Bridger v. State

• Decision Date: 07 February 1916
• Docket Number: 168
• Parties: BRIDGER v. STATE
• Court: Arkansas Supreme Court

183 S.W. 962

122 Ark. 391

BRIDGER v. STATE

No. 168

Supreme Court of Arkansas

February 7, 1916

Appeal from Arkansas Circuit Court, Southern District; Thomas C Trimble, Judge; affirmed.

Judgment affirmed.

C. L O'Daniel, R. D. Rasco and Manning, Emerson & Morris, for appellant.

1. There is a fatal variance between the indictment and proof. 6 Ark. 165; 6 Id. 540.

2. The remarks of the court were prejudicial. 51 Ark. 147; 17 Cal 146; 73 Ark. 568-573.

3. There were errors in admitting evidence and allowing leading questions. Kirby's Digest, § 3136. One crime cannot be proven by allowing evidence of another. 39 Ark. 278; 37 Id. 261; 73 Id. 262; 68 Id. 577; 111 Id. 457; 100 Id 321; 91 Id. 555; 38 Id. 221.

4. There was error in the court's charge to the jury. 83 Ark. 192, 195; 67 Id. 416.

5. It was error to permit part of the jurors to deliberate upon their verdict while the others were on the street unaccompanied by an officer. Kirby's Digest, § 2393; 44 Ark. 115; 57 Id. 1; 95 Id. 430; 102 Id. 356. A fair and impartial trial was not granted appellant, The court's remarks were prejudicial.

Wallace Davis, Attorney General and Hamilton Moses, Assistant, for appellee.

1. The variance was not fatal. 6 Ark. 540; Id. 165; Kirby's Digest, § 2332; 35 Ark. 385; 101 Id. 59; 105 Id. 84.

2. The remarks of the court were not prejudicial. 73 Ark. 573; 72 S.W. 918; 83 Id. 384; 71 Id. 70; 83 P. 490.

3. There was no error in the admission of evidence. Kirby's Digest, § 3136. Lead pencil interlineations upon a transcript which are unexplained and unauthenticated will not be regarded as part of the transcript. 84 Ark. 95; 86 Id. 360; 85 Ark 496. It is within the discretion of the court to allow a party to ask his own witness leading questions. 83 Ark. 100; 85 Id. 496; 63 Id. 120; 75 Id. 144; Wigmore on Ev. § 770.

4. There is no error in the instructions. The charge states the law correctly. 91 Ark. 562; 82 Id. 540; 38 Id. 304; 66 Id. 494; 34 Id. 649; 35 Id. 585; 58 Id. 472; 41 Ga. 217; 90 P. 259; 18 Ga. 13; 99 Ark. 561.

5. There were no irregularities in the trial. 95 Ark. 321; 107 Id. 38; 109 Id. 479. Appellant had a fair and impartial trial. None of the so-called irregularities were prejudicial.

OPINION

SMITH, J.

Appellant was convicted upon a charge of assault with intent to commit rape, and has appealed from the judgment of the court sentencing him to a term of three years in the state penitentiary.

At the trial a great many instructions were given, to a number of which exceptions were saved, and a large number of instructions were asked by the appellant, many of which were given, while exceptions were duly saved to the refusal of the court to give others which were requested. Upon a consideration of all the instructions given we are of the opinion that the law of this case was fairly and fully presented to the jury.

The evidence of the girl alleged to have been assaulted is sufficient to sustain the conviction, while according to the evidence offered in behalf of appellant the charge was wholly unfounded, and with the exception of a few, somewhat incriminating circumstances, the State's case rests entirely upon the evidence of the girl. The girl's name was Cleon Eason and, according to the State's evidence, she was a child only 13 years of age, while according to the evidence offered by appellant she was a girl 15 years of age. She is an orphan and had been taken to live at the home of appellant, who is a married man, and according to her evidence she had been importuned by appellant to yield to him and upon her continued refusal, had finally been assaulted. Shortly after the time of the commission of the alleged assault Cleon left appellant's home and was placed in school, and three of her girl school mates were permitted to testify in regard to her conduct at school and, according to the evidence of these school mates, Cleon appeared morose and was frequently seen crying, and remarked that she wished she was dead and that she was sorry she was living, and in this connection stated to one of her school mates that appellant had attempted to hug and kiss her, and to another that he had been mean to her. The purpose and effect of all this evidence was to corroborate the girl, and all of this evidence was offered over the objection of appellant. Three practicing physicians examined the girl shortly after the time of the alleged assault and one of these doctors testified that he found evidence of laceration and a partial rupture of the hymen, while the other two doctors testified that they found no bruises or other evidence of attempted intercourse and at the trial one of these doctors was used to impeach the doctor who testified for the State. This witness, Doctor Kelly, was twice called as a witness for the prosecution, and was cross-examined at length, and he was also called as a witness by appellant. Doctor Rasco, who testified for the appellant, stated that Dr. Kelly, after he had examined the girl, told him that no man had had anything to do with her, and after the examination of both of these witnesses appellant offered to prove by Dr. Rasco that Dr. Kelly told him that the girl's parts were not lacerated at all, but the court refused to let the witness be called for this purpose and exceptions were duly saved.

Appellant was indicted under the name of R. C. Bridgen, but the undisputed evidence shows that his name was Bridger, and appellant objected to the testimony tending to show his guilt of the crime charged, upon the ground that there was a variance between the indictment and the proof.

Exceptions were also saved to the remarks of the court in passing upon the admissibility of certain evidence tending to show that this prosecution was instituted in aid of an action for damages which had been brought against appellant. The remark of the court was argumentative and, therefore, improper, but we do not agree with counsel that the language used by the court could have been construed by the jury as expressing an opinion upon the issue involved and we will not therefore, reverse the judgment on that account.

We think the court should not have admitted the evidence of Cleon Eason's school mates. The incidents testified to by them occurred some days after the alleged assault, and while its purpose, of course, was to corroborate the girl in her statement that she had been assaulted, the evidence was not admissible for that purpose. Several of our cases define the conditions under which proof of outcry can be made, but those cases have no application to the facts of this case, and we are not advised of any theory upon which this evidence could be held competent. Threet v. State, 110 Ark. 152, 161 S.W. 139; Sexton v. State, 91 Ark. 589, 121 S.W. 1075; Skaggs v. State, 88 Ark. 62, 113 S.W. 346; Williams v. State, 66 Ark. 264, 50 S.W. 517; Pleasant v. State, 15 Ark. 624.

Certain of the questions which elicited this evidence were objected to as leading, but that objection did not call the court's attention to their real vice, and no other...