This appeal was perfected by Merle Fitzpatrick, defendant below, from a conviction for incest committed upon his 15-year-old daughter, Jeannine. The jury fixed the punishment of the defendant by imprisonment in the State Penitentiary at McAlester, for a period of 10 years and the judgment and sentence of the district court of Logan county was in accord therewith.
The only question raised by the appeal is that the evidence is insufficient to support the conviction.
The state's case is based primarily, as it would naturally be in a case of this kind, upon the testimony of the defendant's daughter, the victim of the father's uncontrollable lust. Her testimony in substance is substantially as follows: Though she said her father had had intercourse with her six different times, the evidence of the state revolves around three different occasions and the conviction herein is based upon the alleged intercourse of March 30, 1945, as pleaded in the information. Jeannine Fitzpatrick testified that the first act of sexual intercourse took place under circumstances substantially as follows: She said that about a week after Christmas or about the 1st of January 1945, her father went to town and was gone until about midnight. She said that her mother, her older brother Eugene, 18 years of age, Noma, Mildred and Pauline Lovelady had gone hunting. That she and her brother Joe, 7 years of age, and her sister Merlene, 10 years of age, were left at home and were in their bedroom asleep. That her father came home about 11 or 12 o'clock and awakened her and told her to get him some supper. That she got up out of bed in her nightgown. That after she got up he suddenly decided *Page 53 that he didn't want any supper and told her that he did not. He told her to go into his bedroom. She told him that she did not want to go in there and he made her go in. That he pushed her into the room and closed the door. That when he got her into the bedroom he told told her to lay down on the bed and she told him she wasn't going to do it. He then said to her, "Fatherly is the father that opened the daughter's womb." She further testified, "he said that was a statement out of the Bible and that it wasn't wrong." Again she said he told her to lay down on the bed and upon her refusal so to do he pushed her down on the bed and had sexual intercourse with her at that time and place. She said it hurt her private parts. When he had completed the intercourse she got up and went back to bed. She testified on cross examination that the reason she did not tell her mother, her brother, and the Lovelady girls about it was because she was scared. About five minutes later her mother, her brother Eugene, and the Lovelady girls returned from hunting skunks and opossums.
In relation to this incident the defense offered proof on the part of the brother Eugene and one of the Lovelady girls to the effect that they saw the father's automobile drive up when they were about a half block away from the house and that when they arrived at the house he was building a fire in the kitchen stove, apparently in preparation for fixing his supper. The father denied that he had sexual relations with his daughter. His testimony is corroborative of the circumstance as to the opportunity, to the effect that he did arrive before the hunting party returned to the house and that he did wake her up for the purpose of fixing supper. It has been held that: *Page 54
"Opportunity may be considered as one of the circumstances, but it is not 'corroboration', and cannot be considered on the subject of corroboration." Alcorn v. State, 70 Okla. Crim. 386,106 P.2d 838.
Jeannine Fitzpatrick testified that the second time her father had intercourse with her was about two weeks later. She said her father left the house, she thought, to go to the neighbors. She said that after he had been gone some little time she left the house to go to the outside toilet; that he saw her before she returned to the house. That there was a pile of baled hay out behind the toilet. When she first saw him she didn't think anything about it. He then told her to come out by the hay pile and she said she then knew what he was going to do. She said it was quite dark and the rest of the family was in the house. When they got to the hay pile he told her to lay down and she said she was not going to do it, but he pushed her down, and held her hands and had a second act of sexual intercourse with her. In relation to this act of intercourse, the father said no such thing ever occurred. Jeannine Fitzpatrick testified that after this second act of intercourse, the next day she told her mother about it. She said that four acts of intercourse occurred following the first two which she testified about.
