210 P.2d 372 | Okla. Crim. App. | 1949
The plaintiff in error, defendant below, William B. Hancock, was charged by information, tried by a jury, convicted of first degree rape, and sentenced to 35 years in the penitentiary in the district court of Tulsa county, Okla. The information, in substance, alleged that on or about September 27, 1948, the defendant had sexual intercourse with Velma Maydine Hancock, a girl 13 years of age, his daughter, contrary to the provisions of Title 21 O.S.A. 1941 §§ 1111[
The defendant's first contention is directed at the proof of the age of Velma Maydine Hancock. He contends that she was probably over 14 years of age. This contention is predicated purely upon speculation. It is unsupported by any substantial evidence in the record. The girl's positive testimony was that she was 13 years of age, and would be 14 her next birthday on October 27, 1948. In Day v. State,
"Age may be proven by the testimony of the person whose age is in question, although knowledge of that fact is derived from statements of parents or from family reputation."
Moreover, a signed confession given by the defendant on September 30, 1948, and admitted in evidence without objection, corroborates the testimony of the prosecutrix in this regard. The confession in this connection reveals:
"Q. How old is she? A. She will be 14 in October. Q. Do you know her birthday? A. Yes, she was born on October 27, 1934. Q. Were you present at her birth? A. Yes."
The defense in an attempt to contradict the foregoing facts offered the testimony of Mrs. Velma Robison, sister of the defendant. Her testimony in relation to the birthday of Velma Maydine Hancock was so contradictory as to be of no weight whatsoever. After fixing the date of her birth at October 27, 1933, she admitted on cross-examination that she had no personal knowledge of the exact date upon which Velma was born, and she was testifying only from just hearsay, or from just what other people had told her. This contention is therefore wholly without merit.
Further, the defendant contends there was no proof of penetration. In this connection the record discloses *72
in relation as to how the defendant disposed himself on the occasion of the rape the following: "Q. He put it inside of you? A. Yes." At another place in the record she said "He just put it down in me." Moreover, it discloses that she indicated that her private parts was the place where he put it inside her. She further said sometimes there was some discharge on her legs. The record further discloses that the defendant contracted gonorrhea from his daughter, after she returned from a hitchhiking trip with her mother. The contraction of gonorrhea from his daughter was evidence of penetration. The defendant did not testify in his own behalf to deny his daughter's testimony, or the statements contained in his confession. Proof of penetration however slight is sufficient. Swearingen v. State,
The discussion in the preceding paragraph constitutes a complete answer to the next contention of the defendant, that the evidence was insufficient to establish the corpus delicti. It is urged that it cannot be established by the defendant's confession standing alone. In the latter statement he is correct, Looney v. State,
Finally, the defendant urges that when viewed in light of the court's prior decisions in similar cases, the penalty imposed is excessive, and urges us to invoke the provisions of Title 22 O.S.A. 1941 § 1066[
"The power of this court to modify judgment by reducing punishment in furtherance of justice, is not the power to commute by the Chief Executive, since judicial *74 power to modify a judgment, and executive power to pardon are distinct; one being an award of justice, another being an act of grace.
"Criminal Court of Appeals has the power to modify a judgment and reduce a sentence inflicted by the jury or trial court, but this power cannot be arbitrarily used and can only be exercised where it appears from the record that an injustice has been done in assessing the punishment upon the defendant."
In the light of all the circumstances herein, and after consideration of the adjudicated cases involving such situations, we are of the opinion that to modify this judgment, as was said in the Lancaster case, supra, we will be exercising the power of clemency instead of performing an act in furtherance of justice, and as was held in Shimley v. State, supra, would constitute purely an arbitrary exercise of power. The judgment of the district court of Tulsa county, Oklahoma, is accordingly affirmed.
JONES, P.J., and POWELL, J., concur.