*1 415 filed information POWELL, Clyde Nichols Adward P. J. liquor, intoxicating county possession of Kay county with court' upon agree unable guilty jury, but the found before a tried amount for (counsel court, who thereafter punishment, left the same of the county from being present written notice after and the defense State county given Kay the records attorney) clerk the court evidence from heard convicted. been past the defendant for which offenses fourteen his office of county punishment months incarceration at six $500, defendant’s court fixed The the action. pay costs and all jail Kay a fine of The defendant the record. carefully briefs and exhaustive read haveWe overwhelming. given consideration We testify. The evidence did to defendant, error. reversible find no but points counsel raised all argument to attain In order of counsel. go into shall We expedient summary judgment indicated. This docket a current maintain 3, 5, 8, 2, Volumes cases. See misdemeanor past to in many years was resorted time memorandum Reports, time to 18, Criminal Oklahoma 16 opinions 1111; 51, State, 218 P. Okla. Cr. 25 v. Casteel See volumes. in later authority statutory 1134, 634, P. 1089. 125 State, 124 P. 7 Okla. Cr. v. Tucker was pro- Legislature and added reaffirmed enacted reading: O.S., Title 47 of See Section visions. felony opinion in all Appeals a written render shall Criminal “The Court decision, submitted been (6) shall have said cases after months within six cases points syllabus prepare opinion delivering Judge shall and law Supreme provided Court. for the therein, manner as in the same involved opinion copies filed made and (4) of each extra four shall no less than There applying One Dollar therefor disposed clerk, him disposed of for and each, Fifty ($1.50) be accounted fee shall and said Cents and as may, Provided, the Court the clerk: may all fees collected opinion subserved, like render written public judgment interest its manner however, Provided, ease in misdemeanor eases. questions form as to may or memorandum short form be in such the Court proper, without detailed with or deems as the Court involved law and facts may discretion, Court, deem sufficient facts, in its all as case.” in that judgment is affirmed. and sentence BRETT, JJ., concur. JONES et
KIDD al. STATE. Dec. 1953.
No. A-11776. Rehearing 1954. Jan. Denied (266 992.) 2d *2 McArthur, Tulsa, Kight, Jr., Ralph H. Tom Harold S. Brainard, B.
Claremore, plaintiffs error. Claremore, Bushyhead, Hickman, Tulsa, Dennis Hickman & of counsel. Q. Williamson, Atty. Gen., Watts, Atty. and Owen J. Mac Asst. Gen., for in error. defendant appeal by POWELL, an This involves case J. George Kidd and Rogers (Pat) county, in the district court of from a conviction where the rape degree. guilty jury in the first alleged of them of It found each in the * * * acting conjointly together that “while information did make an * * * violence force of means upon one Nadine assault overcoming * carnally know rape, resistance, ravish each penalty agree upon amount court, unable to of the reason Penitentiary. years State punishment defendaint at each fixed petition error assignments set out of error the eleven For reversal in this court. filed argued main heads brief two under that: stated It is first in- State defendants It is contention informa- rape degree of first a conviction to sustain
sufficient court this determined application State rule of the tion be reversed should clearly action reveals this ease evidence in to the with the same.” to dismiss to the trial directions heading counsel state: Under attorney opening “It is obvious prosecut- and actions conduct that the State close ing witness, outraged female Huckleberry, of an not that late return mother for taken to task -until mention did not evening question.”
from work on
§
statutory provision,
resisted
genuine,
good
active,
circumstances,
resistance was
in
and that
all the
under
tance
faith.”
