Gooding v. State

1959 OK CR 88, 343 P.2d 193, 1959 Okla. Crim. App. LEXIS 248

• Court: Court of Criminal Appeals of Oklahoma
• Decided: August 5, 1959
• Docket: No. A-12745
• Status: Published

Opinion

BRETT, Judge.

Plaintiff in error, Virgil Gooding, was charged by information in the District Court of Pawnee County, Oklahoma, with the crime of rape in the second degree, allegedly committed on the 28th day of June, 1958. He was tried by a jury, convicted, and his punishment fixed at eight years in the state penitentiary. Judgment and sentence were entered accordingly, from which this appeal by transcript has been perfected.

Examination of the transcript reveals that the information is clear and concise. It charges the defendant in the language of the statute with unlawfully having had sexual intercourse with the female victim, under the age of sixteen years, not the wife of the said Virgil Gooding, and thus committing the crime of second degree rape. The information advised the defendant of the charge against him and the demurrer to the information was properly overruled. Upchurch v. State, 49 Okl. Cr. 81, 292 P. 379; Brasel v. State, 48 Okl. Cr. 403, 291 P. 807, holding it is not necessary to allege the age of the male.

Where an appeal is by transcript, the Court will examine the transcript only for fundamental error, and if none is found, the judgment and sentence will be affirmed. Cherry v. State, 61 Okl.Cr. 376, 69 P.2d 407. We have carefully examined the transcript of the record and considered the same. The proceedings leading up to the judgment appear to be regular. A careful examination of the instructions given by the court disclose no fundamental error. The judgment conforms to the charge and the sentence imposed is within the limit allowed by statute. 21 O.S.1951 § 1116.

Finding no fundamental error, the judgment and sentence is affirmed.

POWELL, P. J., and NIX, J., concur..