es.

and to have the trial postponed until the attachments were executed. He did not ask for attachments; and no reason is given for the nonattendance of any of these witnessIf attachments had issued and proved unavailing on account of sickness, absence, or other sufficient reason, then a different question would be presented. The application is defective in failing to show where these witnesses reside, or any probability of procuring their attendance at some future time; and the court could not determine from the application that there was any more probability of their obeying a subpoena at the next term of court than at the present term. Applications for continuance are always addressed to the sound discretion of the trial court; and no rule is more firmly established in this state than that this court will not reverse a judgment of the trial court, upon the ground that it refused to grant a continuance, unless it appears that such court has manifestly abused its discretion in refusing it.

by sex and tender years, is within the discretion of the trial court; being a discre tionary matter, it falls within the familiar rule that the discretion of the trial court in respect thereto is not subject to review, except for a manifest abuse thereof: The other objections made to the rulings of the court on the admission and exclusion of evidence are without merit.

[6] The next assignment of error is based upon the instructions given by the court. Instruction No. 5 is as follows: "You are further instructed that rape is divided into two degrees, first and second, and that each degree is made punishable by imprisonment in the state prison." This instruction must be considered in connection with instructions Nos. 3 and 4, defining what constitutes a felony and what constitutes rape. The provision of the Penal Code (section 2319, Snyder's Sts.), defining the offense for which the defendant was on trial, provides: "Every person who is guilty of an assault with intent to commit any felony, except an assault with intent to kill, the punishment for which assault is not prescribed by the preceding section, is punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonA.ment." The statute does not say, "Every person who is guilty of an assault with intent to commit rape shall be punished," etc., but uses the word "felony," thereby including other felonious assaults; and it was the duty of the court to inform the jury that rape, in any degree, is a felony. While the instruction could have been simplined by saying, "You are instructed that the crime of rape is a felony under our statutes," we think the defendant was in no way prejudiced in any substantial right by this or any other instruction given by the court.

The next error assigned is that the court erred in the admission and rejection of evidence. Counsel in their brief state: "Under this assignment, we desire to call the court's attention to the leading character of the questions of the county attorney in examining the prosecuting witness, as follows: Q. State to the jury what happened.

I left him at the well, and I went about 10
steps from the well and was picking up
haws; and when the last bucket of water
was poured I supposed he would say, 'Come
on.' Q. Then what happened? A. He jerk-
ed me up and threw me down on the ground.
Q. Then what? A. Had his arm around my
neck and my head under his arm; and when
he picked me up I thought he was playing. |
Q. Go ahead and tell what happened. (Ob-
jected to as leading the witness.) Judge:
Just tell it. A. Jerked me up and threw me
on the ground; and when he did that I
knew what he meant then, and commenced
fighting and scratching. Q. What did he do?
A. Ripped my drawers open. Q. Where-
abouts? A. On the side. Q. Then what?
Go ahead. After he ripped your drawers,
then what? A. He was fixing to. Q. Go
ahead. A. He was fixing to put; then papa
walked up. Q. What was the condition of
his pants? What did he do with his pants,
and what condition were they in? He did
not do anything, just fixing to. Q. Tell the
jury just what he did. State whether or
not he unbuttoned his pants. (Objected to
as leading. Objection overruled. Defendant
excepts.) A. Yes, sir; unbuttoned his pants.
Q. What else did he do? A. He did not do
anything, just fixing to, when papa walked
up. Q. Did he take out his privates?
Yes, sir. (Objected to as leading and sug-
gestive. Objection overruled. Defendant ex-
cepts.)"

A.

[5] Permitting leading questions, where the diffidence of the witness is occasioned

[3] The important question presented for decision is upon the next assignment of error, that the court erred in refusing to give the following requested instructions:

"I charge you in this case, if you believe from the evidence that at the time alleged the prosecutrix voluntarily consented to an act of intercourse, or attempted intercourse, between her and the defendant, and that said act was not against her will, and no force was used, then you will acquit the defendant. Refused. Robt. M. Rainey, Judge." "I charge you in this case that in the charge of rape a partial or half-hearted resistance on the part of the prosecutrix would not suffice; that, before the crime of assault to rape can be shown, the proof must show that the female resisted to the full extent of her powers, under the circumstances, and that her resistance was overcome by force. Refused. Robt. M. Rainey, Judge."