State,
also,
mind,
rule stated
Gullatt
Okla. Cr.
kept
the
is
To be
reading:
defendants,
urged by
354,
353,
208,
cited
158 P. 2d
upon
may
the
be
it
the
for
sustained
“While
is
law
a conviction
equally
outraged female, yet,
settled
is
well
uncorroborated
the
it
evidence
upon
appellate
closely
testimony
the
which
court will
scrutinize
and,
obtained,
appears
it
too
conviction
if
incredible and
unsubstantial
judgment,
judgment.”
make it the
basis
will reverse the
promulgated
point
At this
be
was heretofore
should
noted that
September
rehearing
sought
2, 1953;
in this case
date of
under
may
granted,
principally
made
be
for the reason that reference was
quotations
to and certain
out from evidence
were
the court
set
jury.
stricken
the consideration
in one of their briefs
Counsel
rehearing state:
stripped
“We submit
the record
this ease
action
threats,
overcoming
proof
trial
resistance.”
of all
court
evidence
is devoid of
force
remaining
support
If the stricken evidence leaves the
evidence insufficient to
charge,
course,
appellants
sustained,
the contention of
would have to be
require
true,
by counsel,
a new trial.
itAnd
as contended
though
erroneously
stricken
even
in case
stricken
trial court
(which
admit),
appeal
counsel
do
cannot now be considered
this court on
determining
in
jury.
the issues
more than it could have been considered
by appellants,
principle
As
called
our attention
was involved in
States,
of Alford v.
case
United
F. 2d
decided
of
of
Circuit Court
Appeals
Circuit,
paragraph
for the Ninth
first
syllabus
stated:
case,
considered,
“In criminal
evidence which was stricken cannot be
even
clearly
though
admissible.”
also, People
See,
Trappers’ Corp.,
v. Canadian Fur
248 N.Y.
161 N.E.
quote
my and then he you Q. Now, supplied.) did consent to this (Emphasis mine, sir. *5 way A. I you resistance? No, Q. Now, what do did A. sir. resist? I was could do. begged, pleaded. much I just I didn’t know afraid and you? anybody kill Q. to supplied.) threaten going (Emphasis Did to kill me. object in- By that as to sir, We Yes, A. Mr. McArthur: Kidd did. A. J. it because be stricken it competent, and move and immaterial irrelevant Yes, be stricken and By alleged petition. will answer Court: not say? HeA. told Q. A. Kidd jury did What not to consider it. the me if McArthur: admonished By Mr. going bottle. up beer kill me with that he was to I didn’t shut reason. the same object stricken for that and ask that We to pleaded honor, Daugherty: By I Yes, that. By Your Mr. the Court: sustained. Daugherty: County Attorney. there, Mr. Well, By Mr. read the Court: forcibly, violently unlawfully, wrongfully, willfully, knowingly, (reading) Did * « * Daugherty right, feloniously By information]. [Mr. then read All on. the Court: and not, your No, By reading it does completed Mr. McArthur: jury Yes, By admonished not to it will be sustained Honor. Court: you jury Q. Daugherty) (By did to resist or what Mr. Tell it. consider to George (Pat) prevent keep intercourse with sexual to going just begged pleaded. Well, sir, you? I I was to I was afraid A. I and Honor, By Kight: get I Mr. Your ob- I much could do. killed. didn’t know voluntary ject she was afraid about where she said that as a to responsive. conclusion, get not and And killed. it calls she was to Yes, By certainly question. responsive the answer to the Court: It’s responsive. jury not to consider it. It’s admonished will be stricken and lay Well, you do, Q. want down and I didn’t to Pat else Nadine? A. What did By me, kept forcing lay (Emphasis supplied.) pushed Mr. me to McArthur: down. Daugherty: what he as a Mr. Tell did? ask that be conclusion. We stricken Exception. Q. Daugherty) (Mr. By Well, Mr. the Court: overruled. McArthur: finally you private parts or not when Pat Goff inserted his into I will ask your private parts, whether you? very Yes, sir, A. It was whether or not it hurt it did. up. Kight: object him, By painful We and he told me to shut Mr. question voluntary to statements witness. She answers the then Yes, necessary up. By follows be conducted she Court: this that this you question question just anticipate and answer basis and answer and don’t object question right you next have a it and because shouldn’t any voluntary make answer it until the rules and don’t statements. Court Just counsel, question way that’s the answer it should conducted. question, Reporter. The answer will be stricken Mr. —read reporter.) Q. Daugherty) (Question (Mr. yes read Just answer or