Bethel & Wallace v. State

• Decision Date: 05 November 1928
• Docket Number: 240
• Citation: 10 S.W.2d 370,178 Ark. 277
• Parties: BETHEL AND WALLACE v. STATE
• Court: Arkansas Supreme Court

10 S.W.2d 370

178 Ark. 277

BETHEL AND WALLACE v. STATE

No. 240

Supreme Court of Arkansas

November 5, 1928

Appeal from Mississippi Circuit Court, Chickasawba District; G. E Keck, Judge; reversed.

Judgments reversed and cause remanded.

O H. Hurst and E. E. Alexander, for appellant.

H. W. Applegate, Attorney General, and John L Carter, Assistant, for appellee.

MCHANEY J. Mr. Justice SMITH dissents.

OPINION

MCHANEY, J.

Appellants were separately indicted, jointly tried by consent, on a charge of rape committed on the person of Mrs. Pearl Jordan, on Sunday evening, April 1, 1928, were convicted, and sentenced to death by electrocution.

Only two questions are presented for our consideration and determination, as follows:

1. That the court erred in permitting Dr. McCall to testify for the State, over the objections and exceptions of appellants, that on Monday, the day after the crime is said to have been committed on Sunday night, at the request of the sheriff's office he made a physical examination of both defendants, and found Bethel afflicted with acute gonorrhea and Wallace with chronic gonorrhea.

2. That the court erred in permitting the State to prove, over the objection and exception of appellants, the good reputation of the prosecutrix for virtue and chastity.

1. Discussing these assignments of error in this order, we find as to the first point, when objection was made to Dr. McCall's testimony, the court ruled as follows: "It is proper for the State to show any circumstances connected with the alleged offense; the condition of the defendants at the time, together with everything else that was connected with the commission of the alleged offenses. The evidence is competent to show, if the State can, that, at the time of the alleged offense, they were suffering with a venereal disease, if they were."

In support of the ruling of the court the State's attorney cites the case of People v. Glover, 71 Mich. 303, 38 N.W. 874. But in that case statutory rape was charged, the prosecutrix being only eleven years of age, and the physician, who testified that the defendant, a short time after the commission of the offense, was suffering with gonorrhea, made the examination at the suggestion of the prosecuting attorney, because it had developed that his child victim was suffering with the same disease a short time after the offense was alleged to have been committed. The only evidence of sexual relations with her was her testimony, the defendant denying the same.

The case of State v. Mills, 45 S.D. 633, 189 N.W. 941, is also cited in support of the admissibility of this testimony. On the original hearing appellant's conviction was affirmed, but on rehearing, 45 S.D. 439, 188 N.W. 49, it was reversed, because the trial court had refused to permit appellant's witness, a physician, to testify as to whether, in his opinion, the appellant had gonorrhea at the time he was examined by the witness for the purpose of ascertaining that fact. This was evidence offered by the appellant, and not by the State. This was another case of statutory rape. We think these cases have no bearing upon the subject here under investigation, as the crime charged is not statutory rape, and the identity of the accused is not in question. They freely admitted the sexual intercourse declared by the prosecutrix, but denied that it was done by force and violence, and asserted that it was with her full consent.

Mr. Jones, in his commentaries on the law of evidence, vol. 3, § 1391, states the rule as follows:

"The principle is firmly ingrafted upon our Federal and State Constitutions that no accused person shall be compelled to give evidence against himself in any criminal case. But there is a line of authorities which hold that, in a criminal action, the accused may be compelled to furnish evidence by being compelled to submit in some degree to the inspection of his person for the purpose of ascertaining identity. Thus, a defendant has been compelled to exhibit his bare arm to the jury to ascertain whether certain tattoo marks, concerning which testimony had been given, existed. In other cases accused persons have been compelled by officers to submit to such experiments as having the foot placed in tracks to which the testimony related, or to other similar experiments; and the officers or other persons have, under such circumstances, been allowed to state the result. These cases proceed on the view that the constitutional provision to the effect that no person shall be compelled in a criminal case to be a witness against himself is to be construed merely to mean that the defendant cannot be compelled, in the strict meaning of the term, to 'testify' against himself. A far more liberal and, in the opinion of the author, a better construction has been placed upon the constitutional provision in other cases where this class of testimony has been rejected on the ground that the court could not compel a witness to furnish evidence against himself. But, even under such authorities, the right of the accused to refuse to submit to such an inspection is waived when he voluntarily furnishes such evidence, in the same manner that he waives his constitutional privilege when he voluntarily gives testimony that may criminate himself."

In a case quite similar to this one, State v. Horton, 247 Mo. 657, 153 S.W. 1051, except that it was a charge of statutory rape committed by a colored school teacher in Kansas City on one of his pupils, eleven years of age, the court said:

"Defendant insists that the physicians who examined him while he was in custody should not have been allowed to testify to the fact that he was suffering from a venereal disease. To meet this insistence, the State contends that the examination complained of was made with defendant's consent. We have read the record carefully, and find that the 'consent' consisted of the failure of defendant to object to the physical examination. When a man is under arrest, without counsel, and, speaking metaphorically, is standing in the shadow of a policeman's club, it requires something much more substantial than silence to justify...