Begley v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HART, C. J.
• Citation: Begley v. State, 21 S.W.2d 172, 180 Ark. 267 (Ark. 1929)
• Decision Date: 04 November 1929
• Docket Number: 169
• Parties: BEGLEY v. STATE

21 S.W.2d 172

180 Ark. 267

BEGLEY v. STATE

No. 169

Supreme Court of Arkansas

November 4, 1929

Appeal from Pope Circuit Court; J. T. Bullock, Judge; affirmed.

Judgment affirmed.

John G. Rye and Robert Bailey, for appellant.

Hal L. Norwood, Attorney General, and Robert F Smith, Assistant, for appellee.

OPINION

HART, C. J.

Cecil Begley prosecutes this appeal to reverse a judgment of conviction against him for assault with intent to rape.

It is first earnestly insisted that the evidence is not legally sufficient to support the verdict. While the defendant took the stand in his own behalf and expressly denied that he had attempted to have intercourse with the prosecuting witness against her consent, and while he was corroborated in this respect by a male companion who was with him, yet, in testing the legal sufficiency of the evidence to support the verdict we must view the evidence for the State in the light most favorable to it; and, if that evidence is legally sufficient to support the verdict, we cannot disturb it on appeal. The reason is that the jury are the judges of the credibility of the witnesses, and have decided that question in favor of the State by returning a verdict of guilty. Hence we need only to refer to the evidence adduced in favor of the State.

Before doing this we will briefly state the principles of law governing cases of this sort, which have been repeatedly announced by this court. In order to warrant a conviction of assault with intent to rape, it must appear not only that defendant intended to have carnal knowledge of the girl alleged to have been assaulted, forcibly and against her will, but that he did some overt act towards the accomplishment of his purpose, which amounted in law to an assault upon her. An assault usually implies force by the assailant and resistance by the assailed. It is not necessary in such cases that the attempt by the assailant be persisted in to the utmost, but it is sufficient that it was actually begun, without reference to the reason which causes the assailant to desist. Anderson v. State, 77 Ark. 37, 90 S.W. 846; Tyra v. State, 120 Ark. 179, 179 S.W. 167; Lockett v. State, 136 Ark. 473, 207 S.W. 55; and Snetzer v. State, 170 Ark. 175, 279 S.W. 9. In Paxton v. State, 108 Ark. 316, 157 S.W. 396, the court again said that subsequent yielding and consent does not mitigate or justify an assault with intent to commit rape.

Tested by this well-settled rule of law, we are of the opinion that the evidence is legally sufficient to support the verdict. According to the testimony of the prosecuting witness, she was sixteen years of age, and lived in Russellville Arkansas, at the time of the alleged assault. She had only lived in Russellville for about three months, and prior to that time had lived in the country, in the northern part of the county. She first met the defendant, Cecil Begley, at her home, and had gone with him five or six times before the time of the alleged assault. She went to a show with him one night, and he made improper proposals to her, which she rejected. She had never met Jewell Lewis before, and did not know whether he was married or single. Appellant, in a car belonging to Jewell Lewis, came to her house late one evening in May, 1929, and made a date to take her riding. They claimed that they were going to get another girl to go with them, but failed to do so. They drove south from Russellville on the public highway. Lewis drove the car, and the defendant and prosecuting witness sat on the back seat. After they got out into the country, Lewis stopped the car, and asked the defendant if he wanted to get out while he went on and turned the car around. Defendant then took hold of the prosecuting witness, and pulled her out of the car. He carried her to some bushes near the road, and attempted to forcibly have intercourse with her. She struggled, and finally got up. The defendant then struck her on the breast and knocked her down. He told her that he intended to have intercourse with her. He pulled her underclothes down, and got on top of her and attempted to have intercourse with her. She screamed, and pulled his hair, and he finally let her up. It is true that her testimony was considerably weakened on cross-examination, and that there were some inconsistencies in her testimony. She however adhered to the main fact under investigation, and that was that the defendant had actually attempted to have intercourse with her, forcibly and against her will, and that she had resisted him as much as she was able to. The jury may have thought that the inconsistencies in her testimony resulted from her youth, inexperience and ignorance, and they had a right to take into consideration all the attendant facts, and give her testimony such credence as they believed it entitled to. Lockett v. State, 136 Ark. 473, 207 S.W. 55; Brock v. State, 168 Ark. 302, 270 S.W. 98; Lewis v. State, 168 Ark. 590, 271 S.W. 708; Franks v. State, 168 Ark....