no. sir, Q. Yes, Yes, Q. Now, A. was. You mean it A. after did? sir. pain you, you say? begun what did do or A. told Pat Goff it hurt he lay Q. long you say, your judgment, me to How told from the accomplished? still. you fully time seat of the back car until this act was really say, Q. A. I can’t sir. After Pat Goff thing happened? act, Well, got then what the next A. out of the ear back, up and A. J. in and and went around Kidd come I had sat and he told lay gonna down, me to that he wasn’t hurt me and he told me tell Pat Goff, as I Q. you object had a sexual intercourse too. Did him? A. As well could, (Emphasis supplied.) sir.” testimony witness A. further showed that J. Kidd was not driven to first, home, arriving home but the defendants drove Nadine his about 1:20 a.m. door, awakening step-father, her home the back after entered who sleeping underclothing in that clean room. She from a chest drawers and kitchen, panties, hung dry went to the line in the back washed them out to on the clothes yard, entered from the kitchen. She then came back sleeping bed, her room her sister and her mother were in her and she folding bed, began open up coming her mother awoke and her about asked happened late she then told her mother what to her. Her mother and immediately stepfather neighbor’s ’phoned police went to a house and head- quarters statement, out officers came and heard two and then took her station, police where Dr. examined Beddoe. Witness swore intercourse had before. that she never it was state moved to a distant the trial Dr. Beddoe had At the time of hearing given preliminary read agreed his follows: He testified as evidence. you Q. live? your do “Q. Where A. Harold Beddoe. name. Doctor State Physician profession? your position Q. A. Tulsa, isWhat A. Oklahoma. Q. regular city department licensed police are a of Tulsa. You for and cations) qualifi- Yes, (By practicing physician? admit sir. Mr. McArthur: We morning Q. Doctor, of the third or on the occasion Huckleberry? Yes, sir, I did. What was visit Nadine of the fourth to my police department to examine this I was called to office that? A. purpose? August. girl vaginal whether or not A. To determine 4th of A. For what on the *6 Yes, sir, Q. you penetration I make the examination? A. had occurred. Did edges hymen oozed and from the the blood still was torn on either side did. sper- vagina Microscopic examination showed a smear was made. and from your Q. your examination, opinion as to the cause From what is matozoa. vagina presumably Accomplished penetration A. and intercourse this condition? Yes, recently? Q. A. sir. that had occurred had Formed occurred. Q. period been a few hours time? A. Best I could state it What examination, certainly prior six hours. I not more than to the time made status, girl’s your opinion Q. examination to this from this What would My opinion virgin girl previous A. a to the time occurred? whether was n would say evening. Q. penetration You be that had not occurred before that hymen Yes, your opinion in that had been caused force? A. from force on Q. accomplishing penetration. in From in Force must be used sexual intercourse. No, sir, your ordinary more in A. examination was not force used than eases? Q. Q. say. No, sir, I found. Not I couldn’t No marks of force? A. not that distressed, yes. any way? Well, say A. I would somewhat distressed was you speak Q. were what A. hysterical? Q. A. tears She wasn’t She was concerned. These Q. length? Approximately tears? A. one-fourth of inch. Small Well, hymen approximately a fourth of varies different individuals (cid:127) three-eighths average Q. or an inch width on either side. What average ordinary organ you say size such would in such circumstances Q. ordinarily Ordinarily two, Was married woman? A. more than two used. girl hysterical? No, Q. Well, I wouldn’t sir. don’t know. Under mental distress? A. give my opinion that, Q. on I her on the wit- You didn’t observe No, sir.” ness stand? point prosecution witness for defendants out statements made Counsel trial, hearing preliminary with statements made at on asserted to at variance permitted jury, which the court to be read to the as follows: McArthur) (Cross-examination Mr. : Q. get being “Q. A. Yes. on so late? afraid she would You were * * * your Q. fact, why you if As a matter her? A. Yes. told
