Curtis v. State

• Decision Date: 01 March 1909
• Parties: CURTIS v. STATE.
• Court: Arkansas Supreme Court

117 S.W. 521

CURTIS v. STATE.

Supreme Court of Arkansas.

March 1, 1909.

Appeal from Circuit Court, Garland County; W. H. Evans, Judge.

Jesse Curtis, having been convicted of statutory rape, appeals. Reversed.

The defendant was convicted in the Garland circuit court of the crime of carnal abuse. The indictment (omitting formal parts) charged that: "The said Jesse Curtis in the county and state aforesaid, on the 15th day of December, A. D. 1906, unlawfully and feloniously did make an assault in and upon one Bertha Williams, a female child under the age of consent, to wit, of the age of fifteen (15) years, and her the said Bertha Williams unlawfully and feloniously did carnally know and abuse." Defendant demurred to the indictment, which demurrer was overruled. Defendant saved his exceptions. Defendant then moved to require the state to elect as to whether it would stand on the charge of carnal knowledge or carnal abuse, which motion was overruled, and defendant excepted. Defendant moved for time in which to prepare his case, stating for his ground that his attorney had been gone for seven months, and that he did not know of his absence, and only employed new counsel the day before. The court gave him until 2 o'clock the next day. Defendant excepted to the ruling of the court, and asked that his exceptions be noted, which was done.

Bertha Williams testified as follows: "I was born in December, 1891. I know Jesse Curtis. He had sexual intercourse with me three or four times in 1906. I don't remember the dates. The first time was near home on the side of the mountain. I gave birth to a baby on the 18th of February, 1907. I never had sexual intercourse with any person except defendant before I gave birth to the child. The defendant is the father of the child."

Sarah Williams testified: "I am the mother of the prosecuting witness Bertha Williams. (When testifying to Bertha's age, she consulted a written memorandum, supposed to be leaves torn from a Bible. Defendant objected and had his exception noted.) Bertha was born on the 16th day of December, 1891. The leaves are the family record torn from a Bible which belonged to my husband. When we separated several years ago, I tore the record from the Bible."

B. F. Jenkins testified for appellant that he had known Bertha Williams for years, and that she was 19 years old at the time he was testifying October 9, 1908.

The court, at the request of the state, gave the following instruction: "(1) The court instructs the jury that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant had sexual intercourse with the prosecuting witness; and, at the time he had such intercourse, Bertha Williams was under the age of 16 years, the defendant would be guilty, and you should so find." Appellant excepted to the giving of the above instruction.

At the request of appellant, the court gave the following: "(3) The court instructs the jury that you are the sole and exclusive judges of the weight of the testimony and of the credibility of the witnesses; and if you believe that any witness has willfully sworn falsely as to any part of his testimony, you are at liberty to disregard the whole testimony of such witness, or you may consider such parts of his testimony as you believe to be true, and disregard such parts of it as you do not believe to be true. And in considering the weight that should be given to the testimony of any witness, you may take into consideration the manner of said witness upon the stand, his seeming willingness to testify on one side and not to testify on the other, or the partiality that such witness may seem to have for the defendant or the prejudice that he may seem to have against him. (4) The court instructs the jury that the defendant is presumed to be innocent of the crime charged against him until the contrary is proven, and that it devolves upon the state to show by competent proof that the defendant had sexual intercourse with the said Bertha Williams, and that the said Bertha Williams was at that time under the age of 16 years; and if upon the whole case you entertain a reasonable doubt that the defendant had sexual intercourse with the said Bertha Williams, or that the said Bertha Williams was under the age of 16 years at the time of said act of sexual intercourse is proven to have been committed, then you should find the defendant not guilty."

The court refused the following prayers of appellant, to which ruling he duly excepted: "(1) The court instructs the jury to find the defendant not guilty. (2) The court instructs the jury that the sheets of paper alleged to be a family record and taken from the Bible and introduced by the state in the testimony of the mother of Bertha Williams are incompetent, and should not be considered by you in your efforts to arrive at a verdict in this case; and unless you can find from other evidence that the defendant had sexual intercourse with Bertha Williams, and that the said Bertha Williams was at the time under the age of 16 years, your verdict should be for the defendant. (3) The court instructs the jury that it devolves upon the state to prove beyond a reasonable doubt that the defendant had sexual intercourse with Bertha Williams, and that such intercourse was unlawful. You are further instructed that sexual intercourse between a man and a woman is not unlawful if they are married to each other at the time, and unless it is shown by the proof that the defendant and said Bertha Williams were not married to each other at the time said acts of sexual intercourse are alleged to have been committed, you should find the defendant not guilty."

The bill of exceptions recites the following: "In the closing argument the prosecuting attorney made use of the following language: `The defendant does not deny that he had sexual intercourse with the plaintiff, and the proof is conclusive that she was under the age of 16 years.' The defendant objected to the prosecuting attorney being permitted to use said language, but the court refused to stop or reprimand said attorney or to admonish the jury to disregard that part of his argument. To which ruling of the court the defendant at the time objected, and asked that his exception be noted of record, which was accordingly done."

The jury returned a verdict of guilty and fixed the punishment at one year in the penitentiary.

The...