Cook v. State

• Decision Date: 02 October 1922
• Docket Number: 170
• Parties: COOK v. STATE
• Court: Arkansas Supreme Court

244 S.W. 735

155 Ark. 106

COOK v. STATE

No. 170

Supreme Court of Arkansas

October 2, 1922

Appeal from Benton Circuit Court; W. A. Dickson, Judge; affirmed.

Judgment affirmed.

W D. Mauck, for appellant.

J S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

OPINION

HUMPHREYS, J.

Appellant was indicted, tried and convicted in the Benton Circuit Court for an assault with intent to commit rape on Frances Allen and, as punishment therefor, was adjudged to serve a term of twelve years in the State Penitentiary. From the judgment of conviction an appeal has been duly prosecuted to this court.

Appellant's first insistence for reversal is that the court erroneously overruled his demurrer to the indictment. The indictment alleged the commission of the offense on a blank date. It was not demurrable on this ground. Grayson v. State, 92 Ark. 413, 123 S.W. 388; Threadgill v. State, 99 Ark. 126, 137 S.W. 814.

Appellant's first insistence for reversal is that the court erroneously overruled his motion for continuance. His case was set for trial on May 17, 1922. On that day he procured a continuance until June 5, a day in the same term. On June 5 his attorney made an oral motion for continuance on account of the illness of appellant. The State's attorney agreed that evidence might be heard upon the motion, which resulted in a denial of a continuance for the term, over the objection and exception of appellant. The court passed the case on his own motion, however, until the following morning. Two physicians, Doctors Hurley and Pickens, gave testimony relative to appellant's illness. Dr. Pickens was the physician in attendance upon him, and Dr. Hurley made an examination of him before testifying. Both agreed that appellant was temporarily confined to his bed on account of a disordered stomach, and bowel complaint. Both thought it best for him to keep quiet and remain at home until there was a change for the better, but neither thought it would endanger his health or his life to attend court. On the following morning appellant appeared in court and insisted upon a continuance of his case for the term. The oral motion was reduced to writing and submitted upon the evidence adduced the day before. The court again denied the motion, over the objection and exception of appellant, and ordered the trial to proceed. In view of the fact that appellant's ailment was temporary, that the court had an opportunity to observe him, and that no prejudice was shown to have resulted to him on account of being forced into trial; and the further fact that appellant was insisting upon a continuance for the term instead of a few days' delay, we are unable to say that the court abused his discretion in overruling the motion. Morris v. State, 102 Ark. 513.

Appellant's next insistence for reversal is that the court erroneously admitted the testimony of three little girls, Virgie Dean, Hazel Booth, and Hazel Hubbard, who testified that appellant attempted to have improper relations with them on various occasions about the same time it is alleged he assaulted Frances Allen. This evidence was admitted in rebuttal to testimony given by appellant in his own behalf, to the effect that he had been without sexual power for two years at the time of the alleged assault. He testified to this fact as tending to show the improbability of the alleged assault. Having made his lack of sexual desire a material issue, he was not in position to complain of the introduction of testimony as to collateral acts, tending to refute his claim of sexual inability. The admissibility of the testimony comes within the rule announced in the case of Brust v. State, 153 Ark. 348, 240 S.W. 1079.

Appellant's next insistence for reversal is that the testimony of the prosecuting witness, Frances Allen was so unreasonable that no faith and credit should be attached to it, and, because of this fact, the evidence was insufficient to support the verdict. She...