That mother hadn’t That is neighbor? you? it, you A. I anybody up, about have told woke wouldn’t neighbor. Q. your going up my correct, Tell and tell isn’t it? morning Q. was, I A. I was to wait until A. Yes sir.' When? up.” her, her I didn’t want to wake tell because Tulsa, preliminary hearing both at the first had testified Dr. Beddoe county. By trial, hearing Rogers reason of his absence at at the testimony given state, defense, agreement permitted read showing hearing purpose preliminary dif- for the first at the covering vaginal given preliminary examina- the first at ference. The state, anything stronger but while he stated at second was if tion hysterical girl when he examined preliminary Nadine was that whereas the intercourse, that she was “concerned”. hours after the or three some two thought way: expressed previously He had any? attitude, attitude, physical girl’s if “Q. mental was the What unduly hysterical any way hysterical. not in She seemed A. She upset Q. hysterical No.” all? A. at upset her. She was not I examined prosecutrix a.m. on the that at about 1:25 testified mother standing daughter August 4, 1951, [morning] Nadine she was awakened girl very upset”. stated that “she was her bed and foot of them, men, naming raped by and her and that she two her about police, away neighbor and called about block the next door went to husband police they gave head- went to them her statement after Nadine Beddoe, police physician. quarters Dr. was examined Nadine where policewoman, Johnson, conversation testified Tulsa Mrs. Beulah against charges being arrest, prior filed after their with the defendants them; concerning Huckleberry questioned previously that she had defendants; raped charges that she advised de- she had been they to; give any statement, they if did not want not have to fendants that lawyer; represented talked with that she first entitled to be and were and he advised lawyer. already retained a Witness further he had her that testified: did, I he said he knew Nadine him if he “A. I asked years. long I also asked her and he said several he had known him how asked boy by Tuesday night name of Donnie Shaw of that week he and if on him replied her home and he work and had taken met her when she off had Friday night, yes. and he said if he had met her on I asked him he did. Then time, I him he said about 11:30. asked who him about what asked him, Kidd, in A. car. I asked him if A. J. J. Kidd’s said yes, night, what time arrived taken home that and he said happened home, o’clock, home, him what time after 1 asked and he said some refused, he and he said he didn’t 'between 11:30 and this time arrived it, questions hap- about what want to talk about pened want to answer didn’t *7 he further between the time met her and took her home. Were n statementsmade your presence?? him in A. That’s about all.” August 6, day, she Witness further stated that on the same which was ' Kidd, following questioned A. and stated that he made the statement: investigating the “A. He said he didn’t blame the officers for ease but that why jail, anything he have he didn’t see he was didn’t to do with it. asked her, him if he knew he did know he and said wouldn’t present time, know her if she walked the door at that never her. I heard of Friday night, preceding Friday asked him if he was out with Pat Goff on or the night, ‘no’, bed, and he said that he was at home in that he had loaned his car Smith, bed, a man to the name Leon and that he was at home in that he night. Q. didn’t even drive his car that he make Did other statements to you? wanted to see Yes, lawyer, A. he said he taken Pat had Goff down see that he good lawyer, and the had taken him Mr. down to McArthur’s Saturday morning lawyer. Q. Any house on and told him he wanted other Yes, they? statements he made? A. sir. What were A. Mr. McArthur lay Monday morning they spend told them to low until wouldn’t jail. Q. the whole week-end in Now were there other statements? That’s about all.” Ray nothing except Officers and Leavell testified but their added Leavell, Rogers county. that of which fixed the scene offense as in Applying provisions applicable statute, Thus the evidence ended. 