Thе plaintiff in error, M. C. Hopper, defendant below, was charged by information in the District Court of Tulsa County, Oklahoma, with the 'crime against nature, 21 O.S.1951 § 886, allegedly committed on January 12, 1955, by means of oral genital contact, Berryman v. State, Okl. Cr.,
The evidence was conflicting and presented a question of fact for the jury. It.is sufficient to sustain the verdict. ■
The defendant groups his-' first eight specifications 'of
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error. : Thereunder, ' he urges that the Walker boy’s testimony is rambling' and did not specifically fix the place of the crime. On this point, the complainant definitely testified that it occurred on the highway about one or one and one-half miles from the old Limestone School where Walker attended Easter еgg hunts when he was in the third or fourth grade. In any event, the jury determined the issue on sufficient evidence against the defendant. Sadler v. State,
Next it is urged that Wendell Walker was an accomplicе of the defendant. It has been held that where the victim' of such a participant in the crime against nature consents to the act, he is an accomplice, and the rules as tо corroboration of an accomplice -apply. Cole v. State,
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Immediately after arriving home, about seven p. m., he being in tears, his mother and steрfather inquired of him what was wrong and he 'told them that Plopper molested him, saying he did not want to see him again> as long as he lived. He told them Hopper used his mouth on him. These utterances wеre clearly admissible as utterances of thought, springing from or created by the action itself. Borden v. State,
Nowhere in the record is there any evidence that-the Walker boy cоnsented 'to the act. It appears -he was completely bewildered and frightened by the' ^conduct of the defendant, a man 30 years of age and weighing 220 pounds, and' Walker -being a mеre youth of 14; It may also be noted that Hopper had never married.
Roy Sullivan, 15 years of age, the defendant’s nephew, testified that the defendant, Hopper, had boys of Roy’s agе, some of them' from the school where Hopper taught, come to his home, near Kellyville, and that some of them slept with Hopper in Hopper’s room. The defendant deniеd any boys ever slept with him at any time. It is difficult for us to believe his nephew would falsify about his uncle and the jury apparently were so impressed. The jury apparently believed the defendant, falsifying in this, could not be believed about the act complained of. Fear of being found out caused him to lie about this point when the truth would have been preferable.
This court has lоng recognized the analogy between sodomy and rape, Borden v. State, supra, and that the principles of law applicable to rape apply to sodomy. On the question of consent, in Cole v. State,
“ * *. * the question as to whether he consented should be submitted to the jury by proper instruction.” ... .
Herein, the - defendant denies the act of copulation the complainant asserts occurred. It thus became a simple question of fact, under proper instructions -given by the trial court. The issue was clearly 'drawn, the jury had to believe onе or the other. They resolved the conflict in favor of Walker’s testimony, which was positive and credible.- Under, the conditions herewith presented, the facts support the jury’s finding that Kenneth Wаlker was not an accomplice of the defendant, and such findings are binding on-the- Criminal Court of .Appeals. Sadler v. State, supra'.- • - •
The defendant asserts that he was limited in his examination оf the prosecuting witness, Walker, by the trial court in not permitting hiiii to inquire if-- he had! an ejaculation or emission. The court said' he'was not limited as to an erection, which was admitted by Walker, but оnly as to -an emission which was immaterial. We are - of the opinion the trial court' rightfully excluded such cross-examination for in 21 0-.S.1951 § 887 and the foregoing cases, it is held' that penetration, however slight, makes out a case. Cole v. State,
“Since in most jurisdictions the emission of seed is unnecessary to the consummation of the. crime, as discussed supra § 1 b (5), proof of emission is generally unnecessary.”
58 C.J., Sodomy,. § 15, p. 793; State v. Vicknair,
Further, the defendant complains of cross-examination relative to his being arrested. It appears that defense ■ counsel opened up the questiоn by asking defendant, “Have you ever been arrested?” The answer was a positive no. He likewise complains of cross-examination seeking to show distinction in his discharge :from the navy (сoncerning which evidence was offered in chief), was other than an honorable discharge, being a discharge under honorable conditions. Both of these issues were opened by the defendant’s own testimony on direct examination. It has been held, in this regard, that the opposing party may cross-examine on any fact brought out by the examination in chief. Miner v. Paulsоn,
Finally, the defendant contends that the penalty imposed is excessive. We feel that there is some merit to this contention in view of the fact that in similar cases1 ipvolving this statute, 21 O.S.1951 § 886, much smaller penalties have been imposеd. Moreover, there should be some degree of uniformity in. the sentences imposed. Hence, under the circumstances herein involved, we are of the opinion the sentence imposed should be modified to four years, and as modified, affirmed.