A husband is legally incapable of raping his wife. See Duggins v. State, 76 Okla. Cr. 168, 135 P.2d 347 (1943); Frazier v. State, 48 Tex.Crim. R., 86 S.W. 754 (1905).
But, where a negative averment is an essential and material part of an offense, such negative averment should be pleaded in the indictment or information. See Duggins v. State, 76 Okla. Cr. 168, 135 P.2d 347, 350 (1943); Penn v. State, 13 Okla. Cr. 367, 164 P. 992, 994 (1917); Wright v. State, 21 Okla. Cr. 430, 209 P. 179, 180 (1922). There is no merit to this assertion.
See also, Groskins v. State, 52 Okla. Cr. 197, 4 P.2d 117 (1931), wherein this Court held that it is a general rule that it is only when the exception in a penal statute is incorporated in or with the enacting clause of the statute so as to constitute a material part of the definition or description of the offense that it need be negatived in the information. In Duggins v. State, 76 Okla. Cr. 168, 135 P.2d 347 (1943), this Court held that in a prosecution for rape the information must contain the averment that the female on whom the crime was committed was not the wife of the person accused of perpetrating the offense. The enacting clause of the statute which reads as follows, quoting 21 O.S. 1941 § 1111[ 21-1111]:
"8th. * * * And in all cases of collusion between the accused and the husband of the female, to accomplish such act, both the husband and the accused shall be deemed guilty of rape." As pointed out by counsel for the defendant, the above statutory provisions have been considered at length in the early case of Myers v. State, 19 Okla. Cr. 129, 197 P. 884, 18 A.L.R. 1057. Also see for further treatment the case of Duggins v. State, 76 Okla. Cr. 168, 135 P.2d 347. But one proposition for reversal is advanced, and being that "The evidence is insufficient to warrant a conviction."
See, also, Smith v. State, 75 Okla. Cr. 55, 128 P.2d 250; Pressley v. State, 71 Okla. Cr. 436, 112 P.2d 809. In Duggins v. State, 76 Okla. Cr. 168, 135 P.2d 347, 351, wherein the court said: "There are two other errors shown in the record which would have been sufficient to have required a reversal of this case, towit: The effort of the county attorney to prove the bad reputation of defendant when the defendant had not placed his reputation in issue by offering evidence of his good reputation.
"Where the defendants are cross-examined as to other crimes alleged to have been committed by them, which have no connection with the offense charged, upon which alleged offenses convictions have not been obtained, and the defendants deny the commission of the alleged offenses, it is error to permit the state to introduce witnesses in rebuttal with the view of impeaching the testimony of the defendants by showing the commission of the alleged crimes, as a witness cannot be impeached upon collateral matters." See, also, Lizar v. State, 74 Okla. Cr. 368, 126 P.2d 552; Duggins v. State, 76 Okla. Cr. 168, 135 P.2d 347. In the case of Coppage v. State, 77 Okla. Cr. 414, 142 P.2d 371, 376, the State in a prosecution for sodomy attempted to introduce evidence of an alleged sexual act committed by defendant with another woman and this court stated:
Underhill on Evidence, § 82; 1 Wigmore on Evidence, p. 233; 10 R.C.L. 953; Porter v. State, 8 Okla. Cr. 64, 126 P. 699; Corliss v. State, 12 Okla. Cr. 526, 159 P. 1015.' * * *" In the case of Duggins v. State, 76 Okla. Cr. 168, 135 P.2d 347, 351, this court said in the body of the opinion: "There are two other errors shown in the record which would have been sufficient to have required a reversal of this case, towit: the effort of the county attorney to prove the bad reputation of defendant when the defendant had not placed his reputation in issue by offering evidence of his good reputation.
We have held in some cases that the peculiar wording of the statute was such that it required the indictment or information to be more definite and certain to the end that the defendant could be brought within the rule announced above. Duggins v. State, 76 Okla. Cr. 168, 135 P.2d 347; O'Neil v. State, 76 Okla. Cr. 107, 134 P.2d 1033. In this case the defendant was charged with a misdemeanor, and the information charged him in the words of the statute, and was sufficient as against a general demurrer.
The rules with reference to cases where one is charged with rape have been so fully discussed in cases recently decided by this court, that we deem it unnecessary to again review the many cases that have been decided. Some of these cases are: Weston v. State, 77 Okla. Cr. 51, 138 P.2d 553; Coppage v. State, 76 Okla. Cr. 428, 137 P.2d 797; McComas v. State, 75 Okla. Cr. 321, 131 P.2d 488; Duggins v. State, 76 Okla. Cr. 168, 135 P.2d 347; Gordon v. State, 75 Okla. Cr. 356, 131 P.2d 503; and Kilpatrick v. State, 75 Okla. Cr. 28, 128 P.2d 246; Williams v. State, 65 Okla. Cr. 336, 86 P.2d 1015; Williams v. State, 68 Okla. Cr. 348, 98 P.2d 937; Kitchen v. State, 61 Okla. Cr. 435, 69 P.2d 411; Kitchen v. State, 66 Okla. Cr. 423, 92 P.2d 860; and Kilpatrick v. State, 71 Okla. Cr. 129, 109 P.2d 516.
The sole question presented by this proceeding is whether the information is fatally defective and insufficient to confer jurisdiction on the district court to sentence petitioner for said alleged crime, by reason of its failure to negative the fact that the accused had exposed the sailor to the venereal disease "after becoming an infected person and before being discharged and pronounced cured by a reputable physician in writing." Counsel for petitioner instituted this action after reading the opinion of this court in the case of Duggins v. State, 76 Okla. Cr. 168, 135 P.2d 347, wherein we held that an information charging the crime of rape must contain the negative averment that the female upon whom the crime was committed was not the wife of the person accused of perpetrating the offense. As will be seen by reference to that case, the authorities sustain that proposition.