1951, 1114, quoted, to, § § prin- Tit. 21 .OS. heretofore and 1111 referred ciples previous of law heretofore set out from cases similar to this one that considering, support we are now sufficient evidence to verdict jury, judgment and the entered? question, There is young girl no bnt this was the victim of sexual penetration, but defendants contend that the evidence was insufficient to show proven acts were not done with the prosecutrix, consent in that body she had no her, bruises and admitted that the defendants did not strike scream, reason of her failure to and failure to rush into her home hysterical outcry, in a and that resistance, she offered doubtful which in the great absence of bodily harm, threats immediate accompanied by ap- parent power execution, prevented such resistance. The evidence is virgin uncontradicted but that she was a August, 1951, acquaintance, George when her (Pat) trusted Goff, awaited this year girl completed old as she scrubbing menial cleaning duties of building, emerged office into the transportation rain and was offered home, required and the circumstances that her to ride with the older de- fendant, strictly chargeable Goff, Kidd were every act thereafter process taking her home was defendants, say conceived and she had no accepting rejecting. important These bearing facts have a most in evalu- ating spot. finally incidents by trickery secluded And reached spot, Goff, the secluded and friend, wooded her trusted announced to her in language blunt were, what his jumped intentions and she out of the car in panic get away and did the best she virtue, and save her about the under-priviliged girl asset this possessed. was shown to have Is it not just stated, reasonable that away? jumped she as she out of the ear to run grabbed But “begged defendant pleaded”, said, you get “If going don’t back ground in there I’m to throw on the ground.” take it on the This left intentions, no doubt his rampant. said, pushed force used. Lust was jerked She “He me down and my half-slip.” said, off “I was afraid were to kill me.” It will quoted testimony objection noted from interposed that no to this prosecutrix, though the action one of the defendants indicated kill how would her was stricken and cannot be considered for the reasons said, pushed kept forcing lay stated. She “Pat me and me to down.” Also Kidd standing at this time was interpret outside the car. Yet the defense would all acquiescence. They this as inexperienced ¡ would girl have us believe that though was as calloused a harlot experience, this was her first inter- posed party looking doubtful thought resistance even awith third on. Such repugnant purpose, got to nature. Goff his and then out of the car and Kidd took turn. But it is contended this did not show sufficient re- They girl have the sistance. “resist to the utmost” which would amount to resisting to the death when attacked or more lustful males bent on satisfying appetites vicious where the circumstances also too indicative of prior planning purpose. By up accomplishing built that had them extreme in their whipped time J. Kidd took over this victim was down and get stepped away she could out of demoralized. Before the car Goff and Kidd objected Kidd, girl in. if she When asked to A. J. stated: “As well as could, questioned just sir.” She was not on cross-examination as to what she did, and meant this statement. No evidence was introduced to show that just implies did not do what she that her resistance was over- by superior accept meaning just come force. So that must her statement as *8 import imply, what words circumstances absence question here the in contradiction. Eor sufficient is whether or not the evidence was problem to withstand the There demurrer. is not involved the weighing where there would be contradiction. This court would weigh the not evidence. girl hysterical It is further claimed that was not because when she go be home defendants should told in reached that effect to hence and sin weight there give the fact asked to in effect areWe no more. is no evidence part the victim other conduct of enticement ravishers. of her the conduct contributed have could girl a tender at forced Here was varies. of different The nature individuals average compared hovel, living when in a live age her own to make stoical, mother said but apparently less more or standards. standing by girl her bed “and Nadine was awakened when she later, couple hours or Beddoe, her a upset.” very who examined Dr. much hysterical. but she was “concerned” said in the to have screamed the victim good for it have done What to scream in fear that spot occurred? She the acts where secluded cause good almost the fact reason life. She her to forfeit resisting while their deaths the recited met daily of females who the number account and ac- conduct Prom was useless. resistance when to the utmost tions of spot, nighttime together in a secluded defendants, acting