Davis v. State

• Decision Date: 20 February 1897
• Citation: 39 S.W. 356
• Parties: DAVIS v. STATE.
• Court: Arkansas Supreme Court

Page 356

39 S.W. 356

DAVIS v. STATE.

Supreme Court of Arkansas.

February 20, 1897.

Appeal from circuit court, Pulaski county; Robert J. Lea, Judge.

Robert Davis was convicted of rape, and appeals. Reversed.

Ashley Cockrill, for appellant. E. B. Kinsworthy, Atty. Gen., for the State.

BUNN, C. J.

This is an indictment for rape, tried and determined in the Pulaski circuit court, First division, and resulting in a verdict and judgment of guilty, from which, in due form, defendant appeals to this court. The principal, and the only material, controversy in this case is — First, as to the court's instruction on the subject of the character and continuity of resistance exhibited by the injured party, necessary to show that the rape was really and in fact against her will, as defined and required by the statute; and, secondly, whether or not the trial court improperly admitted the testimony of the officer who made the arrest, in so far as he referred in his testimony to the description the injured party gave him of the person who committed the offense, before the arrest was made, and the identity of the defendant with the crime established in that way.

Defendant complains that the court should have given the second instruction asked by him, which is as follows, to wit: "You are instructed, as a matter of law, that force is an essential element in the crime of rape. There must be proof of actual penetration, made against her will. There must be on her part the uttermost resistance. Opposition by mere words is not enough. She must resist up to the point of being overpowered by actual force, or her will must be overcome by fear and terror so extreme as to preclude resistance. If you under all the evidence, have a reasonable doubt that such resistance was exercised, you will find the defendant not guilty of rape. In considering the amount of resistance, you are to take into consideration all the surrounding circumstances, such as the relative strength of the parties, their relative ages, the outcry or want of outcry, the physical power still possessed by the prosecutrix after the alleged resistance; and if, after considering all the evidence, you have a reasonable doubt of defendant's ability to have committed the crime, — if the prosecutrix, by the use of all her powers of resistance, could have prevented the connection at any time before it was actually made, — you will find the defendant not guilty of rape." The court gave, on its own motion, the following instruction, numbered 4, to wit: "Force is a necessary element in the crime of rape. The carnal knowledge must be had by him against the will of the person alleged to have been raped. The proof must show, beyond a reasonable doubt, that the woman did not consent, and that her resistance was not a mere pretense, but was in good faith. As before stated to you, it must be against the will of the party; that is, by force. If the carnal knowledge was had actually by force, or if the woman submitted from terror or dread of a greater violence, the intimidation becomes equivalent to force. The word `force' is taken in its ordinary acceptation. I mean by it common physical force. If by acts of violence the woman is so much in fear of her life or bodily harm that she is unable to make resistance, that is equivalent to force." This instruction, we think, fairly submitted the question of force and resistance to the jury. We are aware that some authorities are to the effect that superlative words, like "uttermost resistance," "resistance to the last extreme," and such like, should be employed. But we think the instruction as given by the court in this...