Carr v. StateCarr v. State
- Reporters:
- , , ,
- Before:
- Matson
On thе 14th day of April, 1921, an information was filed by the county attorney of Muskogee county chаrging the defendant, William J. Carr, with the crime of incest, alleged to have been committed on his 11 year old daughter, Bertha Carr, on the 5th day of April, 1921.
On a trial in the district court of said county in the month of May, 1921, the .defendant was convicted and sentenced to serve a term of 10 years in the state penitentiary. The conviction is based on the testimony оf Bertha Carr, the prose-cutrix, Cora Carr, her mother, Dr. R. L. Allen and Dr. John E. Lee.
The prosеcutrix testified to an act of sexual intercourse committed by the defendant on hеr on the 5th day of April, 1921, in the morning of said day, in a barn located in the rear of the prеmises where the Carrs resided in the town of Has-kell, Muskogee county. The wife of the defendant testified that she went to the barn that morning and saw the prose-cutrix standing up at one end of the barn in a trough, with her clothes up, and that the defendant was standing up against and in front of her; that as soon as the defendant discovered that she was there he turned frоm her and commenced buttoning up his pants; that she immediately took the proseсu-trix away and had the defendant prosecuted for this offense.
Drs. Allen and Lee both testified that the hymen of the prosecutrix had been perforated, and it did not appear to have *373 been recently done, and that tbe examination was made by thеm in the early part of April, 1921.
It is first contended that the verdict is contrary to the law and еvidence and is not sustained by sufficient evidence. In this connection it is argued that the tеstimony of the prose-cutrix is uncertain and unreliable as to the act of intercourse, and that she is not sufficiently corroborated.
While the testimony of the prosecutrix was elicited at times by the use of leading questions, it must be understood in this connection that she was of the tender age of 11 years, and an examination of the transcript оf her testimony convinces the court that she was a person of at least avеrage intelligence for such age, and that her testimony, if believed, was sufficiently definite and certain to establish the material elements of the offense. While a womаn who consents to the crime of incest knowingly, voluntarily, and with the same intent which actuаtes the man is his accomplice, so that her testimony is governed by the law of accomplice testimony and requires corroboration in order to sustain a conviction, such rule is not applicable where the prosecutrix was at the time of the commission of the offense under the age of consent. 14 R. C. L. p. 37, § 7.
The evidencе in this case is sufficient to sustain the conviction.
It is next contended that Cora Carr, wife оf the defendant, was not a competent witness against him, under section 2699, Compiled Stаtutes 1921. The wife of defendant was permitted to testify for the state without objection by thе defendant.
It is unnecessary in this ease to decide whether in a prosecution fоr incest the erimé is one committed against the *374 wife so as to make her a comрetent witness against ber husband under section 2699, supra.
“It is clear that persons entitled tо object to the competency of a witness may waive their objection аnd permit him to testify; and there is such a waiver where a witness is allowed to testify without objеction though at the time the party knows of his incompetency.” 28 R. C. L. p. 450, § 37.
See, also, Perez v. State, 8 Tex. App. 610; Rodriguez v. U. S., 198 U. S. 156, 25 Sup. Ct. 617, 49 L. Ed. 994; Standley v. Moss, 114 Ill. App. 612; Spence v. Repass, 94 Va. 716, 27 S. E. 583; Curtis v. Tyler, 90 Mo. App. 345; Com. v. Fitzpatrick, 18 Pa. Super. Ct. 529.
While the weight of modern authority is to the effect that in a prosecution for incest the wife is an incompetent witness against her husband, and also there is some authority to the effect that on appeal her testimony should be disregarded, whether objected to or not, nevertheless in this case the wife’s: tеstimony may be wholly disregarded and the conviction still stand because corroboration of the prosecutrix was not absolutely necessary.
Lastly, it is contended that а new trial should have been granted because of newly discovered evidence. We have carefully examined the record with respect to this assignment, and find that thе evidence alleged to have been newly discovered could have, with reasonable diligence, been discovered prior to the trial. For such reason there was no abuse of discretion by the trial judge in overruling the motion for a new trial on this ground.
For reasons stated, the judgment of conviction is affirmed.
DOYLE, P. J., and BESSEY, J., concur.