Anderson v. State

• Decision Date: 04 November 1905
• Citation: 90 S.W. 846,77 Ark. 37
• Parties: ANDERSON v. STATE
• Court: Arkansas Supreme Court

90 S.W. 846

77 Ark. 37

ANDERSON v. STATE

Supreme Court of Arkansas

November 4, 1905

Appeal from Miller Circuit Court; JOEL D. CONWAY, Judge; reversed.

Frank S. Quinn, for appellant.

To sustain the charge of assault with intent to rape, it is necessary to prove such acts as show an intent to obtain carnal knowledge of the female forcibly and against her will. 8 Ark. 400; 11 Ark. 390; 13 Ark. 360; 29 Ark. 116; 32 Ark 702; 63 Ark. 470.

Robert L. Rogers, Attorney General, for appellee.

The assault is not denied, and the jury have passed upon the intent. The fact that defendant, after forming the intent and making the assault, abandoned his purpose of his own accord is no defense. 86 Va. 382; 43 Neb. 30; 67 Ga. 349.

BATTLE J. RIDDICK, J., dissents.

OPINION

BATTLE, J.

A little girl about ten years old, named Pearl Bond, left her home at Judsonia, in this State, in April, 1905, to visit relatives at Weatherford, Texas. She was placed in care of the conductor of the train on which she took passage. At Texarkana, Ark., she changed cars. When she arrived there the conductor placed her in charge of one of the employees of the railroad company, with instructions to put her on the next train for Weatherford, Texas. While waiting for that train, she went to sleep. When she woke, Charles Anderson was sitting by her side. She says: "He asked me my name, and where I was going, and said he was going on the same train that the conductor had told him to take care of me, and put me on the right train. Then he got up, and looked out of the door, and said that the train was coming, "Come on," and he took me around the depot, saying that he had ten dollars for me. After he got to the alley, he said he had a present for me, and tried to get me to go up to see some little children. He kissed me, and tried to pull me into the alley. I was afraid. I commenced crying, and he said the bad man would get me if I cried. I told him I wanted to go back to the depot to get a drink, and he said he would get me any kind of a drink I wanted. He turned me loose, and I ran back to the depot. He told me to go back to the depot, that he would see me later."

Upon these facts the grand jury of Miller County indicted Anderson for an assault upon Pearl Bond with intent to rape her; and upon testimony to the same effect he was convicted. Was he guilty?

There is a contrariety of opinion as to what is necessary to constitute an assault at common law. Mr. Bishop says: "An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being; as raising a cane to strike him; pointing in a threatening manner a loaded gun at him: and the like." 2 Bishop's New Criminal Law, § 23. In speaking of an attempt to commit a particular crime, after treating of the intent necessary to constitute such an attempt a crime, he says: "Keeping fast to the anchorage-ground of the last sub-title, that the intent must be specific to do the whole of what constitutes the substantive crime, the doctrine here is that the act must be sufficient in magnitude and in proximity to such crime for the law, that does not regard things trifling and small, to notice, and of such seeming aptitude as is calculated to create an apprehended danger of its commission. But it is never necessary that the danger should be real." 1 Bishop's New Criminal Law, § 737. This is a reiteration of what he says of the act necessary to constitute an assault. Of course, acts necessary to constitute an assault are necessary to constitute an assault to commit a particular crime. Some courts do not sustain this view, but we hold that, to constitute an assault, the accused "must have intended and have had the power to carry his menace into effect." Pratt v. State, 49 Ark. 179, 182, 4 S.W. 785, and cases cited.

Our statutes have settled the question in this State. They say "An assault is an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another."...