84 S.W. 718 (Ark. 1905), Hammons v. State

Citation:84 S.W. 718, 73 Ark. 495
Opinion Judge:HILL, C. J.
Party Name:HAMMONS v. STATE
Attorney:W. P. Strait, for appellant. George W. Murphy, Attorney General, for appellee.
Judge Panel:HILL, C. J. MCCULLOCH, J. MCCULLOCH MCCULLOCH, J. (dissenting). I am authorized to say that Mr. Justice BATTLE concurs in these views.
Case Date:January 07, 1905
Court:Supreme Court of Arkansas
 
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Page 718

84 S.W. 718 (Ark. 1905)

73 Ark. 495

HAMMONS

v.

STATE

Supreme Court of Arkansas

January 7, 1905

Appeal from Conway Circuit Court WILLIAM L. MOOSE, Judge.

Affirmed.

Judgment affirmed.

W. P. Strait, for appellant.

1. The letter was a privileged communication between husband and wife, and it was error to admit it. 70 Ark. 204. See 13 Ark. 295; 21 Id. 77; 27 Id. 493; 26 L. R. A. 864; 2 Id. 615 (note); 121 Mass. 137; 117 Id. 90; 2 Allen, 558; 8 Cent. Rep. 150; 116 Pa. 109; 113 Mass. 157; 32 F. 368; 5 N.E. 268; 1 Bailey L. 568.

2. If under twelve years, the presumption is that the girl was not capable of consenting; but if over ten, this presumption may be overcome by proof, and the court should have so told the jury. 50 Ark. 330; 17 Oh. St. 522; 11 Ark. 389. The court used the words "against her consent." Sandels & Hill's Digest, section 1862, uses the words "against her will." 8 Ark. 400; 11 Id. 389; Bish. Cr. Law, 7th Ed., Vol. 2, p. 627.

3. Force is an essential element of rape. This element is wanting. 32 Ark. 704; 29 Id. 116; 11 Id. 389; 53 Id. 425.

George W. Murphy, Attorney General, for appellee.

There was no error in the court's instructions. Regardless of the age of the prosecutrix, the presumption is that, if done without consent, it was done against her will; and there is nothing in the distinction which appellant attempts to draw between cases where the act is done against the will of the prosecutrix and where it is done merely without consent. 1 McClain, Cr. Law. §§ 438, 440, 441; 53 Ark. 425. There was no error in the admission in evidence of the letter delivered by appellant to Brown. 45 Ind. 366; 2 Ind.App. 183; 131 Mass. 31; 110 Mass. 181; 98 Pa.St. 501; 46 N.E. 31; 91 Am., Dec. 291; 35 Vt. 378; 20 Kan. 599; 15 L. R. A. 268, and note.

HILL, C. J. MCCULLOCH, J.

OPINION

[73 Ark. 496] HILL, C. J.

The appellant was indicted for the crime of rape committed on his step-daughter, a child of eleven years of age. He

Page 719

was convicted, and sentenced to the death penalty, and obtained an appeal to this court.

The alleged errors will be considered in the order presented.

1. The indictment was sufficient. [*] The form thereof was approved in Downs v. State, 60 Ark. 521, 31 S.W. 149, and the demurrer thereto was properly overruled.

2. The evidence amply sustains the verdict. The testimony of the child was direct and positive, and strongly corroborated. The defense attempted to prove that the child had knowledge of sexual intercourse, consented to it, and in fact was the soliciting party. The purpose of this evidence was to overcome the presumption of want of capacity to consent, and to prove an appreciative consent; thereby to reduce the crime to carnal abuse. The evidence of the physician, who examined the child, of her immaturity and injury inflicted by the sexual act, rendered this defense, which was supported alone [73 Ark. 497] by the defendant's oath, incredible. There was also evidence on the part of the defendant that the child was over twelve. The trial court fully charged the jury as to the law governing if the child was over twelve, and no exceptions are taken to that part of it. The evidence was conclusive, however, that the child was under twelve. That offered by the State, part of that by the defendant, and the record of the marriage of her parents, place this question beyond reasonable doubt. The State's evidence, if true (and it comes here accredited by a jury who heard and saw this child, and who believed her), establishes that this crime was cruelly committed, and by the one person to whom the child had a right to look for protection, not ruin--her mother's husband.

3. The objection to the testimony of the...

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