Frederick v. State, CR75--62
| Decision Date | 29 September 1975 |
| Docket Number | No. CR75--62,CR75--62 |
| Citation | 528 S.W.2d 362,258 Ark. 553 |
| Parties | Franklin FREDERICK, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Harold L. Hall, Public Defender, Little Rock, for appellant.
Jim Guy Tucker, Atty. Gen. by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellee.
Appellant Frederick contends that the evidence was insufficient to support a jury verdict finding him guilty of assault with intent to rape. He also argues that the court erred in refusing to give his requested instruction on simple assault, as a lesser included offense. The state has confessed error on the matter of the jury instruction in reliance on Fike v. State, 255 Ark. 956, 504 S.W.2d 363, but we find no error in that respect, as we will point out. Appellant also challenges the sufficiency of the evidence, so we must consider it, viewing it in the light most favorable to the state. We find it sufficient.
Martha Martin Ward worked until 10:45 on the night of July 4, 1974. She then went to her place of residence at 1500 Scott Street in Little Rock, where she found her sister and two nieces, aged 9 and 5 and her 11-month-old grandson. The sister left immediately to report for work at 11:00. Mrs. Ward's cousin, Danny Ray Powell, came and stayed until 2:00 A.M. and her fiance visited for 35 or 40 minutes and left about 12:30 A.M. Mrs. Ward's 16-year-old daughter came home a little after midnight and later fell asleep on a living room couch, while watching television. Mrs. Ward went to bed to sleep about 2:30 A.M., wearing her underclothes. She awakened sometime before 4:00 A.M. to find a hand in her face. Thinking it was her cousin, she said, 'Don't scare me like that'. A male person, positively identified as Frederick, responded, 'Shut up, bitch, I am going to kill you.' This man had one knee on her bed and was propped on the bed in such a manner that one foot was on the floor. When she screamed, he slapped her and told her to shut up, but she screamed again. At this time her daughter awakened and, thinking her mother was having a nightmare, came to the door of the room. Standing in the doorway near the infant grandson's crib, she asked this man, 'What are you doing to her?' and commanded, 'Let her go'. Frederick ordered the daughter to sit down and, when she did not comply, told Mrs. Martin to tell her to do so or he was going to kill her (Mrs. Martin) immediately. The daughter then sat on the foot of the bed. Frederick told her to watch because she was next. Frederick had an 'afro comb' which he started moving down below Mrs. Martin's waist, and while holding her, he tried to cut her vagina with the comb, which was 'filed down'. He had ripped her underclothes to shreds. Mrs. Martin then pushed him backward into a chair with her foot and told her daughter to go for help, saying that if one of them had to die, let it be her (Mrs. Martin). As the daughter escaped, Frederick removed a sheet Mrs. Martin had over her, tore her pants off, dragged her through the door and out the living room door. In the front yard, he kept hitting her and stripping off her clothes, tried to jab her with the comb and pull her around the house, but, when either a person or a car approached, he threw her down, kicked her and ran away, as her sister and daughter were returning to the house. Mrs. Martin did not see Frederick again until 4:00 or 4:30 P.M., when she identified him as her assailant at police headquarters.
Appellant relies upon Douglass v. State, 105 Ark. 218, 150 S.W. 860, 42 L.R.A.,N.S., 524, which in turn is bottomed upon Paul v. State, 99 Ark. 558, 139 S.W. 287 and Anderson v. State, 77 Ark. 37, 90 S.W. 846. In each of these cases we found the evidence insufficient, but all lack an element present here. In Douglass, we said that taking hold of the victim's hand, awakening her and drawing a pistol on her with a threat to kill her if she did not keep quiet were not overt acts constituting the beginning of, or a part of the perpetration of, the crime of rape, but were merely a part of the preparation for the act. In Paul, the assailant made improper remarks to the victim, placed his hand on her arm and offered her fifty cents. There were no acts indicative of an intention to rape her. In Anderson, the assailant never put his person in position to have sexual intercourse, never attempted to throw his victim down or interfered with her clothing.
This case may also be distinguished from Poole v. State, 234 Ark. 593, 353 S.W.2d 359, not cited by appellant. In Poole, no part of the body of the victim of the assault was touched other than her mouth and throat. The assailant put a hand over her mouth, his arm around her neck, grabbed her by the throat and dragged her under a viaduct. This court held (4--3) that there was no evidence of an intention to rape.
It is clear from these cases that an intention to have sexual intercourse with the victim is not sufficient, unless an intention to accomplish that purpose by...
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