Bender v. State
| Decision Date | 02 June 1941 |
| Docket Number | 4210 |
| Parties | BENDER v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Polk Circuit Court; Minor W. Milwee, Judge; affirmed.
Judgment affirmed.
J F. Quillin, Byron Goodson and M. M. Martin, for appellant.
Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.
Appellant was indicted, tried, and convicted of the crime of carnal abuse in the circuit court of Polk county of having sexual intercourse with Bonnie James, a female person, when she was under the age of sixteen years, resulting in a verdict and judgment incarcerating him in the state penitentiary for one year as a punishment for the crime, from which is this appeal.
The indictment charged that the crime was committed on September 14, 1939.
At the beginning of the trial the prosecuting attorney, in making his opening statement to the jury, stated that he would not rely upon the act of sexual intercourse alleged in the indictment as having occurred on September 14, 1939, but would make proof of other acts of sexual intercourse within the period of limitation, whereupon attorneys for the appellant made the following motion:
"The prosecuting attorney, in his opening statement having stated that the prosecution will not rely upon the act of the intercourse as alleged in the indictment to have taken place on September 14, but will attempt to prove other acts of intercourse within the period of limitation, the defendant before making opening statement to the jury, moves the court to require the state to elect upon which offense it will rely."
Appellant first contends for a reversal of the judgment on the ground that the state failed to prove that the act of sexual intercourse occurred in Polk county. The prosecutrix testified that on Sunday night, September 3, 1939, appellant had sexual intercourse with her between the towns of DeQueen and Wickes, and that the following week he had sexual intercourse at Wickes, where they are building a new school house. This testimony means that the act of sexual intercourse occurred at the new school house being built at Wickes. Wickes is a village about eight miles from the county line in Polk county of which location this court takes judicial knowledge. The evidence is, therefore, sufficient to show that the offense occurred in Polk county under authority of the cases of Forehand v. State, 53 Ark. 46, 13 S.W. 728; Scott v. State, 75 Ark. 142, 86 S.W. 1004; Guerin v. State, 150 Ark. 295, 234 S.W. 26; Harris v. State, 186 Ark. 10, 52 S.W.2d 631; and Meador v. State, 201 Ark. 1083, 148 S.W.2d 653.
Appellant also contends for a reversal of the judgment on the ground that the trial court erred in refusing to require the state to elect which particular act of sexual intercourse it would rely upon after the prosecuting attorney announced in his opening statement that he would not rely upon the act of sexual intercourse alleged in the...
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...Jones on Evidence (6th Ed.) 105, § 2.36. This court takes judicial notice of the distance of towns from the county line. Bender v. State, 202 Ark. 606, 151 S.W.2d 668. We also take judicial notice of the map of the state and of distances between places. Van Dalsen v. Inman, 238 Ark. 237, 37......
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