Opinion
Argued at Pendleton May 3, 1927
Affirmed July 12, 1927
From Wallowa: J.W. KNOWLES, Judge.
For appellant there was a brief and oral argument by Mr. Daniel Boyd.
For respondent there was a brief and oral argument by Mr. Sylvester H. Burleigh, District Attorney.
In Banc.
This is a criminal action upon an indictment charging the defendant with the crime of rape upon one Vivian Dodson, a female child under the age of 16 years; said crime having been committed in Wallowa County in November, 1926. Testimony was also admitted of another act of sexual intercourse between the parties at a date subsequent to the one charged in the indictment. The defendant is a married man of the age of about 32 years. The state offered in evidence, among other things, the testimony of Vivian Dodson, the girl alleged to have been the victim in this case, who testified that she was fifteen years of age on the seventeenth day of February, 1926, and that on the seventh day of December, 1926, on the highway leading from Wallowa to Elgin, between 7 and 9 o'clock in the evening, the defendant had intercourse with her. The material parts of this testimony are as follows:
"A. He had sexual intercourse; it was very long, — the time wasn't very long.
"Q. What position did he get into, if you know? A. Position?
"Q. Yes. What position did the defendant get into at that time, while you were down in the seat? A. I don't know.
"Q. Just what was done, Vivian? You say you had sexual intercourse with the defendant there? A. Well, I laid down in the car, and then he laid down — well, we had sexual intercourse; that is all I could tell you.
"Q. Just relate what happened will you, Vivian, so the jury can know what happened there? A. Well, he put his organ in mine, or at least tried to, I guess. I don't know how far he got.
"Q. And how long was this going on in that position? A. Not more than five minutes at the most.
"Q. Are you able to state to what extent he inserted his organ into you? A. No.
"Q. State whether or not he inserted his organ into you at all? A. Yes, he did.
"Q. Was there anything said there, Vivian? A. No."
As to the second act, the particulars which were introduced show the lascivious disposition of the defendant. Vivian Dodson testified, among other things, as follows:
"A. Well, we had sexual intercourse just the same as the other only, —
"Q. Go ahead and state what was done there? A. At this time, — or afterwards, he asked me if that was all the further he could go, or something like that, and I said, I guess so.
"Q. When did he ask you if that was all the further he could go? A. After we got through, this was.
"Q. And what are the facts about his taking down your bloomers there? A. He pulled them down.
"Q. And what did you do then? A. I just laid there.
"Q. What did the defendant do? A. Well, he laid down.
"Q. What is that? I didn't hear the answer, Vivian. A. He laid down.
"Q. Where did he lay down? A. On me.
"Q. And did he say anything while he was in that position? A. No.
"Q. When was it that he asked you if that was all the further he could go? A. After he got up.
"Q. What did he do while he was lying down there on you? A. He put his organ into mine.
"Q. And when he asked if that was all the further he could go, what did you say? A. I guess so."
The witness also testified that he gave her his handkerchief and told her to wipe herself off, which she did. She further testified, among other things, as follows:
"Q. And did you have your bloomers on then? (Referring to the first occasion.) A. Yes.
"Q. And he took them down as far as your knees? A. No.
"Q. He didn't take them down that far? A. No, he didn't take them down at that time at all.
"Q. He didn't take them down at that time at all? A. No, — just used the leg of it.
"Q. How is that? A. I don't know how, — through the leg of it some way.
"Q. Just pulled one side down? A. Yes, I don't know how he did it; he had one leg of it some place.
"Q. Both your legs were inside the bloomers at that time? A. Yes.
"Q. And one side of your leg was more exposed than the other at that time? A. Yes.
"Q. He didn't pull your bloomers down to your knees at that time as he did the second time? A. No."
The parents of Vivian Dodson were called as witnesses and both testified, positively, that she was born on the seventeenth day of February, 1911; that owing to the fact that they were living at a distance from where a physician could be obtained, no physician was present at her birth and therefore no certificate of her birth was ever issued. They further testified that Morris was the oldest child and another daughter, Nova, was older than Vivian, being about 17 years old. The state introduced certificates of birth of these two with a view of fixing approximately the age of Vivian, to the admission of which certificates the defendant's counsel objected reserving an exception; and the admission of these certificates is assigned as error on this appeal.
Mrs. W.B. Dodson testified that Vivian had never been married to anybody and that she was not the wife of the defendant. Vivian herself testified that she had been acquainted with the defendant before coming to Wallowa and that she was also acquainted with Mrs. Wisdom. The father testified, in substance, that on one occasion he asked the defendant what he meant, being a married man, by taking these girls out the way he did. Told him somebody would know he was a married man, that the girls were strangers there, and that such conduct would tend to blacken their character.
Physicians, who examined Vivian, testified that her genital parts were uninjured and that there was no rupture of the hymen.