telling she was girl, but that helpless doubt opposing one they kill me”? Did were afraid “I was she said: the truth when reasonably Having entire cir- from the good to so reason conclude? not cumstances arrived this feiture recited, already conclusion, the authorities under at such virginity, the for- required addition girl risk in to thereafter was not overcoming offered this Her the resistance used in life. The force of her rape. ease, to constitute virgin girl, was sufficient in this the facts under was admitted summarizing the time it at as she viewed the situation statement without vert and when may than an extro- introvert rather objection. be an The fact that they stand they hour seems their blackest all and lose their lungs, capacity screaming of their silence, than rather and stunned dumb proper deprive acute, cir- suffering them under and can no less their makes hysterical in re- who becomes the female than no less credence cumstances of among counting characteristic This is common the facts of ravishment. everything brought infancy about persons of life have where the vicissitudes hopefulness for a sound foundation existence and a normal cheerfulness and but may quite day. different from brighter often- emotional reactions Their more favorable. have been circumstances whose those environment police- given voluntarily defendants and made The statements other, Kidd did drive admit that he and Goff did each woman contradicted happened question, when to tell what but he refused home the taking country. time she stated. her home He admitted were in the having policewoman course, questioned ever denied seen Kidd Of accompanied her home. entire Goff to her and ever Nadine or evidence are therefrom, reasonably circumstances, dedueible the inferences and testimony Huckleberry, support of Nadine all corroborative guilty of the crime were the defendants conclusion reached which penalty charged? maximum one where the is crime Penitentiary. death, penalty fifteen State minimum stated, applied to the facts authorities cited that under the We conclude overruling to the evidence of the defendants err in the demurrer the court did not of state. admissibility quoted Considering to have been evidence shown now stated, other, appears already stricken, purpose record and no theory the information did that because con- have been the of the court allegation of immediate and threats that the tain was. preventing power by apparent great bodily harm, accompained of execution resist- great bodily ance, harm were inadmissible. Even that all evidence threats
425
though
respect mentioned,
all statements
the
the
information was defective
victim at the
the
of fear
the
and threats and actions conducive to
creation
State,
gestae.
rape
part
1
the
v.
were
as
of the res
See Price
scene
admissible
358,
447, 452;
Okla. Cr.
98 P.
where it is stated:
grow
gestae
circumstances, facts,
out
“Res
means the
and declarations
fact,
contemporaneous
it,
its
main
char-
of the
with
and serve to illustrate
acter.”
State,
123,
826;
State, 79
see
287 P.
Frazee v.
And
Chastain v.
46 Okla. Cr.
224,
637;
State,
110,
P.
P.
Okla. Cr.
153
2d
Hathcox v.
94 Okla. Cr.
230
2d 927.
Eurther,
girl
the
the
at the time the
when
testified that
defendant A. J. Kidd
rape
up
trying to
her: “He
me if I
he was
defendant Goff was
going
county attorney
didn’t shut
bottle”,
jury
to
me with
beer
was
and the
kill
that
and then
excused
information,
justice
read
in the interest of
should
court
attorney
permitted
suggested
county
to
that
have
information
proof.
question,
amended
to
the statute in
instanter
conform
Under
State,
396,
permissible in
v.
64 Okla.
81
one count. See
Cr.
P. 2d 493.
argument
finally
closing
of the
The
contend that
defendants
attorney
inflammatory
unduly
prejudicial
influenced
verdict
record,
jury.
argument
county attorney appears in the
of the
The entire
of the
argu-
object
to
we note that
for the
did not
but
counsel
defendants
except
point
county attorney attempted to illustrate a
ment
that when the
jurors
by referring
more
name. The
sustained defendants’
to
court
county attorney
objection
that,
to
not so illustrate
that he could
advised
objection
argument.
interposed.
discloses no further
record
argument
county attorney
of a
ob-
This
has
that not
does the
court
held
case-made,
jected
por-
improper
improper
that
to
to
in the
at the
have
be reflected
trial,
objected
exception
to
to
saved
tion deemed
an
must
318,
Quitman
981;
ruling.
State,
Cooper
P. 2d
v.
adverse
v.
