Cabe v. State
| Decision Date | 30 June 1930 |
| Docket Number | 75 |
| Parties | CABE v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, First Division; Abner McGehee Judge; affirmed.
Judgment affirmed.
Sam W Trimble and Dillon & Robinson, for appellant.
Hal L Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
Appellant was indicted for rape in the circuit court of Pulaski County, First Division, and upon the trial of the charge was convicted of the crime of carnal abuse, and was adjudged to serve a term of five years in the State penitentiary, as a punishment therefor, from which is this appeal.
Appellant first contends for the reversal of the judgment because the trial court overruled a demurrer to the indictment. It is argued that the indictment was fatally defective, because it did not allege that the act complained of by the State was an unlawful act. Section 2717, C. & M. Digest, defining rape, does not use the word "unlawful," therefore, it was not necessary to use same in an indictment for the crime. State v. Murphy, 43 Ark. 178.
Appellant next contends for the reversal of the judgment because the trial court ruled that jurors W. R. Crow and C. R. Croft were qualified. On their voir dire examination each stated that he had formed an opinion regarding the case, based upon rumor, but that he would disregard the opinion if chosen as a juror and try and decide the case upon the testimony which would be adduced, under the law as pronounced by the court. Under the rule reiterated in the case of Ham v. State, 179 Ark. 20, 13 S.W.2d 805, both were qualified, notwithstanding they had formed opinions based upon rumor.
The disqualification of C. R. Croft is also urged because he admitted that he was prejudiced against the crime of rape. All law-abiding citizens are prejudiced against crimes of this nature, and, were the rule contended for pronounced by this court, it would be next to impossible to find law-abiding veniremen to sit as jurors in such cases.
Appellant next contends for the reversal of the judgment because Chester Puller had formed and expressed an opinion which he had concealed on his voir dire examination. Affidavits of several parties were introduced to the effect that Puller was biased against appellant, as shown by expressions of his guilt in conversation with affiants and with others. These affidavits were contradicted by Puller, which presented a conflict in the evidence. The finding of the trial court, on conflicting evidence, that a juror was qualified, will not be disturbed on appeal. Pendergrass v. State, 157 Ark. 364, 248 S.W. 914.
Appellant next contends for the reversal of the judgment because there is no substantial evidence to support the verdict. The prosecutrix testified that she was under sixteen years of age, and that appellant had sexual intercourse with her in his apartment, forcibly and against her will. The law does not require the evidence of the prosecutrix to be corroborated in order to convict for the crime of carnal abuse. It is argued, however, that the testimony of the prosecutrix is wholly discredited by expert testimony to the effect that it was impossible for a normally developed man to penetrate her person. The slightest penetration was sufficient in law, and it cannot be said from the physical facts in the instant case that there was no penetration at all. Dr. W. E. Gray testified that he made an examination of the prosecutrix when brought to the hospital shortly after the alleged crime was committed, and that, although he found no external or internal laceration, tears or bruises, he found a drop or two of blood and discovered in the vaginal canal abundance of spermatozoa. According to the State's witnesses, appellant admitted having had sexual intercourse with the prosecutrix, but claimed that she told him that she was eighteen years of age and consented to the act. He denied that he made such admissions.
Although the prosecutrix was contradicted to some extent by appellant and his witnesses, it cannot be said that the testimony introduced by the State was wholly and entirely discredited. The judgment is supported by evidence of a substantial nature.
Appellant next contends for the reversal of the judgment...
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