The errors alleged on appeal are, first, that the state failed to prove by any competent testimony that Vivian Dodson was under the age of 16 years; second, that the state had not proved by competent testimony that she was not the wife of the defendant; third, there was no competent testimony to show any penetration of the body of Vivian Dodson, the witness; and fourth, that the court erred in giving the following instructions:
"Gentlemen of the jury, I instruct you that the defendant, John Wisdom, is charged with rape. I charge you that rape, as charged in this indictment, is sexual intercourse committed by a male person over the age of eighteen years, with a female person under the age of sixteen years, and not the wife of such male person. The crime of rape, as charged in this indictment, does not include the element of force on the part of such male person; nor does it include the element of consent on the part of the female person. A female child in this state is deemed incapable of giving consent to the sexual act, and a female under the age of sixteen years in this state is not required to resist the performance of the sexual act with her. Therefore, if you find from the evidence in this case beyond a reasonable doubt, that the defendant in this county and state at the time named in the indictment had sexual intercourse with Vivian Dodson, and that the said Vivian Dodson was then under the age of sixteen years, and not the wife of the defendant, and that the defendant was a male person, over the age of eighteen years, you should find the defendant guilty as charged, whether you find that the defendant used force or not, and whether you find the Vivian Dodson consented or not, as those elements are not included in the charge as laid in this indictment."
"I instruct you, gentlemen of the jury, that to constitute the crime of rape, as charged in this indictment, the state must show some penetration of the male organ within the female organ of the prosecuting witness Vivian Dodson. However, I instruct you that the slightest penetration is sufficient. It is not necessary that the hymen be ruptured, or that penetration be effected to any point beyond the hymen. Entrance of the male organ within the labia is sufficient to constitute sexual intercourse, and if there is such penetration, emission is unnecessary. Therefore, if you find from the evidence in this case beyond a reasonable doubt, that the defendant in this county and state at the time named in the indictment, was a male person over the age of eighteen years, and had sexual intercourse with one Vivian Dodson, who was then under the age of sixteen years, and not the wife of the defendant, you should find the defendant guilty as charged, if you find that penetration resulted to the slightest extent, as only the slightest penetration is necessary and entrance within the labia of the female organ is sufficient."
It is alleged that the court also erred in failing to give the following requested instructions:
"The undisputed testimony of Drs. Gregory and Hockett is to the fact that the hymen of the female organ of the prosecutrix was intact, not broken; that her sexual organ was normal for a girl of her age, and that considering the condition of the female organ at the time the prosecutrix was examined by Drs. Gregory and Hockett, on November 24, 1926, you cannot find from the testimony in this case, that the male organ of the defendant entered the female organ of the prosecutrix beyond the hymen, if it entered the female organ of the prosecutrix at all, and if you should find that the state has failed to prove to your satisfaction beyond a reasonable doubt by competent and sufficient testimony that there was penetration of the female organ of the prosecutrix by the male organ of the defendant on or about the time named in the indictment, it is your duty to acquit the defendant and your verdict should be not guilty."
"The crime charged in this indictment is rape; it is not attempt to commit rape. These two are distinct crimes, and even though you believe from the testimony in this case, that the defendant did on or about the time named in the indictment, attempt to have carnal knowledge of the prosecutrix, that is to say, sexual intercourse with the prosecutrix on or about November 7, 1926, and you entertain a reasonable doubt as I shall hereafter define it, as to whether or not the male organ of the defendant actually penetrated into the body of the prosecutrix, then it is your duty to acquit the defendant and your verdict should be not guilty."
"In this connection I desire to instruct you, gentlemen of the jury, that if you believe beyond a reasonable doubt, from the testimony in this case, that at the fountain in the canyon, in Wallowa County, Oregon, on or about the seventh day of November, 1926, that the prosecutrix reclined on her back on the seat of the Ford roadster, with her head on the arm of the seat, with her bloomers pulled down above her knees, but not below her knees, her right leg on the seat, her left foot on the floor of the car; that the defendant reclined upon her with his feet outside of the car, and that the defendant's male organ touched the body of the prosecutrix, that this is not enough, if under these conditions the state has failed to establish beyond a reasonable doubt that the male organ of the defendant actually penetrated the female organ of the prosecutrix, you must acquit the defendant; that is, even though you find from the testimony in this case, beyond a reasonable doubt, that there was an attempt upon the part of the defendant to actually penetrate with his male organ the female organ of the prosecutrix, and you entertain a reasonable doubt as to whether the male organ actually penetrated the body of the prosecutrix, it is your duty to acquit the defendant, and your verdict must be not guilty."
"In determining the questions as to whether or not the things happened at the fountain in the canyon in Wallowa County, Oregon, on or about the time named in the indictment, as testified to by prosecutrix, you have a right to take into consideration the probability of the defendant attempting to commit the crime, if you find beyond a reasonable doubt that he did attempt to commit the crime in the manner testified to by the prosecutrix; that is to say, the public drinking fountain, the day of the week, the time of the night, the nearness to the public highway, where cars were likely to be passing, and likely to be stopping, the character of the car, the posture of the prosecutrix and of the defendant, and after you have weighed all of the testimony in the light of all of the circumstances and conditions, you entertain a reasonable doubt as to whether the male organ of the defendant actually penetrated into the body of the prosecutrix, it is your duty to acquit the defendant and your verdict should be not guilty."
