Clayton v. State, Cr. 3944-3945.

• Decision Date: 18 November 1935
• Docket Number: Cr. 3944-3945.
• Citation: 89 S.W.2d 732
• Parties: CLAYTON et al. v. STATE.
• Court: Arkansas Supreme Court

89 S.W.2d 732

CLAYTON et al. v. STATE.

Cr. 3944-3945.

Supreme Court of Arkansas.

November 18, 1935.

Rehearing Denied January 20, 1936.

Appeal from Circuit Court, Mississippi County, Chickasawba District; Neil Killough, Judge.

Bubbles Clayton and Jim X. Caruthers were convicted of rape, and they appeal.

Affirmed.

John R. Thompson and Jno. A. Hibbler, both of Little Rock, for appellants.

Carl E. Bailey, Atty. Gen., and J. Hugh Wharton and Ormand B. Shaw, Asst. Attys. Gen., for the State.

McHANEY, Justice.

Appellants Clayton and Caruthers, negro men, aged 21 and 19 years respectively, were convicted of the crime of rape, committed on the person of Vergie Terry, a white woman aged 19, on the night of December 21, 1934, near a cemetery in the suburbs of the city of Blytheville, Ark. They were sentenced to death in the electric chair. They were separately indicted, but tried jointly.

For a reversal of the judgment of conviction and sentence, a number of errors are assigned and argued, among which are the following:

1. That the court erred in refusing to quash the indictments against them on their motion because (a) they were not signed by the prosecuting attorney himself or his deputy. It has never been the law in this state that the signature of the prosecuting attorney to an indictment is necessary to its validity. On the contrary, it has been continuously held that such signature is not necessary. Anderson v. State, 5 Ark. 444; Watkins v. State, 37 Ark. 370. An indictment is not demurrable because not signed by the prosecuting attorney, though it is customary and better practice for him to do so. Robinson v. State, 177 Ark. 534, 7 S.W.(2d) 5. (b) Because, as it is said, they were denied the privileges and immunities guaranteed them under the Constitution, in that no negroes were on the grand or petit jury, which was a discrimination against them on account of their race or color in violation of the "due process clause" of the Fourteenth Amendment to the Constitution of the United States. There is nothing in this record tending in any way to show that there were no negroes on the grand jury that indicted them, or on the petit jury that tried them. No objection was made to either jury on this account, nor was such a ground alleged in the motion to quash the indictment, nor was any motion made to quash the trial panel on this or any other ground. It was not even mentioned as a ground in the motions for a new trial. This question is raised for the first time in the brief for appellants, without any record to support it. It cannot be considered. Even though raised in the motion for a new trial for the first time, such assignment comes too late. Hicks v. State, 143 Ark. 158, 220 S.W. 308.

2. That the court erred in refusing to change the venue on their petition. The statute, section 3088, Crawford & Moses' Dig., provides the requirements to effect a change of venue, among which are that the petition "be supported by the affidavits of two credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way." The petition in this case was supported by the affidavit of only one person, and was properly overruled, no matter how credible the affiant was, because not in compliance with the statute. Davis v. State, 170 Ark. 602, 280 S.W. 636; Adams v. State, 179 Ark. 1047, 20 S.W.(2d) 130; Cain v. State, 183 Ark. 606, 37 S.W.(2d) 708. The statements of counsel for appellants at the trial as to the reason why he could not get another or other affiants cannot supply the omission.

3. That the evidence is insufficient to support the verdicts and judgments against them. In considering this assignment, we must view the evidence in the light most favorable to the state, and if, when so viewed, there is any substantial evidence to support the verdict, we must permit it to stand. It is earnestly insisted both in the original brief and in the supplemental brief on behalf of the appellants, that the evidence of the alleged rape was incredible, and that the identification of the appellants was unsatisfactory. Incredible and unsatisfactory to whom? The jury is the judge of the credibility of the witnesses and the weight to be given their testimony. These are questions for the jury and not for this court, if, as above stated, there is substantial evidence to support the verdict. The prosecuting witness, Vergie Terry, testified very positively that she was raped by both appellants on the night of December 21, 1934; that she and Wiley Bryant were sitting in a parked car near Sawyer's Graveyard, about a mile and one-half southeast of Blytheville; that they were parked on a road running north and south near the intersection of another road running east and west; that while so parked and she and Bryant were sitting in the front seat, two negroes passed going south and in about ten minutes they came back with flash-lights in their hands and each with a pistol; that they ordered them to get out of the car and one of them fired a shot into the car and one of them struck Bryant over the head with a flash-light; that they forced Bryant to get down into a ditch and the smaller of the two held a gun on him and the other ordered her to get into the back seat of the car where he forced her to submit to his fiendish passions; that the larger of them then guarded Bryant while the smaller one forced her again to submit to him. She identified appellants as being the two men who committed the rape. This evidence was fully corroborated in all respects by Wiley Bryant. She further testified that while in the act of raping her she saw the face of each, both by the light of the moon and by the light of a passing automobile. When appellants were first arrested, they were not suspected of this crime, but it was thought that they were the ones who had recently shot the sheriff. They were threatened with mob violence, and the officers removed them to Memphis, and from thence to the penitentiary for safekeeping. While in the penitentiary, Vergie Terry and Wiley Bryant were taken there by the officers to see whether they could identify these appellants as the parties who had committed the rape. They both testified that they recognized them immediately. They identified them again in the courtroom. Both Vergie Terry and Wiley Bryant testified that the negroes had two flash-lights and that they wore handkerchiefs over their faces. Vergie Terry said that they were white handkerchiefs and that one had a colored border. Appellant Caruthers' automobile was found parked out near where the sheriff was shot. In the car they found a forty-five caliber pistol hidden under the upholstering of the back seat. Two caps were found under the cowling in the car and over a heater and two handkerchiefs were found in the pocket of the car, one of which had been folded in a three cornered shape and twisted on each end as if it had been tied. Two flash-lights were also found in the car. These are...