Braswell v. State

• Decision Date: 22 February 1926
• Docket Number: (No. 191.)
• Citation: 280 S.W. 367
• Parties: BRASWELL v. STATE.
• Court: Arkansas Supreme Court

280 S.W. 367

BRASWELL v. STATE.

(No. 191.)

Supreme Court of Arkansas.

February 22, 1926.

Appeal from Circuit Court, Union County; L. S. Britt, Judge.

John D. Braswell was convicted of assault with intent to rape, and he appeals. Affirmed.

Powell, Smead & Knox, of El Dorado, for appellant.

H. W. Applegate, Atty. Gen., and Jno. L. Carter and Darden Moose, Asst. Attys. Gen., for the State.

SMITH, J.

Appellant was indicted for having assaulted Lona Mae Carder, a female, with the intent to rape her, and upon his trial was convicted and given a sentence of 5 years in the penitentiary, and has appealed.

The chief insistence for the reversal of the judgment is that the testimony is insufficient to support the verdict, in that it was not shown that appellant intended to have sexual intercourse with the female named in the indictment forcibly and against her will.

The prosecutrix testified: That she was born February 3, 1909, and was 15 years old in December, 1924, at which time she was employed as an assistant to her sister, who was the telephone operator at Calion. That she wished to go to El Dorado to change a dress, and appellant, who was in Calion, offered to drive her over there. A man named Murphy was in the car with appellant, and the older sister of the prosecutrix consented for her to accept the invitation, and she was driven by appellant in his car to El Dorado. When they arrived in El Dorado, Murphy left the car, and appellant stated he would drive witness to the store where the dress could be changed. When witness discovered that appellant was not driving towards the store, she asked where he was going, and he answered that he thought he would first drive around the city. He kept driving, and said he would show her the new hospital and the homes in that neighborhood. They drove on until they left the paved roads, and witness asked appellant to take her back to El Dorado, but he kept on driving and talking, and told witness he did not have to return to El Dorado until 4 o'clock in the afternoon. Appellant finally came to a small road, into which he turned, and then he left this road and drove into the woods about 200 yards to a point where a hill on one side and some shrubbery on the other hid the car from view. Appellant then told witness that he was going to have sexual intercourse with her. Appellant first attempted to pull witness out of the car, and then to put her over on the rear seat. Failing in this, he undertook to have sexual intercourse in the front seat, and he continued this effort for a period of about two hours. During all this time witness protested and begged appellant to leave her alone and to carry her back to El Dorado, but appellant declared his intention to have sexual intercourse with her before he would carry her back to the city. His hands were all over her. He drew her dress up, got between her legs, unbuttoned his trousers, got down on his knees, and tried to have sexual intercourse with her, but without success. She screamed and cried and begged, but he would not desist. Appellant tried to stop witness from screaming by placing his hand over her mouth. He finally told her to scream as much and as loud as she pleased, as no one could hear her. He then told her if she did not stop screaming he would tear her to pieces, but she continued to scream and to resist appellant's efforts. Finally they heard some one knocking at an oil well, but appellant said there was no one at the well, but he finally desisted after struggling with witness for two hours or more, and drove her back to El Dorado. Witness was badly bruised, and was very sore for a period of three weeks.

Appellant testified: That he was a married man, and the father of three children, one a baby born between the time of the alleged assault and his trial. That he frequently saw the prosecutrix at Calion, and she complained that the town was too slow for her, that she wanted to go where she could have some fun. Appellant asked her what kind of fun, and the prosecutrix said where there was a man and some whisky, and appellant said he could and would give witness a party of that kind, and he drove her from Calion to El Dorado, with the understanding that they would have a party. He admitted driving her out into the woods, but testified that he did that for privacy, but after getting there she declined to permit him to have sexual intercourse with her. When appellant stopped the car in the woods, he said, "This looks like a dandy place," and the prosecutrix asked, "For what?" and he answered, "For the party we were going to have." The prosecutrix declined to get out of the car, when he said, "Well, we will be a little cramped in here, having a party in a Ford sedan." When the prosecutrix stated there would be no party, he admitted that he said to her, "You mean to tell me that you drove way out here, 15 or 16 miles, with me for nothing at all," and she answered, "I just come to see about the dress." Appellant further admitted that he then began to hug and kiss the prosecutrix, that he pulled up her dress and placed his hands on her privates, and, when the prosecutrix began to scream, he told her to scream, that no one could hear her, and she continued to scream until he thought she was going to have a fit, but when...