61 Okla. Cr.
67
State,
State,
441;
Harris Okla. Cr. * * strong many However, “This is not as jury case as we have reviewed *. witnesses, heard saw their demeanor on the witness stand and disputed questions against fact have held the accused.” similarity. Harris ease and the case at bar bear marked In the Harris “many people got way they the defendant case killed that didn’t give supposed testified, objection, in when to.” Here the victim without “I was afraid that kill me”. In this case the defendants elected testify behalf, case, their own and as was said in the Harris “the stating says female the occurrence that she did not consent and did resist until resistance became so useless as to warrant its cessation”. As was said therein, accepted “can Court after the her version of the trans- approved say verdict, action and the trial court has as a matter of law that competent jury.” there was no evidence to sustain the verdict of the Therein *10 Particularly applicable “We think not.” is this conclusion herein where dispute defendants did not take the stand in their own behalf and the vic- testimony. Moreover, greatly tim’s fact fact alone the element of fear was enhanced to the due just there were two men in involved this situation and not one. This supplies force, by an element of numbers. there Hence was both force and fear. dissenting opinion charged The sets out the defendants should been separate separately, in by informations and tried as each act of sexual intercourse technically correct, these two individuals were distinct offenses. This is a matter court, the defendants did not raise in the lower and have any stage proceedings, in asserting raised of the and are not here. Of course, raise, ais matter that alone could and their failure so to do complete amounts to a full motives, impelling In waiver. view of these and other opinion I Presiding Judge. therefore concur in the of the JONES, (dissenting). Having original opinion in concurred which was September 2, 1953, dissenting rendered on opinion, and now to the revised I briefly original feel that I opinion should state the reasons for such dissent. The affirming largely upon the sentence was based evidence which had been stricken petition rehearing, court. Our attention was called to this in the as pointed by Judge out in the hereinabove set forth Powell. I concur majority opinion conformity in to the decisions therein cited that the evidence jury may which was stricken from the consideration of the not be considered appellate determining sufficiency in court of the evidence to sustain conviction, though appellate even the members of the court feel that erroneously striking the court acted such evidence from the consideration of jury. the submission The court struck from the consideration of the the evidence of through engendered by because, fear charged threats such was not the information. appear With elimination of the stricken there does not any substantial, competent prosecuting evidence to show that the witness resisted and that her resistance was overcome force and violence. against The state relied for a conviction separate both Goff and Kidd on intercourse, prosecutrix. acts sexual each had with the These defendants should separate separately have been informations and tried as each act of sexual intercourse committed these two individuals were distinct offenses. upheld, Before a conviction beyond can the state’s evidence must establish prosecutrix resisted, reasonable doubt that but her resistance was over- come force and violence as defined under the fourth subdivision § statute. 21 1951 1111. O.S.
