Bradshaw v. State
| Decision Date | 24 February 1947 |
| Docket Number | Criminal 4437 |
| Citation | 199 S.W.2d 747,211 Ark. 189 |
| Parties | Bradshaw v. State |
| Court | Arkansas Supreme Court |
Appeal from Carroll Circuit Court, Eastern District; Ted P. Coxey Judge.
Affirmed.
John W. Baxter, for appellant.
Guy E. Williams, Attorney General, and Arnold Adams, Assistant Attorney General, for appellee.
Ed. F McFaddin, Justice.
Appellant was charged with the crime of rape. He was convicted of assault with intent to rape; and brings this appeal. The motion for new trial contains nine assignments, which we group and discuss in convenient topic headings.
I. Sufficiency of the Evidence. This embraces assignments 1, 2 and 3. The defendant was an employee of a carnival company that was showing at Green Forest in Carroll county. He operated a concession known as a "spinning wheel," where prizes could be sought by the turning of a wheel and the stopping of an indicator at a selected number. On Saturday afternoon, July 27, 1946, the prosecuting witness -- a girl 21 years of age, but with the mentality of a nine-year-old child -- wandered from one concession to another. Several times she stopped at the defendant's concession, and he engaged her in conversation. About 5:30 p.m. defendant was seen sitting on a bench talking with the girl, and when she went towards the ladies' rest room, he was seen to follow her. This rest room was partially surrounded by trees and shrubbery, and was approximately fifty yards from the carnival concessions.
Some 30 minutes after the defendant was seen to follow the girl in the general direction of the rest room, the girl returned to the carnival, crying, and said "some old man" had choked her. This was about 6:00 p.m. The girl's mother was summoned, and then the girl told her of the act of rape. Suspicion was directed against the defendant; and a search for him revealed that a fellow-employee had informed the defendant that if he were guilty, he had better leave; and, coincidentally, that the defendant had packed his bag and boarded a bus for Fayetteville, where his family lived. He was arrested in that city when he alighted from the bus, and the next day was returned to Carroll county, and identified by the girl as the man who had choked and raped her. Several witnesses testified as to bruises on the girl's throat, indicating that she had been choked. A physician testified as to rupture of the hymen, etc. From the witness stand, the girl told about the defendant taking her over the fence, and choking her, and ravishing her forcibly and against her will. There was other evidence which we need not detail.
The defendant stoutly denied his guilt, and put his good character and war record in evidence. His military record is that of a hero; and it is a pity for such a splendid record to be sullied by this affair. The jury found the defendant guilty of assault with intent to rape. We conclude that the evidence was legally sufficient to sustain that verdict, or even the greater offense of rape. This conclusion disposes also of assignment 4 in the motion for new trial, in which appellant says that the verdict was the result of passion and prejudice. After examining the entire record, we think the jury's verdict reflected leniency, rather than passion and prejudice.
II. Rape, as Including also the Crime of Assault with Intent to Rape. Defendant argues that he was charged with and tried for rape; and that the circuit court erred in instructing the jury as to the crime of assault with intent to rape. This argument (based on assignment 5 in the motion for new trial) cannot be sustained. In Pratt v. State, 51 Ark. 167, 10 S.W. 233, Chief Justice Cockrill, speaking for this court, said:
The rule announced in Pratt v. State, supra, has been followed in subsequent cases, some of which are: Paxton v. State, 108 Ark. 316, 159 S.W. 396; and Sherman v. State, 170 Ark. 148, 279 S.W. 353; see, also, 52 C. J. 1124. Since, under the indictment for rape, it was permissible for the jury to convict the defendant of the crime of assault with intent to rape, it follows that the court was correct in instructing as to the lesser offense; and no complaint is made as to the wording of these instructions on this lesser offense.
III. Corroboration. The defendant insists that the testimony of the prosecuting witness was not corroborated, and that the court should have instructed the jury that corroboration was necessary. This is assignment 6 in the motion for new trial. The answer to this argument is two-fold. In the first place, in a rape case, the testimony of the prosecutrix does not have to be corroborated. This was definitely decided in Hodges v. State, 210 Ark. 672, 197 S.W.2d 52 (). See, also, 44 Am. Juris. 969, 52 C. J. 1099, and the annotation in 60 A. L. R. 1124. One of the essential elements of the crime of rape is that the act was committed forcibly and against the will of the prosecutrix. The existence of that essential prevents the prosecutrix from being an accomplice. See Hummel v. State, 210 Ark. 471, 196 S.W.2d 594.
The second and final answer to defendant's argument concerning corroboration is the fact that the testimony of the girl was corroborated. The bruises on her throat, her instant crying and complaint -- these, and other facts -- afforded corroboration, even though such corroboration was not legally necessary.
IV. Refusal to Give a Cautionary Instruction. In assignment 9 in the motion for new trial, defendant complains of the court's refusal to give defendant's requested instruction 1, which reads:
"I charge you that prejudice is liable to be aroused against the accused by reason of the heinousness of the crime of which he is accused, and, because of the difficulty of a defense against this crime and the ease with which it can be fastened on an innocent and reputable person, you should exercise the utmost discretion to avoid attaching undue weight to the uncorroborated accusations of the prosecuting witness."
In a prosecution for rape it is proper for the court to give a suitable cautionary instruction. See 52 C. J. 1123; 44 Am. Juris. 979; and the annotation in 130 A. L. R. 1489. The giving of such an instruction usually rests in the sound discretion of the trial court. The words of Mr. Justice Wood in Rayburn v. State, 69 Ark. 177, 63 S.W. 356, on cautionary instructions are worthy of repetition:
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