Garrard v. State

• Decision Date: 18 May 1914
• Docket Number: (No. 327.)
• Parties: GARRARD v. STATE.
• Court: Arkansas Supreme Court

167 S.W. 485

GARRARD v. STATE.

(No. 327.)

Supreme Court of Arkansas.

May 18, 1914.

Appeal from Circuit Court, Columbia County; C. W. Smith, Judge.

Sam Garrard was convicted of rape, and he appeals. Affirmed.

The appellant was convicted of the crime of carnal abuse alleged to have been committed by carnally knowing one Mittie Spencer a female under the age of 16 years. At the time appellant was alleged to have had sexual intercourse with this girl, she was not quite 16 years old, and it is only contended that he had intercourse with her on one occasion, and the circumstances under which this act of intercourse is said to have occurred are such as to raise serious question as to the veracity of the witness. The appellant denied ever having had sexual intercourse with the prosecuting witness, and she did not tell any one that he had ever done so until some months thereafter, and it does not appear why she told it when she did, as she has never been pregnant. On her cross-examination she was asked the following question:

"Q. Have you had any intercourse before with any other man?"

The court sustained an objection to this question, whereupon she was asked the following question:

"Q. Have you had any intercourse with any other man either prior or subsequent to the time that you had intercourse with the defendant, Sam Garrard?"

An objection to this question was sustained, and appellant duly excepted. Appellant did not attempt to show what answer he expected to receive as a result of this question, and there is nothing to indicate that he expected the witness to admit her incontinence, if she was permitted to answer, and answered the question truthfully.

C. W. McKay, of Magnolia, for appellant. Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

SMITH, J. (after stating the facts as above).

We have here the exact question decided in the case of King v. State, 106 Ark. 160, 152 S. W. 990, and the question arises upon a record identical with the record in that case, and consequently this case is ruled by that one and must be affirmed.

We there held that this evidence was competent, not as a matter of defense, because the unchastity of the female is not a defense, but that it was competent to be considered as a matter of mitigation, and also as bearing upon the credibility of the witness. The jury would have the right to say, under the circumstances of each particular case, whether such admission should mitigate the...