In support of this assignment, counsel cite the cases of Young v. Territory, 8 Okl. 525,

*

58 Pac. 724, and Rector v. Territory, 9 Okl. | resistance she might make, the authorities 530, 60 Pac. 275. In the Young Case, Mr. Chief are not harmonious. That question is not Justice Burford, who wrote the opinion of before us. Carnal knowledge of a female the court therein, says: "The material aver- child under 16 years of age is rape under ments of the indictment are as follows: our statute, with or without the use of force, 'John Young, on the 19th day of June, in no matter what may be the circumstances, the year 1897, in the said county of Woods, and the question of consent is wholly immadid willfully, violently, unlawfully, and felo- terial; whether the prosecutrix submitted to niously, in and upon one Ethel Gray, make the acts of the defendant in ignorance of his an assault, and her, the said Ethel Gray, be- criminal intent, or whether she exercised a ing then and there a female under the age positive will, and consented or submitted to of 14 years, and of the age of 12 years, and what the defendant did with full knowledge her, the said Ethel Gray, did wound and ill- that his purpose and intent was to have cartreat, with intention her, the said Ethel nal connection with her, is immaterial. Gray, and against her will, feloniously to ravish and carnally know. *There is no allegation that the defendant intended to have sexual intercourse with the said Ethel Gray by force and violence, sufficient to overcome any resistance she might make. This is necessary, in order to constitute rape under this subdivision. There must have been an intent, at the time of the assault, to have sexual intercourse with Ethel Gray; and the defendant must have intended to use the amount of force necessary to overcome her resistance, and all the resistance she might make. If she did not resist, it would not be rape; hence it must be alleged that defendant assaulted the female with intent, then and there, to have sexual intercourse with the said Ethel Gray, and by force or violence to overcome her resistance, and this intent and purpose must be proved." The Rector Case reaffirms this doctrine.

[1, 2] There is no testimony in this case from which it can be fairly inferred that the prosecutrix consented to an act of sexual intercourse. She herself expressly denied it. There is testimony tending to show that she submitted, without objection, to the acts constituting the alleged assault. However, as the jury had the right and might have drawn a different conclusion from the evidence, we think it our duty to consider the principle of law enunciated in the decisions cited. The question, then, presented for decision is whether the consent of the prosecutrix does or does not deprive the acts of the defendant of the character of an assault? The decisions of the territorial Supreme Court, construing the provisions of our Penal Code and Procedure Criminal, enacted while we were under territorial government, are most valuable to us as authorities, and we pay them the highest respect. However, upon careful consideration, our opinion is that the doctrine declared in the case of Young v. Territory, supra, on this question should not be followed, but should be expressly overruled as not sound in principle and contrary to the overwhelming weight of authority. Upon the question whether an accusation for assault with intent to commit rape by force, where the female is over the age of consent, should contain an averment that the defendant assaulted the female by

The prosecutrix being under the age of consent was conclusively incapable of legally consenting to an assault with intent to have carnal knowledge of her. Every attempt to commit a felony against the person involves an assault; and if the acts of the defendant, done in furtherance of a purpose to have carnal knowledge of the prosecutrix, constituted an assault to commit rape, if done without her consent, then no act of hers could waive such assault.

That there may be an assault with intent to rape upon a consenting female, where she is under the age of consent, on the ground that in law she cannot consent to such an assault, is held in the following cases: People v. Johnson, 131 Cal. 511, 63 Pac. 842; Gibbs v. People, 36 Colo. 452, 85 Pac. 425; Territory v. Keyes, 5 Dak. 244, 38 N. W. 440; Schang v. State, 43 Fla. 561, 31 South. 346; Hanes v. State, 155 Ind. 112, 57 N. E. 704; State v. Johnson, 133 Iowa, 38, 110 N. W. 170; Com. v. Roosnell, 143 Mass. 32, 8 N. E. 747; People v. Chamblin, 149 Mich. 653, 113 N. W. 27; State v. Wray, 109 Mo. 594, 19 S. W. 86; Liebscher v. State, 69 Neb. 395, 95 N. W. 870, 5 Ann. Cas. 351; State v. Jackson, 65 N. J. Law, 105, 46 Atl. 764; Singer v. People, 75 N. Y. 608; State v. Dancy, 83 N. C. 608; State v. Sargent, 32 Or. 110, 49 Pac. 889; Croomes v. State, 40 Tex. Cr. R. 672, 51 S. W. 924, 53 S. W. 882; State v. Clark, 77 Vt. 10, 58 Atl. 796; Glover v. Commonwealth, 86 Va. 382, 10 S. E. 420; State v. Hunter, 18 Wash. 670, 52 Pac. 247; Loose v. State, 120 Wis. 115, 97 N. W. 526; Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217; Cyc. vol. 33, p. 1434, footnote 51. See, also, volume 2, Am. Ency. L. (2d Ed.) p. 987, and page 361, vol. 1, of Supp., and cases cited in the footnotes.

