Clark v. State, 5290

• Decision Date: 06 May 1968
• Docket Number: No. 5290,5290
• Citation: Clark v. State, 427 S.W.2d 172, 244 Ark. 772 (Ark. 1968)
• Parties: Sammy CLARK, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 172

427 S.W.2d 172

244 Ark. 772

Sammy CLARK, Appellant, v. STATE of Arkansas, Appellee.

No. 5290.

Supreme Court of Arkansas.

May 6, 1968.

E. V. Trimble and Charles E. Scales, Little Rock, for appellant.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Sammy Clark, appellant herein, was charged with the rape of a nine-year-old girl, and on trial, was found guilty, and his punishment fixed at imprisonment in the State Penitentiary for life. From the judgment so entered, Clark brings this appeal. For reversal, only one point is argued, viz., the court erred in failing to grant a mistrial on the motion of appellant when the state offered to call appellant's wife to testify during the presentation of the state's evidence. However, the motion for new trial also asserts that error was committed by the court in failing to give three requested instructions by appellant, and it is also alleged that the verdict was contrary to the law and evidence. We proceed to a discussion of these contentions, but in reverse order.

The state's evidence reflected that Clark requested a friend to drive him to the home of Anna Marsenburg for the purpose of picking up his stepchildren. This was done, and Clark got his stepdaughter, a child then nine years of age, who lived with her grandmother. Anna Marsenburg. together with her sisters, and the friend drove them to the home where Clark lived with the children's mother, to whom he was married. On arriving at the house, Clark told the sisters to go outside, but directed the little nine-year-old girl to stay inside. He then asked her to take her clothes off, but upon her refusal, appellant took them off. He then took his own clothes off, and, according to the witness, choked her, and raped her. ¹ The little girl stated that she tried to push him off, and tried to get away, and that he hurt her; further, that she did not tell anybody, because she was afraid he would kill her.

The grandmother testified that she found her granddaughter's bloody panties on a Tuesday (the alleged rape having occurred on the previous Sunday); that she questioned and examined the little girl, and observed that she was swollen and bleeding. A subsequent examination was made by a physician, Dr. Bill Floyd.

Dr. Floyd testified that the hymen had been ruptured and torn; that the child's condition had originated probably from one to four days earlier, and that, in his opinion, a forceful penetration was the cause of the injury.

Clark admitted getting the children from the grandmother's house, and taking them to his house, but he denied that he bothered the girl in any way. The evidence obviously, if believed by the jury, was more than ample to sustain the conviction.

It is asserted that the court erred in refusing to give an instruction, at appellant's request, on assault with intent to rape. We do not agree. The evidence on the part of the state was that the act of intercourse was forcibly committed, and the evidence on the part of the defendant was simply that he did not molest the little girl in any way. It was not error to refuse the instruction. Whittaker v. State, 171 Ark. 762, 286 S.W. 937.

We think, however, that appellant's requested instruction No. 1 should have been given. This was an instruction defining the offense of carnal abuse, the instruction telling the jury that, if there was reasonable doubt that Clark was guilty of rape, he could still be found guilty of the crime of carnal abuse. The difference in the two offenses is that rape is the carnal knowledge of a female, forcibly and against her will (or without her consent), while carnal abuse is the carnal knowledge of a female under the age of sixteen years. It is immaterial in the latter case whether consent is given or not. While the little girl testified as to acts constituting rape, the jury could possible have found, since she did not report it, that she consented. The offense of carnal abuse is included in a charge of rape where the female is under sixteen years of age. Warford and Clift v. State, 214 Ark. 423, 216 S.W.2d 781, 8 A.L.R.2d 996. See also Willis v. State, 221 Ark. 162, 252 S.W.2d 618.

Instruction No. 2, offered by appellant, was not proper, since counsel for Clark announced at the beginning of the trial that he was waiving his plea of not guilty by reason of insanity; nor was there any evidence offered that appellant was insane.

The principal point relied upon by Clark for reversal relates to the trial court's refusal to grant appellant's motion for a mistrial when the Prosecuting Attorney offered to call Clark's wife to testify during the presentation of the state's evidence. The record reflects the following:

'Mr. Howard:

If your Honor please, I would offer to call this little girl's mother who is married to this defendant, if the defense counsel would allow her to testify.

