219 S.W.2d 424 (Ark. 1949), 4553, Bailey v. State

Docket Nº:4553
Citation:219 S.W.2d 424, 215 Ark. 53
Opinion Judge:Griffin Smith, Chief Justice.
Party Name:Bailey v. State
Attorney:Ross Robley and Elmer Schoggen, for appellant. Ike Murry, Attorney General and Arnold Adams, Assistant Attorney General, for appellee.
Case Date:April 11, 1949
Court:Supreme Court of Arkansas
 
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Page 424

219 S.W.2d 424 (Ark. 1949)

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

[215 Ark. 54] 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.

Page 425

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 [215 Ark. 55] 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 [215 Ark. 56] 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...

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