The instructions requested and refused are based upon the theory that the felonious intent cannot be shown without proof of resistance on the part of the prosecutrix, or that the force used by the defendant was against her will, and in effect require that, in order to convict, the jury should be satisfied that the defendant assaulted prosecutrix with the felonious intent to have sexual intercourse with her by force or violence, sufficient to overcome any resistance she might make. As we have seen, this is not

ted with intent to rape a female child under | paneled, and sworn in the above-entitled the statutory age of consent. The court very properly refused to give these instructions. Having considered all the assignments argued, and finding no prejudicial error in the record, the judgment of the district court of Pontotoc county is affirmed.

FURMAN, P. J., and ARMSTRONG, J.,

concur.

(7 Okl. Cr. 165)

TETER v. STATE. (Criminal Court of Appeals of Oklahoma. April 17, 1912.)

(Syllabus by the Court.)

1. CRIMINAL LAW (§ 594*)-CONTINUANCES-
ABSENCE OF WITNESSES.
Where, in a criminal prosecution, the de-
fendant filed a written præcipe in the county
court for twelve witnesses eight days before
the day set for trial, and the judge and clerk
of said court neglected to issue a subpoena for
said witnesses, and the defendant, on the day
set for trial, files his verified application for
continuance, setting forth the foregoing facts
and what would be the testimony of the wit-
nesses, if present, and such testimony is ma-
terial, and the court overrules the application
upon the county attorney consenting that the
allegations of the affidavit for continuance shall
be taken as and for the testimony of the absent
witnesses, held, prejudicial error; that up to
that time the defendant had used sufficient dili-
genoe to procure the attendance of his witness-
es, and their absence was due to the failure of
the judge or clerk of the court to issue the
subpoena, and for this reason the continuance
should have been granted.

cause, do, upon our oaths, find the defendants guilty, as charged in the information herein, and fix the punishment of J. Teter at a fine of three hundred dollars and sixty days in the county jail, and fix the punishment of J. M. Dickerson at a fine of three hundred dollars and sixty days in the county jail."

There are numerous errors alleged in the petition; but the only one necessary to notice is the assignment that the court erred in overruling the defendant's application for continuance.

The defendant's affidavit for continuance reads as follows:

"J. C. Teter, being duly sworn, deposes and says that he is one of the defendants in the above-styled cause. That said defendant cannot safely proceed to trial of said cause at this time for the want of material evidence, which defendant has been unable to procure by due diligence, to wit, the testimony of Henry Galispie, D. M. Alexander, A. F. Jackson, George Hatcher, W. P. Cooper, Dave Geahan, Joe Witten, B. J. Elrod, S. H. Eliot, Mr. Lowe, Mr. Rogers, and Mr. Duncan, all of whom are residents of or near That Sentinel, in said Washita county. said defendant is charged with having, on the 7th day of April, 1910, maintained a place, to wit, the Sentinel Wagon Yard, where intoxicating liquors were received and kept, for the purpose of selling, bartering, giving away, and otherwise furnishing the same. That on the 30th day of August, 1910, deponent's attorney, W. J. Knott, filled out a præcipe containing the names of said witnesses and requiring a subpoena to issue for their attendance before said court on this 8th day of September, 1910, at 9 o'clock a. Ordinarily an application for continuance m., and that the same be delivered to the on account of the sickness of the defendant's sheriff of said county for service, and on attorney is within the discretion of the trial said last-named date W. J. Knott handed said court; yet, where defendant's attorney is taken suddenly sick an hour before the case is præcipe to the clerk of this court and recalled for trial, which sickness resulted fatal-quested that he issue said subpoenas. That ly two days thereafter, the court erred in refusing a continuance, and, under the circumstances, should have granted a new trial.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. § 594.*]

2. CRIMINAL LAW (§ 593*)-CONTINUANCESICKNESS OF ATTORNEY.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1320; Dec. Dig. § 593.*]

Appeal from Washita County Court; L. R. Shean, Judge.

J. Teter was convicted of a violation of the prohibition law, and appeals. Reversed.

Le Roy Jones, for plaintiff in error. Chas. West, Atty. Gen., and E. G. Spilman and Smith C. Matson, Asst. Attys. Gen., for the

State.

deponent and his said attorney, from that time until this morning, at about 9 o'clock, supposed that said subpoenas had been issued by the clerk and placed in the hands of the sheriff for service, but upon an examination of the files and papers in said cause this morning deponent found that no subpœnas had been issued upon said præcipe for said witnesses, or either of them, and that the files and papers of said cause contained said

præcipe as made and handed to the clerk by deponent. That said witnesses, except Alexander and Lowe, are absent, but are now in Washita county, as deponent is informed and believes. Said præcipe is hereto attached, marked 'Ex. A.' That defendants expect to show the following facts by said witnesses, and if said witnesses were present they would testify as follows: That at and prior to the time of the commission of the alleged Upon their trial, the jury returned the fol- offense they were frequently at said wagon lowing verdict: "We, the jury drawn, im-yard on business, and were frequently in and For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

DOYLE, J. The plaintiff in error was tried and convicted on an information, wherein he was jointly charged with one J. M. Dickerson with maintaining a place for the unlawful sale of intoxicating liquors.

his affidavit. This ground of the application was amply sufficient for a continuance.