Mr. Trimble:

I move for a mistrial, Your Honor. That's a prejudicial offer.

The Court:

Overruled. Save his exceptions. You can call her if you like, but I won't let her testify.

'Mr. Howard:

I can't use her if you won't let her testify.'

We think the motion for a mistrial should have been granted. Ark.Stat.Ann. § 43--2019 (Repl.1964) provides:

'In any criminal action in the courts of this state a husband or wife may testify as a witness in behalf of the other when called as such witness by the other spouse, but cannot be called as a witness by the opposite party.' ²

The state argues that Clark was not prejudiced by the act of the Prosecuting Attorney in attempting to call appellant's wife as a witness against the defendant, and mentions the case of McConald v. State, 225 Ark. 38, 279 S.W.2d 44. There, the defendant's wife was called by the state, was sworn, and seated in the witness chair. The record then reflects that the court asked defense counsel if he had a motion, but the record does not reflect what motion, if any, was made. The opinion recites:

'* * * (Discussion off the record.) By the Court: The Court will hold that Mrs. McDonald is incompetent to testify. By Mr. Lookadoo: I want to make an objection to this later. By the Court: Mrs. McDonald, you may stand aside and go back to the witness room. Gentlemen of the Jury, the witness who is leaving the stand is the wife of the defendant, and the Court has held that a wife cannot testify against her husband except where she has been personally injured; the Supreme Court has held that this does not include children. All right, call your next witness.'

In holding that no prejudicial error occurred, we said:

'It appears that appellant made no objection to the court's action and he is, therefore, in no position to complain for the first time here.'

It is thus clear that we did not hold that the action of the attorney for the state was not prejudicial, being unable to pass upon the point under the state of the record.

In the case before us, we think the act of the Prosecuting Attorney was prejudicial. It will be noted that our statute, heretofore quoted, goes a good bit father than prohibiting a spouse from testifying against the other in a criminal action; it provides that the spouse 'cannot be called (our emphasis) as a witness by the opposite party.' Of course, when an effort is made by the state to call one spouse to testify against the other, it would immediately appear to the jury that the called spouse considered the defendant guilty, held no sympathy for the accused, and would like to see the one on trial convicted. This could be particularly damaging where the offense was allegedly committed by a present husband against the wife's child by a previous marriage. While the crime with which the appellant is charged is heinous and revolting, we think the offer to call the wife, mother of the alleged victim, the prosecution knowing that the statute prohibited her testimony, exceeded the bounds of fairness, so essential to an unprejudiced trial.

Because of the errors herein set forth, the judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.

FOGLEMAN, J., concurs.

CONCURRING OPINION

FOGLEMAN, Justice.

I agree that the conviction of appellant must be reversed for failure to give defendant's requested instruction no. 1 on carnal abuse. I do not agree with the majority that there was any prejudicial error in the trial court's refusal to grant a mistrial. I take the majority opinion to state that a wife cannot ever be used as a witness by the State when the offense charged is not against her or her property. If this is the position of the majority, I am certainly in disagreement. In the first place, I cannot agree that we did not hold such an action to be nonprejudicial in McDonald v. State, 225 Ark. 38, 279 S.W.2d 44. It is true that the court bolstered its holding by stating that no objection was made by the appellant there to the court's action. The trial court's action there was to hold the wife called by the prosecuting attorney incompetent and to advise the jury of her incompetence. The really pertinent holding was that the offer was not prejudicial. In opening the discussion of this alleged error, this court said:

'Appellant in Assignment 2 argues that the State erred in offering as a witness appellant's wife knowing that she could not be compelled to testify against her husband (by virtue of §§ 43--2019, 43--2020), and that this offer prejudiced the jury against him. We do not agree.'

In the next plac, I think that the court's holding in the McDonald case was correct. It is true that our opinions almost universally refer to both the common law and statutory rules pertaining to testimony of a wife either for or against a husband as going to the competency of the witness. Inman v. State, 65 Ark. 508, 47 S.W. 558; Woodard v. State, 84 Ark. 119, 104 S.W. 1109; Padgett v. State, 125 Ark. 471, 188 S.W. 1158; Dean v. State, 139 Ark. 433, 214 S.W. 38; Satterwhite v. State, 139...