The last act of intercourse concerning which she testified, is the one alleged in the information. She said it took place on March 30, 1945. The way she fixed the date was because it was the day following her little brother's birthday. She said that her mother and her uncle and aunt, Mr. and Mrs. Lloyd Parker, from Wichita, Kan., had driven to Muskogee on business. That on their return from Muskogee they brought a birthday cake. That that day she and her brothers Eugene and Joe and her sister went to school and that they returned home on *Page 55 the bus about 4:30 that afternoon. That when she came home she immediately started washing dishes. That her older brother Eugene changed his clothes and went to help his father who was plowing in the field about a quarter of a mile away. That after her brother left and had been gone a few minutes, her father came in. He told Merlene, the little sister and her little brother Joe to feed the chickens and gather up the eggs and that when they got through they would go to the show. That left just her and her father in the house together. Her testimony in relation to this act of intercourse, in response to a question to relate what happened, is as follows, to wit:
"He told me to stop doing dishes and to go in his bedroom and I told him I wasn't going to do it, and he told me that he wouldn't give me any more lunch money or anything if I didn't, and I told him I didn't care, and he pushed me in his bedroom and then he told me to lay down, and I told him I wasn't going to do it and he pushed me onto the bed, and then he had sexual intercourse with me, for the last time."
She said that he then told her she didn't need to fix any supper that night, that "we would go to town and eat and go to a show." That he then went after the cows. That about dark Eugene unharnessed the horses and fed them. That her father had already got the cows in and separated the milk. That they then got ready and started in to town to eat and to go to the show. She said that they all loaded into the pick-up and started to Guthrie, but that they had only gotten a little ways down the road when they saw her aunt, uncle and mother pass them. They then turned around and went back home. When they got home her mother prepared supper. That they all had some of the birthday cake which her mother had brought home as a surprise for her little brother, Joe, whose birthday they had celebrated the day before. *Page 56
She further testified in response to a question as to what, if anything, her father said to her about her menstrual periods from the first to the last act of sexual intercourse, as follows: "He always wanted to know if they were regular." She said that she had told her mother about these acts of intercourse and she said her mother called her daddy in and accused him in her presence. On April 26, 1945, her mother committed suicide.
She said that she had never run around with boys and that she had never had acts of sexual intercourse with anybody other than her father. In this connection, Doctor P. B. Gardner, who testified at the preliminary hearing, but who had since died, testified that he examined her on April 28, 1945, two days after her mother died. He said that in his opinion he was sure that Jeannine Fitzpatrick had had sexual intercourse. The state did not see fit to cross-examine Doctor Gardner. His evidence stands uncontradicted in the record.
The record shows that later on she left Guthrie and went to Wichita, Kan., and later on to Kansas City with a girl friend. She said that the reason she did that was because she thought everybody knew about it and she couldn't stand it.
Jeannine's 10-year-old sister, Merlene Fitzpatrick, testified that she and Eugene, Joe and Jeannine went to school on March 30th. That she could remember the day in question because it was the day after Joe's birthday. That when they came home from school, her brother Eugene went and relieved their father who was plowing and her father came to the house. She said that when her father got to the house he told Joe and her to go gather the eggs. That they went to hunt eggs in the chicken house, out by the toilet and around the turkey *Page 57 pen, and that they gathered a half a bucket of eggs. That when they got through gathering the eggs they fed the chickens and that during this time her daddy and Jeannine were in the house. That her brother Eugene came back from the field about dark. That she does not know where her father and sister were while they were gathering eggs and doing the chores.
