Crank v. State
| Decision Date | 29 September 1924 |
| Docket Number | 142 |
| Citation | 264 S.W. 936,165 Ark. 417 |
| Parties | CRANK v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Fort Smith District; John E Tatum, Judge; affirmed.
Judgment affirmed.
John D. Arbuckle, for appellant.
J S. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
Appellant was convicted of assault and battery, on a trial under an indictment the charging part of which reads as follows: "The sad defendant, A. W. Crank, in the county, district and State aforesaid, on the 10th day of September, 1923, did unlawfully, forcibly and feloniously make an assault upon Beatrice Mathews, with the unlawful and felonious intent to then and there forcibly, unlawfully and feloniously and against her will and consent to rape, ravish and carnally know the said Beatrice Mathews, she, the said Beatrice Mathews, being a female under the age of sixteen years, against the peace and dignity of the State of Arkansas."
The girl alleged to have been assaulted was twelve years old, and appellant was fined $ 100, and it is first insisted that he could not be convicted of assault and battery because the indictment contains no allegation of a battery.
This is true. This court has uniformly held that, in cases of this kind, and in prosecutions for assault with intent to kill in which an assault is charged, there can be no conviction of a battery unless the indictment contains allegations to that effect. In other words, a battery must be charged to sustain a conviction for that offense. McAlister v. Gunter, 164 Ark. 611, 262 S.W. 636; Jones v. State, 100 Ark. 195, 139 S.W. 1126; Bryant v. State, 41 Ark. 359.
It is true, in the case of Moreland v. State, 125 Ark. 24, 188 S.W. 1, the defendant was indicted for assault with intent to rape, and a conviction for assault and battery was sustained, but no point was made that the indictment did not allege a battery, and it does not appear from the opinion in that case that the indictment omitted that allegation.
It does not appear, however, that there was any prejudice to appellant in the verdict returned. The punishment for simple assault is a fine not exceeding $ 100, and the punishment for assault and battery is a fine not exceeding $ 200, and for either offense a fine as low as one cent might be imposed. The jury might therefore have assessed appellant's fine at less than $ 100, although they found him...
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...and the jury must necessarily have found, the defendant to have been guilty of that offense in arriving at its verdict. Crank v. State, 165 Ark. 417, 264 S.W. 936. An additional requirement is that the evidence must show that the lesser offense was committed. Davis v. State, 45 Ark. 464. Se......
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