166 P. 451 | Okla. Crim. App. | 1917
This is an appeal by the State of Oklahoma from an order of the district court of Rogers county sustaining a motion to set aside an information and discharging the defendant in error from prosecution. A motion to dismiss the appeal was filed by the defendant in error, and the cause now comes on to be heard upon this motion and upon the merits. The charging part of the information is as follows:
"William Bell, then and there being, did then and there willfully, unlawfully, and feloniously attempt to commit a crime, a felony, to wit, rape, in the following manner and form, to wit: That he, the said William Bell on or about the 10th day of August, A.D. 1914, in said county of Rogers, did then and there willfully, violently, unlawfully, and feloniously attempt to rape, ravish, and carnally know one May Wilson, a female under the age of 16 years, and not the wife of him, the said William Bell, by then and there taking hold of the said May Wilson and throwing her on her back upon the ground, and then and there pulling up her clothing and taking hold of her private parts, and he, the said William Bell, by means of the aforesaid acts, did then and there intend to have unlawful sexual intercourse with her, the said May Wilson, but he, the said William Bell, failed to commit the crime of rape upon the said May Wilson and was prevented from the commission and perpetration of said crime of rape by the resistance of her, the said May Wilson."
The motion to set the same aside is as follows:
"Comes now the defendant herein, William Bell, and moves the court to set aside and quash the information filed in this cause by county attorney of Rogers county, Okla., for the following reasons, to wit:
"First. That said information is filed in said cause and based upon the evidence taken at a preliminary hearing *666 before the justice of the peace and upon the order of the said justice of the peace at said preliminary hearing, holding this defendant to answer to said charge before this court.
"Second. That the evidence taken at said preliminary hearing was not sufficient upon which to base any information charging the defendant with the offense sought to be charged in the information in this case, and was wholly insufficient with which to further proceed to prosecute this defendant.
"Third. That there was no legal or competent evidence in said case, or taken at said preliminary hearing to support the information filed in this cause, and that said information is filed without any legal or competent evidence upon which to base same.
"Fourth. The defendant herewith refers to the evidence taken at said preliminary hearing and duly filed with the clerk of this court, and makes same a part of this motion, the same as if same was attached hereto as an exhibit.
"Wherefore said defendant prays the court to review the transcript of said evidence, and upon a review thereof to hold that same is insufficient to support said information and enter its orders in this cause setting aside and quashing said information and holding same for naught."
The testimony which is made a part of the motion is as follows:
"May Wilson, being first duly sworn, upon her oath testified as follows, to wit:
"Mrs. C.W. Wilson, being first duly sworn, upon her oath testified as follows, to wit: *669
The motion to dismiss is based upon the proposition that the appeal taken by the state is brought up by transcript, and not by case-made. The argument and authorities cited disclose the fact that counsel's contention is based upon the proposition that the motion to set aside the information and the exhibits which were made a part of the motion, by specific statements contained in the same, are not a part of the record included in the statutory definition, and therefore these matters cannot be reviewed on appeal by transcript certified by the clerk, but would have to be brought up by case-made, signed and certified by the trial judge, and duly authenticated as provided by law.
In this contention counsel are wholly in error. The motion to set aside the information is as much a part of the record proper as would be a demurrer or any other plea filed in this case. This court has never indicated the contrary in any of its opinions. The testimony included *671 in the transcript was properly so included because it was an essential part of the motion to set aside the information, and the transcript of the record would not have been complete without including it. This appeal is properly lodged on the transcript, and there is no ground for dismissal. The motion to dismiss, therefore, is overruled.
We will now dispose of the case upon its merits.
The motion lodged in the trial court to set aside the information, stripped of all technicalities, undertakes to assert that there was no proof at the examining trial sufficient to warrant the examining court in holding the defendant in error, Bell, to trial before the district court. Again we cannot agree with counsel.
This proof discloses the fact that the prosecuting witness, May Wilson, was a girl about 15 years of age; that she was induced by defendant, Bell, to meet him in a ravine near the outskirts of the town of Collinsville. It is clear from the proof that she was not his wife; also that she was under the age of consent. It is equally clear that the evidence shows he committed the offense as charged in the information.
Numerous opinions have been written by this court involving sexual crimes against female children, including those attempted as well as completed. The crime defendant is charged with is that of attempt to commit rape upon a child. If the testimony is to be believed, and for the purpose of the motion to set aside the information it must be taken as true, there having been no contradiction of the same offered, the defendant should have been tried and convicted. The trial court was in error in sustaining the motion to set aside the information. *672
It follows that the judgment of the district court of Rogers county setting aside the information should be reversed, and this cause remanded, with directions to overrule the motion to set aside the information and proceed with the trial of this cause.
It is so ordered.
DOYLE, P.J., and MATSON, J., concur.