Jeannine's grandmother, Mrs. Mamie Price, testified that the day after the death of her daughter, Goldia, she was in the Fitzpatrick yard crying. That Jeannine came out of the house and put her arms around her neck and went to crying too and that she told her what had happened between her and her father. That her daughter, Rosemary, came out into the yard and that both she and Jeannine told her about it. She said that Rosemary then went back into the house and got her husband. That they left and went to the home of Mr. Adams, the county attorney. It is pertinent to note here that the story related by Jeannine Fitzpatrick at the trial is apparently the same that she testified to on the preliminary hearing. The record does not disclose and no one testified to any conflicting or contradictory statements as to the acts of sexual intercourse which Jeannine Fitzpatrick testified occurred between her father and herself. In other words, she doesn't tell one story to her grandmother, testify to another story on the preliminary hearing, and then tell another story at the trial of the case on its merits. Neither is her story improbable. This being true, her story needs no corroboration if the jury believed she was telling the truth. Beginning with Reeves v. Territory,2 Okla. Crim. 351, 10 P. 1039, this court has long adhered to the rule that a conviction may be had upon the uncorroborated testimony of a prosecutrix in cases of this kind. *Page 58 See in this connection, Morris v. State, 9 Okla. Crim. 241,131 P. 731, 735, wherein it was said:
"This court does not hold with some, that, as a matter of law, rape cannot be established by the uncorroborated testimony of the prosecutrix," and then says, "where the testimony of the prosecutrix bears upon its face inherent evidence of improbability, there should be corroboration by other evidence, connecting the defendant with the commission of the crime."
Such has been the consistent rule of this court. See Ferbrache v. State, 21 Okla. Crim. 256, 206 P. 617; McLaurin v. State, 34 Okla. Crim. 324, 246 P. 669; Williams v. State,61 Okla. Crim. 396, 68 P.2d 530; Self v. State, 62 Okla. Crim. 208,70 P.2d 1083; Matherly v. State, 62 Okla. Crim. 418, 71 P.2d 1094. See, also, Alcorn v. State, supra, wherein this court said:
"While a conviction for statutory rape may be had on the uncorroborated testimony of the prosecutrix, this is only warranted when all the other facts and circumstances of the offense are corroborative of her testimony and her statements are not inconsistent or contradictory."
You may search this record from one end to the other and you will not find any contradictory statements made by Jeannine Fitzpatrick as to these alleged acts of intercourse. She never varied her story — it was the same all the way. It is true that her testimony, in relation to the opportunity afforded for the first act of intercourse, is denied by her brother Eugene and by the Lovelady girl. It is also true that her father expressly denied that he had intercourse with his daughter. But, the mere fact that other witnesses contradict her story of the incident as alleged in the information and as established in the record does not render her testimony "inherently improbable", inconsistent and contradictory itself, *Page 59 and of such a character requiring corroboration. It merely creates an issue of fact to be decided by the jury. The evidence offered by Jeannine Fitzpatrick, not being inherently improbable, conflicting, inconsistent, or contradictory, requires no corroboration. But, for the sake of argument, assuming that her evidence was of such a nature as to require corroboration, we believe the record affords ample evidence, highly corroborative of the incidents and things concerning which she gave testimony. The testimony of Doctor Gardner as to the fact that she had had intercourse corroborates her. The record discloses that she never had dates with any boys; this corroborates her. She is corroborated by her little sister, Merlene Fitzpatrick, 10 years of age, as to the facts affording opportunity for the accomplishment of the acts of intercourse performed by the father upon Jeannine. The fact that she told her mother of these acts of intercourse, after the second time, is corroborative of her story. Merle Fitzpatrick, the father, admits that his wife accused him of having relations with Jeannine some time before his wife's death. He testified that the occasion for the accusation was the finding of Jeannine's stained underwear among the soiled clothes and that that was when she called the daughter in and confronted him. But, he admitted that she had mentioned it several times to him before. Another fact that is corroborative of Jeannine's evidence is the fact that while she was in Wichita, Kan., her brother came to her and tried to get her to change her story. He testified that: "She said she was telling the truth and that is all I could say." Another strong circumstance corroborative of her testimony is the fact that when 30 days after she told her mother, her mother committed suicide. She just couldn't stand it. *Page 60
A very strong circumstance, lending credence to the prosecutrix' story and which no doubt influenced the jury in weighing the evidence, was the statement the father made immediately before he accomplished his first act of intercourse with his daughter, to the effect that; "Fatherly was the father that opened the daughter's womb. That's a statement from the Bible and that it wasn't wrong." No doubt the jury was of the opinion that a child 14 years of age, though she be of so ever a contriving mind, would not have thought of such a statement. Another thing that lends credence to the prosecutrix' story which was persuasive on the jury in weighing the evidence, was the fact that her father was so solicitous with reference to her menstrual periods. Another thing that apparently appealed to the jury in weighing the evidence was when he accomplished the last act of intercourse — the fact that "he told me he wouldn't give me any lunch money or anything if I didn't." Moreover the testimony of the prosecutrix in relation to the first two acts of intercourse are corroborative of the act relied upon as charged in the information. As was said by this court in Pruett v. State, 35 Okla. Crim. 359, 250 P. 1029, 1031:
"In a prosecution for incest, evidence tending to establish acts of incest at times other than and prior to that relied on for the conviction is admissible as indicating continuousness of the illicit relation and as tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction."
