Crawford v. State

• Citation: 201 S.W. 784,132 Ark. 518
• Decision Date: 25 February 1918
• Docket Number: 175
• Parties: CRAWFORD v. STATE
• Court: Supreme Court of Arkansas

201 S.W. 784

132 Ark. 518

CRAWFORD v. STATE

No. 175

Supreme Court of Arkansas

February 25, 1918

Appeal from Independence Circuit Court; Dene H. Coleman, Judge affirmed.

Judgment affirmed.

F. O Butt and McCaleb & Reeder, for appellant.

1. The juror Broadwater was disqualified and defendant's challenges were exhausted. 113 Ark. 302; 120 Id 470.

2. Improper testimony was admitted as to the bad reputation of defendant and as to the commission of other crimes. 101 Ark. 147; 99 Id. 604; 103 Id. 119. See also 91 Id. 555; 120 Id. 548; 88 Id. 261; 1 Greenleaf on Ev., 39; 1 Wigmore on Ev., § 56. See also as to the admission of other improper testimony, 1 Hale, Pleas of the Crown, 635; 4 Enc. Ev. 446; 10 R. C. L. 962, 975.

3. The court erred in its instructions. 105 Ark. 218; 63 Id. 470; 77 Id. 37; 99 Id. 558; 50 Id. 335. See also 68 Id. 336; 56 Id. 242; 36 Id. 653.

4. There was misconduct of attorney for State. 87 Ark. 461; 72 Id. 427, 461; 63 Id. 174; 71 Id. 427; 74 Id. 210.

5. There was error in the remarks of the court. 51 Ark. 147; 54 Id. 490; 99 Id. 142.

6. The verdict is against the law and the evidence and the newly-discovered evidence.

John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. Broadwater was a competent juryman. 120 Ark. 470; 114 Id. 472; 109 Id. 450; 103 Id. 21; 101 Id. 443; 85 Id. 64; 80 Id. 13; 79 Id. 127; 66 Id. 53.

2. The testimony of Grace Patterson and others in rebuttal as to misconduct of defendant was competent. 103 Ark. 119; 72 Id. 586; 75 Id. 427; 87 Id. 17; 80 Id. 495; 57 Ark. Law Rep. 122. Proof of other similar sexual offenses was admissible. 78 Ark. 16; 112 Tenn. 572; 8 R. C. L. 204; 110 Ark. 318; 125 Id. 275; 127 Id. 289; 110 Id. 226; 58 Ark. Law Rep. 449, and many others; also 8 R. C. L. 201; 234 Mo. 200.

3. There is no error in the instructions. 50 Ark. 330; 68 Id. 336; 127 Id. 516; 91 Id. 224.

4. Neither the argument nor conduct of Attorney Ponder calls for a reversal. 58 Ark. Law Rep. 268.

5. There was no error in the remarks of the court. 80 Ark. 201.

5. The law and evidence fully warrant the verdict. 50 Ark. 330. See also 41 Minn. 285; 12 Iowa 66; 50 Id. 189; 96 Id. 471.

6. The cause should not be reversed for newly-discovered evidence. 125 Ark. 209; 54 Id. 364; 41 Id. 229.

OPINION

MCCULLOCH, C. J.

The defendant, W. D. Crawford, was tried under an indictment charging him with the crime of rape, but he was convicted of assault with intent to commit rape and appeals from that judgment.

Defendant was, at the time of the commission of the offense, the superintendent of an orphans' asylum maintained by a certain fraternal society, and the female whom he is charged with having criminally assaulted was a child under his charge in the orphanage. She had attained the age of twelve years shortly before the alleged assault was committed upon her by the defendant. The assaulted child was introduced as a witness by the State and her testimony tended to show three separate assaults upon her by the defendant, and in each that he had sexual intercourse with her against her will. The first instance alleged by her was a few days after she became twelve years of age, in March, 1917; the next time was two or three weeks later, and the last time was on July 11, 1917. The State elected to rely for conviction upon the last assault committed. The child testified that on that day she and one of her companions were going along one of the halls in the orphanage and that the defendant caught hold of her and pulled her into a room and locked the door and had sexual intercourse with her. She stated that, over her objections, he completed the act of intercourse--that she cried out in pain, but desisted on account of his insisting that she keep quiet. She testified also that she submitted to his embraces because of his authority over her as superintendent. The testimony was sufficient to make out the crime of rape as alleged in the indictment, but the verdict was not inconsistent in finding the defendant guilty of the lower charge of assault with intent to rape, for the jury might very well have found under the circumstances as related by the child that the act of intercourse did not progress sufficiently to complete the crime of rape. It is unnecessary to relate those circumstances in detail. Defendant denied that he maintained any improper relation with the child or that he ever assaulted her on that occasion or on any other occasion.