427 majority principle of resistance I in the statement concur in the latest decisions and is not followed the uttermost is obsolete However, equally the decisions of well settled court. good a mere resistance or faith and not real resistance there must be some sham, persist That is consummated. until the offense such resistance should enough; objection by must be the resistance mere words is resistance or strength opportunities reasonably acts, proportionate to the and must be resistance, to use is small occasion If there is a lack of there of the woman. State, 353; State, v. 52 Cr. 158 P. 2d Johnson Gullatt v. 80 Okla. force. 772; Epley State, 2d 711. P. 2d Okla. Cr. Okla. Cr. summary established, present principles I of the Goff and the here these of law With first, George against accused; as to Goff. each acquainted prosecuting been for three or more and had dated. witness had age. prosecutrix physically They strong, approximate was a of the same janitress. young woman, being employed prosecutrix able-bodied car, jerked pushed seat of the her half- testified that Goff slip, her into the back off removing panties. In re- and had sexual with her without intercourse sir, resist, was, “Well, sponse question her answer what just begged pleaded. I I do.” didn’t know much painful to her and that she told Goff that She testified that act was lay painful in her was does was there not resistance to the and “Pat” Goff told her “to still”. At no time Not she make act that she did to show resistance. uttermost, just resistance. thing pertaining record, As I view the her act with Goff was that the most favorable that can said participant. reluctant present away to Kidd. was not but was Next the evidence as Kidd consider during allegedly somewhere all of the acts committed Goff. the darkness testimony concerning complete is set Kidd’s force and resistance forth Her following questions and answers: *11 act, thing “Q. then what was the next this After Pat happened? Well, got of went around the out the car and back and A. J. lay down, gonna up, I me to that he wasn't in and had sat and told Kidd come Goff, me and he me not to tell Pat had a sexual too. hurt intercourse Q. object could, I to him? A. As well as sir.” Did says lay down, the act? She that he told her to Did Kidd force to commit that he was not to hurt her. Such statement sounds to me more like an attempt persuasion accomplish violence, use the act than the use of force and alleges part of which the state was used. Not act resistance is re- Kidd, concerned, the is lated as to lutely and so far as lack defendant Kidd there is abso- complete a of substantial evidence to him. convict majority opinion giving appears the is still effect to the It to me that evidence alleged by engendered by which evidence was stricken fear threats the of court. opinion giving Although majority that are not state their the consideration opinion apparently again affecting forth in the it is set is to such proof fact that of affirmance of their The stricken evidence decision. state virgin prosecutrix judg- basis for the a is the shows the was virgin violated, regrettable ap- do not that a condone ment. It is nor defendants, prove the statute but under decisions of the acts of the instituted, contemplated prosecution is under that court an adult even virgin resistance before a some active conviction must show should be virgin solely opportunity may person pre- because no be a ever sustained. A sented to be otherwise. virgin differ- there is no statute a Under the But must resist assault. virgin penalty or with with a intercourse sexual ence prostitute, of the use act is consummated is where there resistance virginity important to be con- and a factor of is and violence. fact force sidered, assault, coupled alleged time of the her actions at the but where repudiates opportunity, of outcry idea an at the first her failure to make violence, overcoming of force the use of resistance or resistance guilt determining virginity significance or inno- much of its then cence loses of the one the assault. accused repeatedly the natural of this court that is decisions It has stated been outrage complaint every an at the first impulse make of of virtuous female strong against presumption opportunity is a there and where this is done State, supra. prosecutrix Not did the of the accusation. Gullatt truth home, outcry opportunity but she she arrived an at the first after to make fail testified mother had what had occurred if her not have told her mother that she would so In this connec- her for out late. and scolded awakened up prosecutrix of her front that the defendants drove testified tion making outcry of out of the car with her. Instead home and Pat Goff attracting prosecutrix attention. enter without door so went to back attack, alleged prosecutrix Beddoe, who Dr. examined girl’s appearance preliminary concerning the when examination at the testified he examined alleged attack, her, approximately hours after the as follows: two any? attitude, attitude, girl’s physical “Q. if mental was the What unduly hysterical upset any way hysterical. She was not in seemed She upset hysterical all? A. No.’’ her. was not examined n rape Keeping prosecution for is a use of force and in mind woman, overcoming attention resistance of is directed of the fact violence that the accused cases on this ages prosecutrix great disproportion in there was no or sizes great far as shown record. We have had number appealed testified, to this court in which learned doctors have and based authority, unquestioned seems to be that a female not abundance interpose wishing raped equipped most effective obstacles means pelvic Most medical writers these hands and limbs and muscles. state practically insuperable in the of more than the obstacles relative absence usual strength disproportion age man between and woman. Summarizing, overcoming lack of force resistance. prosecutrix beg plead All did was and on the one occasion when she boy-friend lay complained pain act, Goff told her to because still she still laid. disposition proper I am the this case calls for it to attorney be reversed and remanded for a new trial with instructions to the by alleging prosecutrix prevented to amend the information great bodily accompanied ap- resistance threats immediate and harm parent power of execution.