant made no effort to find 'out who caused his daughter to become pregnant. As an instance, F. M. Pickard testified that he was a deputy sheriff. The transcript then shows the following questions and answers given over the defendant’s objection:

“Q. Did he solicit your aid to find out who was the father of the child? A. No, sir. He never did. Q. When you went out to arrest him, did you discuss this -subject; the subject of his being the father of the child? A- He didn’t have very much to say about it at that time. Q. Hp to the present time, has he ever solicited your aid to get the young man whom he claimed was the father of the child? A. Mr. Morris never talked to me or asked my assistance to get any one or help him in any way that I remember. Q. Did he make any efforts to find out who was the father of the child as far as you know? A. Mr. Morris has never made any pretense toward asking me to help him find -out who was the father of that child. Q. Did he ever make any pretenses towards asking anybody else or making any effort to find out, as far as you know? A. No, sir; he never did.”

This testimony and other testimony of like character was clearly inadmissible. A defendant cannot introduce evidence of bis own self-serving acts and declarations not constituting a part of the res gestae, and surely it cannot be that there is any such anomaly in the criminal law or rules of evidence as is involved in the proposition that a defendant charged by indictment or information is bound to make an effort to show that some other person is guilty of the crime for which he stands charged, at the peril of furnishing, by his failure to act or by his silence, evidence against himself when on trial upon the charge. Manifestly the object of this.method of proof was to impress the jury with the idea that, if the defendant was not guilty, it was his duty to show who was the guilty party. We think the testimony elicited by the questions asked was prejudicial to the substantial rights of the defendant.

Another error assigned is based upon the record as follows:

“Bill of Exceptions No. 2: Be it remembered, that upon the trial of the above-entitled and numbered cause, the following proceedings were had, to wit: H. D. Henry, the county attorney, was addressing the jury in the opening argument for the state, and was referring to the evidence of S. H. Tittle wherein Tittle had testified that he was present in the spring of ] 910 in Mangum when the prosecuting witness, Lola Morris was present and A. B. Garrett, A. J. Morris, attorneys for the defendant, and said Morris and Garrett had a conversation with her and in which conversation the said Morris asked Lola Morris who was the father of her child, and urged her to tell who the father was, and in which conversation the witness Lola Morris denied that her father was the father of her child, and the attorney Morris told the said Lola Morris it was her duty to tell it if her father was guilty, and that he (Morris) would not appear and defend her father if he was guilty, and if she said he was guilty he would not represent her father, and in this connection the county attorney, H. D. Henry, said ‘1 don’t know why Morris is not here/ to which statement the defendant’s attorney excepted, and the court not having heard the statement, being some distance from the county attorney at the time it was máde, permitted the argument to continue, and the county attorney again repeated, ‘That he did not know why Morris [meaning the attorney for the defendant] was not here,’ and again, the defendant excepted. Whereupon the court, addressing Mr. Henry, said, ‘Why do you repeat this and refer to this matter/ and Mr. Henry replied, ‘It is a part of the record, and I have a right to refer to it; it was unexplained why Morris was not here/ Again the defendant excepted to the remarks of the county attorney, and the court then and there reprimanded the county attorney and instructed the jury that they should not consider said remark, and should not consider why the said Morris was not present'; that his absence had nothing to dp with the case, and that the defendant must be tried upon the evidence alone, and told the county attorney he must not refer to this matter again. Whichbill of exceptions is here allowed as being true and correct with the following qualifications, viz.: At the time of defendant’s exception, the counsel, assisting in the prosecution, stated in the presence and hearing of the jury that the state did not claim the attorney A. J. Morris had quit the defense because the prosecuting witness had said defendant was the father of her child or was guilty of the charge against him. Gr. A. Brown, Judge.”

While prosecuting attorneys are not expected to maintain a judicial impartiality, yet it is tlieir duty to present a case fairly and justly. Obviously these remarks were highly improper as a comment upon facts not in evidence before the jury and not legally competent and admissible in evidence. The fact that the court rebuked the county attorney and withdrew his remarks from the consideration of the jury may have cured the vice, yet we are unable to disabuse our minds of the conviction that, all the circumstances being considered, the defendant, may have been seriously prejudiced.