"I instruct you, gentlemen of the jury, that you cannot convict the defendant unless you find from the testimony in this case beyond a reasonable doubt that the male organ actually penetrated the body of the prosecutrix, Vivian Dodson, and in determining this question, you must find beyond a reasonable doubt that the male organ at least penetrated into and by the labia of the female organ having mucous membrane, and unless you so find from the testimony in this case beyond a reasonable doubt, your verdict must be not guilty."
The jury found the defendant guilty as charged, and, from a judgment upon that verdict, he appeals to this court. AFFIRMED.
We are not authorized to inquire into the comparative weight of the evidence for or against the defendant, but merely to pass upon the question as to whether there was any competent and substantial evidence upon every fact necessary to constitute the crime. As to the first objection urged, failure to prove the age of Vivian Dodson, the evidence is clear and overwhelming that she was under 16 years of age. Her father, her mother and her sister all testified to this fact, and the certificate of birth, while it would have been admissible, was not legally required. The second objection, that the state failed to prove that she was not the wife of defendant is negatived by the testimony of her mother who testified that she had never been married to anybody, and there is abundant circumstantial evidence to the same effect. The third objection, that there is no proof of any penetration of the body of Vivian Dodson by the defendant is not tenable as shown by her testimony in which she says positively that he had sexual intercourse with her, and she repeated it time and time again that he inserted his sexual organ into her both times. She seemed to be a fairly intelligent witness, in her second year of high school and perhaps, unfortunately for her, more mature than she should be for her age.
It is not necessary to go over all the disgusting particulars; but the testimony of the prosecutrix, which the jury had a perfect right to believe, was sufficient to take the case to the jury and to convince them that the sexual act had been completed as far as the law requires to constitute statutory rape.
The first objection to the instruction designated in the objection No. 2 is not tenable. The words "a female child in this state is deemed incapable of giving consent to the sexual act," if they stood by themselves might be misleading to the jury, but the court gave a practical definition of what is meant by a female child by saying to the jury that, if Vivian Dodson was under the age of sixteen and not the wife of the defendant, and if defendant was a male person over the age of eighteen, the other elements of the crime being present and incorporated in the instruction, the defendant might be found guilty whether Vivian Dodson consented or not, and, considered as a whole, the instruction was absolutely correct.
The second objection, which is designated instruction No. 3 in the objection to it, is absolutely correct and is the law at the present time in most of the states of the Union. We lay it down here, if there is the slightest penetration within the labia of the female organ, that is sufficient to constitute statutory rape, and without regard to the extent of the pentration if the other elements of the crime are present.
The objection to defendant's first requested instruction, designated in the brief as No. 2, is not well taken. It is not the province of the court to single out the testimony of particular witnesses in the case and thereby suggest to the jury the weight that should be given to it.
The next objection designated in the brief as defendant's requested instruction No. 4, is sufficiently covered by the general instructions given by the court and therefore unnecessary. The court is not bound to give the instruction in the language requested if the substance of it is given. The refusal of the court to give defendant's instruction, designated in the brief as instruction No. 5, was proper. It consisted of calling the jury's attention pointedly to certain circumstances shown, or attempted to be shown, in the testimony, and then to say that these circumstances alone would not be sufficient to convict the defendant, but that the fact of penetration must be found beyond a reasonable doubt. The court had already instructed the jury upon this point, that penetration must be shown, and it was unnecessary to repeat this instruction. As we said before, it is usually improper for the court to single out certain items of testimony and lay particular stress upon them unless circumstances would seem imperatively to so require, which is not this case.
The court's general charge sufficiently instructed the jury that a mere attempt to commit the crime unaccompanied by penetration would be insufficient to convict the defendant, and that, if they found that he had only proceeded so far as to make an uncompleted attempt, they should acquit him.
Defendant's requested instruction No. 6 is subject to the same criticism as the preceding instruction, and was properly refused. The next instruction, designated in the defendant's brief as instruction No. 8, was also properly refused. This was an attempt to define the degree of penetration and uses the words "into the labia of the female organ having mucous membrane." The rule as held in this state, and generally, is that any penetration into the labia of the pudendum is sufficient, the pudendum being the external female sexual organ. It is difficult to see how the extent of the penetration could make any difference in a case of this kind, the injury being to the morals and reputation of the child, which would be as great where there is a very slight penetration not passing beyond the labia majora as it would be where the penetration extended beyond that point into the labia minora and against the hymen. Whatever may have been the ruling of the courts a hundred years ago or so, they are not now astute to find excuses for that class of degenerates who corrupt the morals and bodies of children by requiring any particular depth of penetration so long as there is even the slightest penetration as the testimony of the state indicates to have been the case here.
On the whole, we find no reversible error in this case, but, on the contrary, the case seems to be very clearly established; and it is difficult to see how the jury could have come to any other conclusion than that arrived at. The judgment is affirmed.
AFFIRMED.