[2] In addition thereto, the record shows that the defendant's attorney, W. J. Knott, Esq., was taken suddenly sick about an hour before the case was called for trial, and was compelled to go to his home; that Mr. Knott's sickness resulted fatally the second day thereafter. While an application for continuance on account of the sickness of an attorney is addressed to the sound discretion of the trial court, we think that in

granted, at least for a few days, if not for the term, by reason thereof; and we are clearly of opinion that the court erred in refusing to grant a new trial, under the circumstances of this case, for this reason alone.

out of the same and about the premises; that no liquor of any kind was kept at said wagon yard or received by defendant; that they did not see any intoxicating liquor sold, given away, bartered, or otherwise furnished by defendant, or any one else, about said wagon yard; and that they were in said wagon yard and about the premises often, and if there had been any liquor kept there, or sold or bartered, given away, or otherwise furnished, said witnesses would have known it and seen the same; and that said witnesses saw nothing about said wagon yard, ei- | this case the continuance should have been ther inside or outside, to indicate that liquors were kept or in any wise handled or trafficked in by any one. That defendant cannot prove such facts by any other witnesses, and deponent believes them to be true. Wherefore, defendant asks that said cause be continued until the next term of this court, at which time defendant will be able to procure the attendance of said witnesses, and deponent further says that his attorney, W. J. Knott, was taken sick a short time ago, about an hour ago, and on account thereof has been compelled to go home, and is wholly unable, on account of such sickness, to represent defendant, and, defendant having fully depended upon his said attorney to defend him, he is practically without counsel, as no other lawyer is acquainted with the facts of the case, and deponent has not had time to consult and advise with any other attorney. J. C. Teter.

"Subscribed and sworn to before me this 8th day of September, 1910. L. R. Shean, County Judge. [Seal.]"

This refusal to grant a continuance is not the only error in this case. One or two other assignments seem well taken. However, it is unnecessary to discuss the same, further than to say that the evidence in the case, in so far as it relates to the guilt of this defendant, is of very doubtful character.

For the reasons stated, the judgment of the county court of Washita county is reversed.

FURMAN, P. J., and ARMSTRONG, J.,

concur.

PARKER v. STATE.

(7 Okl. Cr. 238)

(Criminal Court of Appeals of Oklahoma. April 25, 1912.)

(Syllabus by the Court.)

Attached thereto as an exhibit was a written præcipe, filed by the defendant in the county court August 30th. The affidavit as to what these absent witnesses would prove was not admitted; but the county attorney 1. CRIMINAL LAW (§ 576*)—DELAY IN PROSannounced that he would consent that the affidavit be treated as the deposition of the absent witnesses. Thereupon the court refused the continuance.

[1] This court is of opinion that forcing the defendant to trial under the circumstances was error. The diligence used by the defendant appears to have been sufficient. When the præcipe for subpoenas to issue for these witnesses was filed with the clerk of the court, it was the duty of the judge or clerk to issue subpoenas in accordance therewith. This they failed to do. A defendant should not be deprived of the right to have his witnesses in attendance on account of the carelessness, negligence, or failure of the clerk of the court to issue a subpoena therefor, when he has made proper application; and the county attorney's consent that the allegations of the affidavit for continuance shall be taken as and for the testimony of the absent witnesses did not cure this error. The defendant was entitled to the oral evidence of his witnesses in person before the jury, and not their evidence reflected through

ECUTION-DISMISSAL.

Where a defendant seeks to secure the dismissal of a prosecution against him, upon the ground that he was not brought to trial at the next term of the court in which the prosecution was triable after it was filed therein, as is provided by sections 7047 and 7048, Comp. Laws 1909, the burden is on the defendant to prove that the trial has not been posthas made this proof, the burden is then on the poned on his application. When the defendant state to prove that good cause existed for such postponement.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1297-1304; Dec. Dig. 576.*]

2. CRIMINAL LAW (§ 576*)-DELAY IN PROSECUTION-DISMISSAL.

Before a prosecution will be dismissed against a defendant because it is not brought to trial within the time prescribed by sections 7047, 7048, Comp. Laws 1909, the defendant ed a trial, and objected to a postponement or must prove that he was ready for and demandcontinuance of the case. If he does not do this, he will be held in law to have waived his right to demand the dismissal of the case under the provisions of the sections above quoted.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1297-1304; Dec. Dig. 8 576.*]

3. STATUTES (8 241*)-PENAL LAWS-DUTY [[89 Ga. 482], 15 S. E. 553; In re Garvey [7 OF COURTS.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

t118 Pac. 160.