The first assignment of error is in relation to the ruling of the court concerning the competency of one of the veniremen. Broadwater, the venireman in question, stated on his examination that he had formed an opinion concerning the guilt or innocence of the defendant from reading an account of the crime in a newspaper, but that he had not expressed that opinion, and he further stated that he could lay aside that opinion and try the case upon the evidence adduced in the trial. He was examined somewhat at length by counsel for the defendant and by counsel for the State, and his answers were not always clear so far as they appear in this record. For instance, when asked at one time a direct question whether or not he could throw aside what he might have heard or read and try the case solely upon the law and evidence as given in the trial, he replied in the following words: "I think I could." Taking the whole of his examination together, however, the language used by the witness is sufficient to express a fixed willingness and ability to disregard the opinion derived from reading the newspaper and try the case upon the evidence brought forth in the trial. That being true, the juror was not disqualified by previous opinion. Jackson v. State, 103 Ark. 21, 145 S.W. 559; Davidson v. State, 109 Ark. 450, 160 S.W. 385; McGough v. State, 113 Ark. 301, 167 S.W. 857.

The next assignment of error concerns the admission of certain testimony over the defendant's objection. The defendant testified in his own behalf and denied all charges of improper relation between himself and the child whom he is alleged to have assaulted. On cross-examination he was asked by the State's counsel whether or not he had made a practice of fondling the girls in the orphanage whenever he had an opportunity to do so. Certain of the girls were mentioned by name, and he was asked if he had not made a practice of hugging and kissing them in the halls and in the rooms whenever he had an opportunity. He answered the question in the negative, and denied that he had ever made any improper advances on any of the girls or young women in the orphanage. On rebuttal the State was permitted to introduce several of the girls, who testified to frequent acts of misconduct of defendant in his relations with them. The ages of these witnesses range from fourteen to eighteen and all of them testified that defendant was accustomed to putting his arms around them and feeling their breasts and kissing them when he met them in the dark hallways or other private places. Two of the girls testified that he took three of them in a room on a certain occasion, and without having actual sexual intercourse with them, he was guilty of most disgusting conduct approaching the act of intercourse. The rule is that the cross-examining party is bound by the answer of a witness concerning collateral matters, and that evidence of specific acts of misconduct or immorality is not admissible in a criminal case to establish bad reputation on the part of the defendant who has testified as a witness. Ware v. State, 91 Ark. 555, 121 S.W. 927; McAlister v. State, 99 Ark. 604, 139 S.W. 684; Brock v. State, 101 Ark. 147, 141 S.W. 756. Counsel for the State defend the ruling of the court on the ground that the testimony was competent for the reason that the subject-matter thereof was not collateral, but was directed to the main issue. In other words, it is contended that the State was entitled to introduce the evidence to prove the main issue in the case, and for that reason it was competent as original evidence. Peters v. State, 103 Ark. 119, 146 S.W. 491. There are certain well established exceptions to the rule against the admission of evidence of one crime in proof of another, but we do not deem it necessary to determine in the present case whether the evidence now complained of falls within any of those exceptions, for we are of the opinion that if an error was committed by the court in admitting the testimony it was invited by the defendant's own act in drawing out similar testimony from another witness. It is a clear case, we think, of invited error of which the party can not complain. The State first introduced the assaulted girl, who testified all about the assault, and also about her making complaint to her companions and the condition her undergarments were in after the assault was made. The State then introduced one of the child's companions who testified that she was with the girl when the defendant took her into the room and that shortly afterwards the girl came up to their room and told her about the assault and showed her the condition of her undergarments. She testified that they talked about the matter with some of the other girls and finally decided to go and tell one of the ladies in the orphanage about the instance, and did so. No objection was made by the defendant to any of these girls' testimony, but on cross-examination counsel for defendant drew out the fact from the witness that the defendant had assaulted her and two other girls. She testified that on one occasion the defendant took her and two other girls into a private room (neither of them being the girl assaulted in the present case) and that he took them upon his lap one by one and took out his sexual organ and rubbed it...