Harvey v. State

Citation14 S.W. 645,53 Ark. 425
PartiesHARVEY v. STATE
Decision Date11 October 1890
CourtSupreme Court of Arkansas

APPEAL from Pulaski Circuit Court, J. W. MARTIN, Judge.

Judgment affirmed.

Marshall & Coffman for appellant.

1. The evidence is sufficient to identify defendant, or to show an attempt to commit rape.

2. To constitute rape in this State force must be used. Fraud or strategy is not sufficient. Even if appellant's intent was to effect his purpose while Mrs. Dean was asleep, he would not be guilty of the offense charged. See 13 Ark. 373; 11 Ark. 409; 86 N.C. 659; 73 Iowa 255; 74 Mo. 24; 12 Tex App., 196; 14 Gray, 415; 30 Ala. 54; 9 S.W. 609; 11 Tex App., 116; 5 S. W., 511; 43 Tex. 583; 53 Ala. 453.

W. E Atkinson, Attorney General, and T. D. Crawford for appellee.

The testimony was sufficient to induce the jury to believe that appellant's intention was to commit rape. Compare 35 Ga. 263; 13 Ired., 246.

The case of Charles v. State, 11 Ark. 390, is not in point, but, if it were, the dictum of the court in that case is not sustained by any good authority. If he intended to effect his purpose while she was asleep, he would be guilty of rape. 3 Whart. & Stille, Med. Jur., sec. 605; 1 Whart., Cr. Law, sec. 561; 12 Cox, C. C., 311; 14 Cox, C. C., 114.

OPINION

HUGHES, J.

The appellant was tried in the Pulaski circuit court upon an indictment containing two counts, in the first of which he is charged with burglary committed with the intent to steal, and in the second of which he is charged with burglary committed with the intent to commit rape. He was convicted on the second count, filed a motion for a new trial, which was overruled, and appealed to this court.

The evidence in the case was circumstantial, and it is contended for appellant that it was neither sufficient to identify the person, who entered the house, as the appellant, nor to show the intent with which the entry was made. Upon the question of the identity of the appellant as the person who entered the house, we think there was sufficient evidence to support the verdict of the jury. Upon the question of the intention of the defendant in entering the house, the testimony shows that he entered it at about or after 12 o'clock at night, and that when discovered he retired through a window which was closed and the blinds to which were fastened, when the woman who was assaulted went to bed in the early part of the night, and that a slat in the blinds had been cut, so as to admit a hand to unfasten them. The testimony further showed that Mrs. Eva Dean was sleeping in the front room of the house of Mrs. Foster on that night with her little boy who was sick; and that Foster and his wife were in an adjoining room in bed; that about 12 o'clock Mrs. Dean, upon whom the assault is charged to have been made, was awakened from sleep by some one breathing hard right over or near her face and touching a private part of her person. She screamed, and saw a broad-shouldered man getting out of the window. There was a lamp burning in the adjoining room occupied by Foster, who had at intervals that night been handing in medicine to Mrs. Dean for her sick boy through a door, which stood ajar between the two rooms.

The appellant was a stranger to Mrs. Dean, and could not have reasonably supposed that she would consent to submit to his embraces. He evidently must have known that she was asleep at the time he stood over her with his face near hers, and touched a private part of her person. We think the evidence was sufficient to warrant the jury in believing that it was the intention of appellant in entering the room to have sexual...

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16 cases
  • Travis v. State, 1774
    • United States
    • Court of Special Appeals of Maryland
    • August 26, 2014
    ...a sleeping victim, the national case law is in essential agreement. King v. State, 978 P.2d 1278, 1280 (Alaska App.1999); Harvey v. State, 53 Ark. 425, 14 S.W. 645, 646 (1890); Davis v. State, 538 So.2d 515, 516 (Fla.App.1989); Brown v. State, 174 Ga.App. 913, 331 S.E.2d 891, 892 (1985) (“s......
  • State v. Pinkard
    • United States
    • United States State Supreme Court of Missouri
    • December 12, 1927
    ...... by actual physical force, or during the unconsciousness of. sleep, is wholly immaterial. There could have been no consent. while the intended victim slept. [State v. Eddings,. 71 Mo. 545; Queen v. Dee, 31 Alb. L. Jour. 43;. Reg. v. Meyers, 12 Cox. Crim. Cas. 311; Harvey. v. State, 14 S.W. 645; State v. Smith, 80 Mo. 518, and authorities cited.] The acts and conduct of. defendant left no doubt of his criminal intent.". . .          It will. be noted that the ruling in the Shroyer case follows previous. rulings of this court. The Shroyer case and ......
  • State v. Moorman, 577PA86
    • United States
    • United States State Supreme Court of North Carolina
    • July 28, 1987
    ...there was sexual intercourse with a victim who was asleep or otherwise incapable of providing resistance or consent. Harvey v. State, 53 Ark. 425, 14 S.W. 645 (1890); Brown v. State, 138 Ga. 814, 76 S.E. 379 (1912); Territory of Hawaii v. Tatsuo Noguchi, 38 Haw. 350 (1949); State v. Lung, 2......
  • State v. Shroyer
    • United States
    • United States State Supreme Court of Missouri
    • May 19, 1891
    ...... 425; Noble v. Blount, 77 Mo. 235. (6) The court did. not err in refusing to reopen the case, and to allow. defendant to introduce evidence as to his character a day. after he had closed his case. This is a matter within the. discretion of the court. Pearce v. Danforth, 13 Mo. 360; Harvey v. Brooks, 36 Mo. 493; Van. Studdiford v. Hazlett, 56 Mo. 322; Nelson v. Betts, 21. Mo.App. 219. . .          . OPINION. . .           [104. Mo. 444] Macfarlane, J. . .          Defendant. was indicted, tried and convicted of an assault with intent. to ......
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