Bailey v. State

• Decision Date: 11 April 1949
• Docket Number: 4553
• Citation: 219 S.W.2d 424,215 Ark. 53
• Parties: Bailey v. State
• Court: Arkansas Supreme Court

219 S.W.2d 424

215 Ark. 53

Bailey v. State

No. 4553

Supreme Court of Arkansas

April 11, 1949

Appeal from Pulaski Circuit Court, First Division; Gus Fulk, Judge.

Affirmed.

Ross Robley and Elmer Schoggen, for appellant.

Ike Murry, Attorney General and Arnold Adams, Assistant Attorney General, for appellee.

Griffin Smith, Chief Justice.

OPINION

The verdict was: "We, the jury, find . . . John Bailey guilty of rape . . . and assess his punishment at life imprisonment in the penitentiary."

From a judgment responsive to the verdict the defendant's appeal seeks reversal on four grounds: (1) The jury was misled by the Court's reply to questions propounded regarding the right to recommend clemency. (2) A failure to instruct on lower degrees of crime, the only affirmative evidence showing rape, was prejudicial. (3) A preliminary hearing was denied hence the information should have been quashed. (4) Systematic exclusion of women from jury panels was a denial of due process.

The facts present a sordid picture. Appellant, a married man with one child in esse and another expectant, went with Lee Doyle to a place where beer was sold. Doyle told Bailey he had a "date" with a girl whom he named. Doyle presumptively at Bailey's request, telephoned his girl friend and asked that she procure a companion for Bailey. As a result of such overtures, Bailey's companion was virtually held prisoner for the night and repeatedly raped.

After patronizing places of incidental amusement the four, in Bailey's car, drove to Boyle Park. During a short stop Doyle and his companion got out and walked to the rear. While they were talking and smoking cigarettes Bailey suddenly drove away, and was not seen again by Doyle that night.

The prosecuting witness, 20 years of age, employed by a Little Rock real estate firm, testified that it was after eleven o'clock when the Boyle Park stop was made, on a dirt or gravel road. Shortly after Doyle and his companion got out of the car, Bailey became aggressive, but discontinued the struggle when it seemed likely the encounter might attract attention. Testimony on this phase of the assault was: "I screamed and screamed so much that he got up and said, 'I'm sorry: I didn't know you were a nice girl. Come on and we will find the other couple.'" With this comment Bailey drove off, but the prosecuting witness did not know where they went. There were no houses in sight, no lights, or people. The witness then said:

"He stopped and didn't waste any time. He dragged me out of the car, threw me on the ground [on a blanket] and attacked me."

It is not necessary to repeat the details, which established completed rape. The witness said she kept screaming, and that a car approached; whereupon Bailey jumped up and said, 'Come on, let's get back in the car.' Instead of complying with the request, the unfortunate girl ran to the other car and begged for protection. The occupants proved to be Willie Ford and (Miss) Billy Garrin, who explained while testifying that in driving within Boyle Park they came to a dead-end road. In making a "U" turn a girl was heard calling for help. Ford was a paroled convict who worked for a bottling company. When the girl with Bailey begged to be taken to North Little Rock, Ford declined through fear that his parole would be revoked. The prosecuting witness got in Ford's car and talked with Ford's companion, revealing part of the sordid story. Ford, however, persisted in his refusal to give aid. The prosecuting witness, who in the meantime had been taken by Bailey to his own car, begged the couple to follow them to town, and this they promised to do. En route Bailey drove so rapidly that contact was lost. Ford's companion stopped and telephoned officers, and Ford later made a report.

The prosecuting witness, in explaining Ford's refusal to assist, testified that Bailey "dragged her" from the rear seat of Ford's car and forcibly returned her to his own conveyance. Ford told her he had taken Bailey's license number, that he would follow them, and if anything happened he would telephone the Sheriff: -- "Then he drove awfully fast an awfully long way to where he stopped again, and pulled off the highway onto a dirt road in the woods. Before he had completely stopped I jumped out of the car and ran a distance equal to half a block before he caught me and dragged me back." The transaction at that time was attempt to rape, but ". . . he kept cursing me in the filthiest language he could [think of]." Other attempts were made.

