Davis v. State

• Decision Date: 20 February 1897
• Citation: 39 S.W. 356,63 Ark. 470
• Parties: DAVIS v. STATE
• Court: Arkansas Supreme Court

39 S.W. 356

63 Ark. 470

DAVIS v. STATE

Supreme Court of Arkansas

February 20, 1897

Appeal from Pulaski Circuit Court, First Division, ROBERT J. LEA Judge.

Judgment reversed and cause remanded for new trial.

Ashley Cockrill for appellant.

The court erred in admitting the testimony of the constable Beller, that the rapist was described to him by the prosecutrix, and that he identified him by that description and arrested him. Lewis v. State, 61 Ark. 494. Also in allowing him to testify as to what prosecutrix said and did when he arrested defendant and took him in her presence. 34 S.W. 274; 28 id. 810. It was error to refuse to instruct the jury that if prosecutrix yielded at any time during the assault, or was passive, or ceased to resist, and her mind was not so overpowered with fear, they should find for defendant. 36 Mich. 203; 110 Mass. 405; 53 Mo. 65; 43 Cal. 447; 35 Ind. 506; 82 Va. 653; 17 S.Ct. 210. The prosecutrix must resist to the extent of her ability. 59 N.Y. 374; 126 id. 283; 1 Parker, Cr. Rep. 625; 19 Neb. 330; 32 N.Y. 525, 531, 540; 3 Hill, 309, 316, 317; 7 Carr. & P.318; 13 Mich. 427, 433; 53 Mo. 65; 19 Wend. 134-5; 47Wis. 523; 11 Neb. 276; 58 N.W. 22; 6 Cal. 221; 27Fla. 387; 42 P. 953.

E. B. Kinsworthy, Attorney General, for appellee.

OPINION

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 so 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 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 instance fully covers the point, and that the court committed no error in refusing the instruction asked by defendant. We think the court's instructions on the whole were very fair to the defendant.

The objection to the testimony of the constable Beller, we think was well made. Witness stated: "I am a white man, and constable of Hill township. I heard about the rape Saturday, but did not go to see Mrs. Reynolds until Sunday morning. When I arrested the defendant, I took him out to Mrs, Reynolds' house. I didn't arrest him until Sunday afternoon. Mrs. Reynolds described the person who had...