Douglass v. State

• Decision Date: 04 November 1912
• Citation: 150 S.W. 860,105 Ark. 218
• Parties: DOUGLASS v. STATE
• Court: Arkansas Supreme Court

150 S.W. 860

105 Ark. 218

DOUGLASS v. STATE

Supreme Court of Arkansas

November 4, 1912

Appeal from Pulaski Circuit Court, First Division; Robert J. Lea Judge; reversed.

Judgment reversed. Cause remanded.

Jackson & Jones, Bradshaw, Rhoton & Helm and A. M. Fulk, for appellant.

Hal L Norwood, Attorney General, and William H. Rector, Assistant for appellee.

MCCULLOCH C. J. HART, J., dissents.

OPINION

MCCULLOCH, C. J.

The defendant, Ensley Douglass, was indicted for the crime of assault with intent to commit rape upon Nina Carroll, a girl about sixteen years of age. The trial jury convicted him of the charge, and he was sentenced to the penitentiary for a term of ten years, and appeals from the judgment of conviction.

The offense is alleged to have been committed in the city of Little Rock on or about June 10, 1912, at night in the bedroom of Nina Carroll and her elder sister, Goldie Carroll, who occupied the room together. Nina Carroll was, as before stated, about sixteen years old, and her sister was about twenty-one years old. They were both well acquainted with the defendant, and he and Goldie Carroll had been on terms of intimacy for several years. She testified that he had promised to get a divorce from his wife and marry her, and that they had frequently had sexual intercourse. It is claimed that he wrongfully entered the bedroom of these young ladies in the night time and attempted, by force and threats, to have intercourse with the younger of them.

There are several assignments of error, and the one to which we shall address our attention is that the evidence is not sufficient to make out a case of assault with intent to rape; and, as the conclusion we reach on that question is decisive of the case, the other assignments need not be discussed.

Nina Carroll testified that she recognized the defendant as her assailant, and she gave the following testimony concerning the assault: "Q. Who woke you up? A. He was in the room. Q. This defendant? A. Yes, he was down on his knees by the side of my bed, and had hold of my hand and woke me up. He was whispering to me. I think he was saying, 'Girlie.' I asked his business in there. I think he was on his knees. He told me to keep still, to keep quiet, or he would kill me. He talked there for a few minutes, talking to me. I didn't say anything. He told me to keep still, and I did. I pushed my sister with my arm and woke her up. She called him by name, and asked what was the matter. Q. What did she call him? Ensley? A. She called him by name. I didn't say anything to her at all. He said to her 'You over there, you keep still.' He told us what he was there for. Q. What did he say? A. He said, 'You got to do business with me right here. You over there, you are sick. You can't, I know. You can't come across. You are not, and you have to come across.' Q. That's to you. A. Yes, he was still down there talking to me. Q. What did he have with him, when he said he would kill you? A. He had a gun. * * * Q. What did you say to him when he said you had to come across, to do business with him? A. I didn't say anything. I just laid there. She commenced talking to him and begging for me. Q. What did she say? A. She said, 'For God's sake, don't ruin my little sister. She has no mother. For God's sake, don't ruin her!' She said, 'I will take it all on myself to save her. He said, 'You are sick. I don't want you. She's the one I want.' She said, 'For God's sake, I will do anything in the world to save her.' He said, 'Well, since you begged so hard, come on. You get on this side of the bed.' He told me to get over there. I went to the foot of the bed, and she crawled over the head of the bed, and I went to the head. We were sleeping with our heads to the foot. I got on the other side, and she got on the side I was on. I don't know; I guess he thought I was trying to get out of bed. He thought I was trying to get out for something. He said, 'Being you are getting out somewhere, I will just put my hands on you.' I said something to him. I don't remember just what I said to him. He said, 'Just for that, I will put my hands on you,' and he did. I didn't say anything to him at all. Q. Was he trying to have intercourse with you against your will? Was that against your will? A. Yes. Q. Did he tell you that he would kill you there in the presence of your sister with the gun? A. Yes, if I didn't. She begged him out of it."

This is all the testimony on the subject, and the question is, was it sufficient to constitute an assault with intent to commit rape? The evidence shows that there was a technical assault by touching or taking hold of the hand of the girl by the defendant, and also, after he had desisted from his attempt to induce her to have sexual intercourse with him, by again touching her person, Drawing a gun with intent to use it or to coerce her was also a technical assault. But did these technical assaults constitute a part of the essential element of...