Fike v. State
| Decision Date | 28 January 1974 |
| Docket Number | No. CR,CR |
| Citation | 504 S.W.2d 363,255 Ark. 956 |
| Parties | Kenneth Boyce FIKE, Appellant, v. STATE of Arkansas, Appellee. 73--132. |
| Court | Arkansas Supreme Court |
Potter & Potter, Texarkana, for appellant.
Jim Guy Tucker, Atty. Gen., by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.
A jury found appellant guilty of assault with the intent to rape and fixed his punishment at five years in the Department of Corrections, after having found him guilty also as a habitual criminal (one previous conviction). For reversal appellant first contends that the trial court erred in refusing to permit the prosecutrix to be interrogated to cross-examination as to a particular act of immoral conduct; i.e., giving birth to an illegitimate child.
Our cases are somewhat in conflict concerning the admissibility of specific prior acts of immorality. The state cites Pleasant v. The State, 15 Ark. 624 (1854--1855), and Jackson v. State, 92 Ark. 71, 122 S.W. 101 (1909), to the effect that in rape or related cases it is impermissible to attack the credibility of the prosecutrix by eliciting on cross-examination evidence of particular acts of unchasity; however, her credibility can be impeached by evidence of her general reputation as to truth and morality. To the contrary is King v. State, 106 Ark. 160, 152 S.W. 990 (1913), an assault with intent to rape case, where we said that it is permissible on cross-examination to ask the prosecutrix if she had had sexual intercourse with someone other than the defendant. See also Lockett v. State, 136 Ark. 473, 207 S.W. 55 (1918). In King v. State, supra, Justice Frank Smith, speaking for a unanimous court, detailed the guidelines. There we held, however, that no prejudice resulted from the refusal to allow an answer to the permissible question inasmuch as it did not '* * * affirmatively (appear) that the defendant believed that the witness would make an admission favorable to his defense, if she answered the question truthfully * * *.' Likewise in the case at bar, no prejudice was demonstrated inasmuch as the appellant did not comply with this requirement by stating to the court that he believed in a favorable response. The appellant would be bound by the prosecutrix's answer. Additionally, as abstracted, the appellant made no objections to the court's ruling and appears to have acquiesced in the court's action. We deem unnecessary a further discussion of the divergent views.
Appellant next contends for reversal that the trial court erred in refusing appellant's proffered instruction to the jury that if they found him not guilty of assault with intent to rape they could find him guilty of assault. We must agree with appellant's contention. We briefly summarize the evidence since the sufficiency to support the verdict of assault with intent to rape is not in issue. The prosecutrix testified that as she left a local night club, after a dispute with her divorced husband, the defendant offered her a ride home. After driving around a short time, he made improper advances toward her, which she refused. Outside town he stopped the car and persisted. She got out and started walking. He threw her into a ditch and attempted to have intercourse with her despite her resistance. When she succeeded in repelling him, he persuaded her to get back in the car, promising he would take her wherever she desired. He then drove her back to the parking lot of the night club where she jumped out of the car. She stated that the appellant never struck or raped her and that the scratches she received were caused by the gravel on the roadside when he threw her down. The appellant did not testify.
We have recently said '* * * in order to find error in the refusal of the trial court to give a requested lesser offense instruction it must appear that the offense in the requested instruction was one necessarily contained within the higher offense and the evidence showed the existence of all the elements of the lesser offense.' Flaherty and Whipple v. State, 255 Ark. ---, 500 S.W.2d 87 (1973). See Caton and Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972), for a thorough analysis of our cases involving lesser included offense instructions. It appears that the offense must be of the same generic class; all elements of the lesser offense must be contained in the greater offense, so that commission of the higher offense must involve commission of the lower; and the charge must contain all substantive allegations necessary to let in proof of the lesser offense.
In the case at bar, all of these elements coexist. Certainly, assault is of the same generic class...
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...offense [is] possible regardless of the state of the evidence." Comment, 57 Nw.U.L.Rev. at 67; see also Fike v. State, 255 Ark. 956, 959, 504 S.W.2d 363, 365 (1974) (applying jury function theory); [State v.] Brown, 163 Conn. at 60-61, 301 A.2d at 552 [ (1972) ] (same); State v. Peterson, 2......
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...was entitled to protection from mere humiliation and embarrassment. King v. State, 106 Ark. 160, 152 S.W. 990. See also, Fike v. State, 255 Ark. 956, 504 S.W.2d 363. It is true this would require a very limited type of proffer. See also, Washington National Insurance Co. v. Meeks, 249 Ark. ......