Black v. State

• Decision Date: 10 May 1971
• Docket Number: No. 5584,5584
• Citation: 250 Ark. 604,466 S.W.2d 463
• Parties: Farmer L. BLACK, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 463

466 S.W.2d 463

250 Ark. 604

Farmer L. BLACK, Appellant, v. STATE of Arkansas, Appellee.

No. 5584.

Supreme Court of Arkansas.

May 10, 1971.

Skillman & Furrow, West Memphis, for appellant.

Ray Thornton, Atty. Gen., John D. Bridgforth, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Farmer L. Black, appellant herein, was charged by the Prosecuting Attorney of the Second Judicial District with the separate offenses of kidnaping and Sodimy, it being alleged that these offenses were committed on March 3, 1970, in Crittenden County. On trial, Black was acquitted of the sodomy charge but was convicted of kidnaping under Ark.Stat.Ann. § 41--2302 (Repl.1964), and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of ten years. From the judgment so entered, appellant brings this appeal. For reversal, three points are asserted which we proceed to discuss, though not in the order listed by appellant.

It is first alleged that the court erred in permitting the prosecuting attorney to question Black relative to a charge of rape in Tennessee. The record reveals the following on cross-examination:

'Q. Were you guilty of homicide in 1958, in Memphis, Tennessee?

A. No, sir.

Q. Were you convicted of that charge?

A. No, sir.

Q. You were not? All right. Now, then, you say that you did not forcefully have sexual relations with Stephanie? (given name of the alleged victim in the present case) Is that correct? You did not put that gun to her stomach and tell her to strip her clothes off, you were going to make love to her?

A. I did not.

Q. You did not do that? You are guilty of having raped a twenty year old married woman on March 1, 1970, are you not, Mr. Black, in Memphis, Tennessee?

A. No sir, I am not guilty of that charge.'

It is appellant's contention that the last question was reversible error since that charge is only pending against Black, not yet having been tried. We do not agree, and have held contrary to this contention in several cases. It will be noted that the prosecutor did not ask Black if he had been indicted or charged with raping a woman in Memphis, but rather asked him if he were not guilty of that offense. We have held that one cannot be asked if he has been indicted, or charged, or accused, of other crimes, but for the purpose of testing credibility, one may be asked if he has been convicted of a particular offense, or if he was guilty of some particular offense. The state is bound by the answer that the witness gives. See Johnson v. State, 236 Ark. 917, 370 S.W.2d 610, and cases cited therein. See also the recent case of Hughes et al. v. State (Jan. 18, 1971), 249 Ark. ---, 461 S.W.2d 940.

It is also asserted that there was no corroboration of the testimony of the prosecuting witness relative to being kidnaped and the jury verdict was nothing more than speculation and conjecture. Again we disagree, actually for two reasons. In the first place, there was corroboration of the kidnaping. John Connors Donovan, who was traveling with the young woman allegedly assaulted, testified that the two, hitchhiking, were picked up by appellant on the highway; after driving for a few miles, appellant stopped the car, said that he had to check his tires, and then pulled out a rifle and pointed it at the witness. Donovan stated that Black then pointed the gun at the young woman, told her that he was in the mood for love, and that she was to take off her clothes. When this happened, she opened the door and ran down the highway; Black chased her, and Donovan started running the other way. He heard a woman screaming, started back toward the car, but heard the car door slam and the car 'took off'. Donovan then reported the matter and officers were notified. Subsequently, the officers located the car parked on a gravel road, the young woman jumping out of the automobile and running to the officers, and Black getting out after being ordered several times to do so, and after the officers had fired a warning shot. Black was completely nude except that he was wearing one sock. The woman had been severely beaten in the face. ¹ There was certainly corporation, but actually, the woman not being an accomplice, no corroboration was necessary. See Bradshaw v. State, 211 Ark. 189, 199 S.W.2d 747. Of course, if the prosecuting witness accompanied Black voluntarily, there simply was no kidnaping, but the jury heard the evidence of both the state and appellant, Black stating that she went with him of her own accord, and this conflict was a matter for jury determination.

Finally, it is argued that under the statute defining kidnaping, the acquittal of appellant on the charge of sodomy rendered it impossible as a matter of law for appellant to be guilty of the crime of kidnaping. We find no merit in this argument. The statute ² does not require that the defendant consummate the felonious act before being guilty of kidnaping; it only requires that the forcible stealing or taking of the victim be done for the purpose of committing a felony. And even when all the proof offered on behalf of the prosecution shows that the act was consummated, and the proof on the part of a defendant shows that the offense did not take place, it has been held that one can still properly be convicted of an attempt to commit the offense. In Lindsey v. State, 213 Ark. 136, 209 S.W.2d 462, the evidence on the part of the state reflected that the defendant was guilty of the crime of rape; on the other hand, the defendant denied that he acted improperly in any manner...