Frazier v. State
| Decision Date | 21 May 1892 |
| Citation | 19 S.W. 838,56 Ark. 242 |
| Parties | FRAZIER v. STATE |
| Court | Arkansas Supreme Court |
APPEAL from Cleveland Circuit Court, CARROLL D. WOOD, Judge
Frazier appeals from a conviction of rape. The evidence of the prosecuting witness was to the effect that the appellant gained possession of her person without physical force, but by means of threats of choking her if she resisted or made outcry. Appellant insists that the trial court erred, (1) in that there was no proof of the venue of the offense, (2) in refusing to give the fourth and seventh instructions asked by him and copied in the reporter's first head-note to this opinion, and (3) in giving certain instructions asked by the State.
Judgment reversed and cause remanded.
Met L Jones for appellant.
1. The venue is not proven.
2. No force whatever is shown.
3. The court erred in refusing the fourth and seventh requests for appellant.
W. E Atkinson, Attorney General, and Charles T. Coleman for appellee.
1. The fourth and seventh requests for instructions were properly refused. They are not the law.
2. It is not necessary that physical force be used. Any intimidation, by threats or otherwise, which overcomes the will is sufficient.32 Ark. 710; 13 id. 360; 2 Bish. Cr. Law sec. 1125.
3. The venue may be inferred from the circumstances in proof.
There is no proof of the venue of the offense, and the judgment cannot be sustained. As the case must be retried, we have thought best to consider the charge to the jury. We think the court properly refused to give the fourth and seventh instructions asked by defendant [*]; we have been directed to no principle or precedent in support of them, and they embody principles that seem necessarily unsound.
There was no error in the instructions given for the State, unless it be found in the following: "If the jury find that any witness has sworn falsely to any material fact, they may, if they see proper, disregard the whole testimony of such witness." False swearing as to a particular fact warrants a jury in discrediting the entire testimony of a witness only when it is wilful, and the instruction is incomplete in omitting this. Moreover, the instruction might be construed as warranting a jury in disregarding testimony which it believed to be true, if it emanated from a witness who had sworn falsely to some other fact. Thus construed, it does not reflect the law, for,...
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...41; State v. Chamberlain 89 Mo. 129, 1 S.W. 145), a failure to prove the venue is fatal (Wharton on Crim. Law, Sec. 601; Frazier v. State, 56 Ark. 242, 19 S.W. 838; Jones v. State, 58 Ark. 390, 24 S.W. 1073). Even it was permissible to draw the inference that the crime was committed in the ......
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