State of Oklahoma v. John Smith, Jr.

Tulsa, Oklahoma criminal defense lawyer represented the Defendant charged with first degree rape in violation of 21 O.S. 1114.

Reported by: Kent Morlan

To this petition the State made response denying that the case was a bailable offense since the defendant had passed his 18th birthday and was therefore over 18 years of age.

This is a case of first impression in so far as the question as applied to penal statutes, and the clause "over the age of" certain years, is concerned. Petitioner cites in support of his contention two cases from the Supreme Court of Oklahoma construing the term "over the age of". Watson v. Loyal Union Life Association, 143 Okl. 4, 286 P. 888, and Wilson v. Mid-Continent Life Ins. Co., 159 Okl. 191, 14 P.2d 945, 84 A.L.R. 386, and Annotations 84 A.L.R. 389, also 67 C.J.S., p. 541; 29 Am.Jur. 454, Insurance, § 558.

It is suggested by the State that to raise the question in this proceeding is premature since the question of whether defendant is under the age of 18 years is a matter of defense. Such has been the holding of this Court for a long time. Allen v. State, 28 Okl.Cr. 214, 230 P. 277; Brasel v. State, 48 Okl.Cr. 403, 291 P. 807, and McManus v. State, 50 Okl.Cr. 354, 297 P. 830.

It is therefore our conclusion, that, where reference is made in the penal statutes to a "male over eighteen years of age", that any fractional part, or the first moment, of the 18th birthday is the drawing line and constitutes him over 18 years of age, and brings him within the meaning of the provisions of (T. 21, § 1114 [21-1114], O.S. 1951). The petitioner accordingly stands charged with first degree rape, a nonbailable offense. The writ is accordingly denied.