As we have hereinbefore said, her story, not being inherently improbable and not being conflicting, inconsistent or contradictory but being consistent throughout, it requires no corroboration. But, conceding that it does require corroboration, there is sufficient corroboration of *Page 61 her story as revealed by this record to create an issue of fact for the jury.
It was further held in the Pruett case, supra:
"In a prosecution for incest, whether there was any corroborating testimony supporting the prosecuting witness was a question of law for the court, but its sufficiency was a question of fact for the jury."
See, also, Ellsworth v. State, 10 Okla. Crim. 452, 137 P. 1188,1189; Williams v. State, 14 Okla. Crim. 195, 169 P. 655. This rule, as to the sufficiency of corroboration being a question of fact for the jury as announced by Pruett v. State, supra, [62 Okla. Crim. 418, 71 P.2d 1098] was cited with approval in Matherly v. State, supra. Therein, it was said:
"The question of the sufficiency of the corroboration is a question of fact for the jury."
This court has repeatedly held that if there is a conflict in the evidence or different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts and that the jury is the exclusive judge as to the weight of the evidence. That where there is a direct conflict in the evidence, or it is such that different inferences may be properly drawn from it, the jury's determination will not be interfered with upon the ground that the evidence is insufficient to sustain a conviction where there is competent evidence in the record from which the jury might reasonably conclude that the defendant is guilty. See Drennon v. State,69 Okla. Crim. 348, 102 P.2d 952; Smiley v. State, 72 Okla. Crim. 100,113 P.2d 838; Salisbury v. State, 80 Okla. Crim. 13,156 P.2d 149; Graham v. State, 80 Okla. Crim. 159, 157 P.2d 758, 759, a recent case, wherein this court said:
"Where the evidence is conflicting, the weight of the evidence and the credibility of the witnesses is for the *Page 62 jury, and Criminal Court of Appeals will not substitute its judgment for that of the jury where there is evidence reasonably tending to support the conclusion arrived at by the jury."
Wirth v. State, 79 Okla. Crim. 59, 151 P.2d 819, 820, wherein this court said:
"Where the evidence is conflicting and that offered by the State is sufficient to sustain the judgment and sentence, the same will not be set aside on appeal."
While we are not unmindful, as is set forth in the dissenting opinion and as has been repeatedly held by this court, that the charge of rape or incest or illicit sexual relations is one that is easily made and often inspired by malice, hidden motives, or revenge, and evidence to establish the same may be easily fabricated and hard to disprove. And, as has been well stated by an eminent jurist:
"There is no class of prosecution attendant with so much danger or which affords so ample an opportunity for free play of malice and private vengeance, in which case the accused is almost defenseless."
Even in the face of this danger, this court is not warranted in invading the province of the jury to weigh the evidence except in cases as have hereinbefore been set forth where the testimony of the prosecuting witness is inherently improbable, conflicting, inconsistent, and contradictory. No such situation confronts the court in the case at bar. The jury having had the opportunity to hear the evidence of the witnesses and to observe their demeanor on the witness stand and the weight of the evidence being sufficient to sustain either the prosecution or the defense created an issue of fact for the jury, under the law. The situation being thus as it is, we must affirm the judgment and sentence pronounced herein. *Page 63
JONES, J., concurs. BAREFOOT, P. J., dissents.