Finally it is contended that the evidence is insufficient to justify or sustain the verdict in that there is no corroborating evidence nor a single corroborating circumstance tending to con-' nect the defendant with the commission of the crime. This court does not hold with some that, as a matter of law, rape cannot be established' by the uncorroborated testimony of the prosecutrix, but in common with all courts recognizes that, without such corroboration, her testimony must be clear and convincing. And, where the testimony of ,the prosecutrix bears upon its face inherent evidence of improbability, there should be corroboration by other evidence, connecting the defendant with the commission of the crime. The law is that the life or liberty of a citizen shall be taken only in case the right to do so is established beyond all reasonable doubt; and while there is no rule of law which forbids a jury to convict of rape on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony, yet the courts have always recognized the danger of conviction on her uncorroborated testimony, and the testimony of the prosecutrix, if inherently improbable and uncorroborated, will not justify or support a conviction; as the only reasonable conclusion in such cases is that such verdicts are the result of passion or prejudice, and therefore contrary to law. The testimony of the prosecutrix that the incestuous relations continued for nearly five years without being detected or discovered by her grandmother or her sister, one or both being present in the room at all times, is incredible. The evidence shows an intense enmity existing for many years between her father and her mother, and it is significant that she had been with her mother more than a month before she changed her former statements by making this unsupported charge against her father. And there is no claim of threats or fear in explaining of her delay in making this statement. The opportunity was ample, and it seems far more probable that some of the young men that the evidence shows frequented her home was the father of her child; and when we consider the testimony of the prosecutrix as a whole with its contradictions and inconsistencies, and that the facts and circumstances in evidence all tend to discredit her, and consider that the evidence of the defendant’s character for virtue and morality, and that he constantly during these years attended church and Sunday school with his two daughters, is uncontradicted, we cannot help but think that the testimony of the prosecutrix was maliciously inspired and that the verdict was more the result of prejudice or public sentiment than the calm and dispassionate conclusion of the jury upon the facts in evidence.

In the case of State v. Gooddale, 210 Mo. 275, 109 S. W. 9, the Supreme Court of Missouri says in discussing a case of this character :

“The all-important question on this appeal is whether the testimony in this case is sufficient to sustain the conviction of the defendant. The admonition of Lord Hale that ‘it must be remembered that this 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/ must be heeded. While it is the law of this state, as in most others, where not modified by statute, that a conviction for rape may be sustained upon the uncorroborated evidence of the outraged female, it is nevertheless equally well settled that the appellate court will closely scrutinize the testimony upon which the conviction was obtained, and, if it appears incredible and too unsubstantial to make it the basis of a judgment, will reverse the judgment. While,, on the one hand, it will not do to hold that, because the evidence indicates a depravity not ordinarily witnessed among men,.it must be rejected, because the annals of crime are replete with examples wherein the most sacred relations have been disregarded and the-testimony left no room for a reasonable doubt of the guilt of the accused, yet, on the other, many well-authenticated decisions attest that this charge has often been the result of malice and hidden motives, and the courts have refused to permit convictions to stand because of the utter improbability of the .testimony, in the light of the conceded circumstances. Instinctively the character of the accused and of his accuser is a prime consideration.”

In that case the court reversed the judgment on account of the unreasonableness of the evidence of the prosecuting witness, although it was a case in w'hieh an uncle was charged with rape upon his niece. The evidence in this case is far more unreasonable than the evidence in that case; and in this case, as in that, the record would give to defendant an unimpeachable character. See, also, People v. Benson, 6 Cal. 221, 65 Am. Dec. 506; Mares v. Territory, 10 N. M. 770, 65 Pac. 165; Monroe v. State, 71 Miss. 196, 13 South. 884; Logan v. State, 148 S. W. 713. The instructions correctly and fairly state the law, and the single objection thereto made is without merit.

It appears from the record that this conviction was upon a second trial, and that the defendant, being unable to give bail in the amount fixed, has now been confined almost three years. It is our opinion that the errors considered, other than the sufficiency of the evidence, require a reversal of the judgment, because the defendant was thereby denied that fair and impartial trial which the law prescribes for a person charged with crime. It is our opinion, also, that no person should be convicted of crime on such improbable, discredited, and unreasonable evidence as that given by the prosecutrix in this case.

The judgment of the district court of Greer county is therefore reversed, and the defendant discharged.

ARMSTRONG, P. J., and FURMAN, J., concur.