In these circumstances, characterized by intermittent attempts and specific acts of penetration, the night was spent. At various times Bailey appeared to be sleeping, but when the prosecuting witness attempted to escape he would grab her. Shortly after daylight Bailey drove the girl home. She immediately reported to her mother and sister.

Physical examination by a physician whose qualifications were not questioned revealed bruises and scratches on the body of the prosecuting witness, whose sex organs were bleeding. The hymen was lacerated, indicating virginity just prior to the transaction charged in the information. The Doctor testified that "from all the information I could obtain, the female organs had been entered."

The essential facts have been set out because of the contention that the jury should have been charged on attempted rape. The defendant did not testify.

First -- Was the Jury Misled as to Clemency Rights? -- After deliberating for approximately fifteen minutes, the jury re-entered the court room and the foreman said: "We would like to know if we can recommend clemency in this and leave it up to the Court?" Judge Fulk replied: "It is the law that the jury may recommend clemency, but it is not the law that the Court has to grant it." The Foreman then said: "We wondered whether we might recommend it." Judge Fulk answered: "You have the power to make that recommendation, . . . but it is not binding on the Court, and I don't know how the Court would take it." Then the Foreman remarked, "All right, we understand."

Counsel for appellant argues that the jurors were "unquestionably" led to believe that they might hope for clemency, even with a finding of guilt. But the jury could have exercised its own discretion to make the recommendation it thought proper. It is just as logical to believe that the Court's answer did not carry an inference of possible lenience, hence the fact-finders avoided the death risk and assessed life imprisonment. This is mere speculation, devoid of factual support, as is appellant's theory that the jury was misinformed. The Court correctly stated the law. A defendant cannot predicate error upon the want of it.

Second -- Failure to Instruct on "Attempt" and Assault. -- In defining rape the jury was told that "There must be a penetration of the body; there must be force; and it must have been against the will of the female." To this instruction the Court added: "The burden of proof is upon the State to show these things to your satisfaction beyond a reasonable doubt, otherwise you would have to discharge the defendant."

Appellant insists he was entitled to his Requested Instructions 13 and 14, shown in the margin. ^[1] Conversely, appellee relies in part upon Whittaker v. State, 171 Ark. 762, 286 S.W. 937, where it was held that the defendant could not complain of an instruction that he should be convicted of rape or acquitted; the defendant having requested an instruction to the same effect; nor, says the opinion, was it error to give the instruction complained of when testimony by the prosecutrix tended to prove that the accused was guilty of rape, and the defendant's testimony was to the effect that he was innocent of any crime.

In the case at bar there was testimony of conduct constituting rape, and in addition there were repeated attempts. An assault with intent to commit rape is included in the charge of rape. Pratt v. State, 51 Ark. 167, 10 S.W. 233. Chief Justice Cockrill's language in the Pratt case was quoted in a more recent opinion rejecting the appellant's argument that he suffered prejudice because when tried for rape and convicted of an attempt, the jury was instructed on the lesser degree. It was the defendant's contention on appeal that he should have been convicted of rape, or acquitted.

Our statute defines rape as the carnal knowledge of a female, forcibly and against her will. Pope's Digest, § 3403, Ark. Stats. (1947), § 41-3401. Other statutes define accessory to rape, administration of potion to a female, carnal abuse, abduction, seduction, and specific sex crimes. All are collected in a chapter of the Digests.

It was said by Chief Justice Walker in Cameron v. State, 13 Ark. 712, that upon an indictment for a felony the accused may be convicted of a misdemeanor "where both offenses belong to the same generic class, where the commission of the higher may involve the commission of the lower offense and the indictment for the higher offense contains all the substantive allegations necessary to let in proof of the misdemeanor," although at common law the rule was different.

Assuming without deciding, that conviction for assault and battery can be upheld where the indictment or information charges rape, (the transactions not being generically related) still, the broad range of proof brought into play and the possibility of capricious conduct by fact-finders in reducing a serious charge to something relatively unimportant -- these considerations require that Courts carefully scrutinize instructions that might be seized upon by either side to emphasize inferences that at most are vague. Hence we have the rule that one who objects to an instruction not inherently wrong cannot complain of prejudice...