68 P. 808 | Or. | 1902
delivered the opinion.
The defendant ivas convicted of carnally knowing Effie Mc-Culloch, a female under the age of sixteen years, and, having been sentenced to imprisonment in the penitentiary, he appeals, assigning as error, inter alia, the action of the court in refusing to instruct the jury to return a verdict of not guilty, on the ground that no testimony had been offered tending to prove penetration. Testimony was introduced at the trial from which the jury might reasonably have found that Effie McCulloch, at the time of the alleged commission of the offense, was only fifteen and a half years old, though several witnesses testified that in their opinion she was about three years older. She had been an inmate of houses of ill fame for about two years prior thereto, and was the mother of two illegitimate children, the eldest being then about three years old. The defendant, having met her at Riddles, Oregon, went to Roseburg, and engaged a room having but one bed, saying to the landlady of the lodging house that his wife would be there with him a few days. That evening Effie McCulloch went with him to this room, which they kept five weeks, both occupying the same bed, and while 'living at this house she frequently introduced him to others as her husband, which statement he never denied. His wife learning these facts, caused him to be arrested for adultery, and at the preliminary examination he was held to answer the charge, and was committed to jail in default of bail. Effie McCulloch tried to procure sureties upon the bond for his appearance; but, having failed to secure his release, she committed suicide, and after her death the information was filed upon which he was convicted.
It is contended by his counsel that the testimony, hereinbefore detailed, may have disclosed an opportunity to commit the crime with which he was charged, but it was insufficient to prove the corpus delicti, and that the court erred in the par
Although the rule is general that in prosecutions for rape penetration should be proved beyond a reasonable doubt (Davis v. State, 43 Tex. 189), it has been held, on the trial for unlawfully knowing and abusing a female child, that the fact of penetration may be found by the jury from circumstances alone: Brauer v. State, 25 Wis. 413. The wisdom and justice of this conclusion is apparent; for a contrary rule might, in
The testimony having disclosed that the defendant and Effie McCulloch jointly occupied the same room for five weeks, the inference of his carnal knowledge of her was reasonably deducible from such circumstances, particularly so in view of her unsavory reputation. No error was committed in refusing to charge the jury as requested, and hence the judgment is affirmed. Affirmed.