Gaston v. State

• Decision Date: 23 May 1910
• Citation: 128 S.W. 1033,95 Ark. 233
• Parties: GASTON v. STATE
• Court: Arkansas Supreme Court

128 S.W. 1033

95 Ark. 233

GASTON v. STATE

Supreme Court of Arkansas

May 23, 1910

Appeal from Sebastian Circuit Court, Greenwood District; Daniel Hon Judge; reversed.

Judgment reversed and cause remanded.

C. T Wetherby, for appellant.

The verdict is not supported by the evidence. 48 Ark. 66; 58 Ark 3; 61 Ark. 62; 6 Conn. 417. The evidence showed rape conclusively, and the former jury must have acquitted appellant because of the improbability of witness' story. 20 Ore. 427; 141 Mo. 281; 2 Mont. 193; 22 O. St. 541; 36 P. 302; 74 Mo. 395; 21 Neb. 171.

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

An acquittal on charge of rape does not bar a prosecution for incest. 60 Am. St. R. 35. A party may be convicted of incest though he accomplish his purpose by such means as would make it rape. 19 So. 306; 54 Am. St. R. 140. The crime of incest may exist, although the consent of the female to the act was never obtained. 90 Cal. 359; 119 Cal. 456; 151 Cal. 604; 74 Mo. 385; 204 Ill. 479; 106 Ind. 163; 30 Tex.App. 695; 20 Wash. 522; 131 Mass. 577; Bish. Stat. Crimes, 660; 44 Ga. 209; 68 Ga. 672; 90 Wis. 527; 82 Wis. 571; 9 P. 532. The aim of the statute is to prevent unnatural intercourse. 117 La. 122. No corroboration is required. 42 Fla. 184. The woman is an accomplice only when she consented to the act. 11 Tex.App. 92; 103 N.W. 159. Where she did not consent, her uncorroborated testimony is sufficient. 75 P. 166; 103 Ia. 720; 91 N.W. 191; 59 Vt. 614. Remarks of counsel were not prejudicial. 76 Ark. 39; 88 Ark. 62; 71 Ark. 403; Id. 62; 84 Ark. 131.

OPINION

FRAUENTHAL, J.

The defendant, James Gaston, was convicted of the crime of incest, and he has appealed to this court to obtain a reversal of the judgment of conviction. The testimony on the part of the State tended to prove that the defendant was a married man, and the father of Annie Martin, and that he did have carnal knowledge of his said daughter. The principal witness on behalf of the State was the daughter; and the testimony tended to prove that the defendant obtained the sexual intercourse with her without her consent and forcibly and against her will. It is urged that, in order to constitute the crime of incest, it is necessary that both parties should assent to the intercourse. In some jurisdictions it has been held that such consent is necessary upon the theory that the crime is a joint one. Our statute (Kirby's Digest, § 1811) provides that "persons marrying who are within the degrees of consanguinity within which marriages are declared by law to be incestuous or void absolutely, or who shall commit adultery or fornication with each other, shall be deemed guilty of incest." The crime of incest is committed by adultery when the accused party is married. The gravamen of the crime of incest is the unlawful carnal knowledge, and it is unlawful because of consanguinity. The object of the statute is to prohibit by punishment the sexual intercourse of those who are related within the prescribed degrees. The intercourse is unlawful because of consanguinity, and without regard to the means by which the intercourse is accomplished. The intent of the male is equally criminal, and his act is equally unnatural, whether the female consents or not. The consent of the female can add nothing to the moral or legal turpitude of the male. The defendant is punished, not because of the act of another, but because of his own evil intent and criminal act. Mr. Bishop in his work on Statutory Crimes, § 660, says: "Where the crime consists of one's unlawful carnal knowledge of another, it is immaterial whether the other participated under circumstances to incur guilt or not." In 10 Am. & Eng. Enc. Law, 341, it is said: "The weight of authority seems to be to the effect that where incestuous fornication is shown to have been committed by defendant in full knowledge of the relationship between himself and the other participant the fact that he may have or did use force in the accomplishment of his object is entirely immaterial, and he may be convicted of the crime of incest notwithstanding." We are of opinion that under our statute where the parties to the sexual intercourse are within the prohibited degrees the male may be convicted of incest, even though he accomplished the act without consent of the female and against her will. Wharton on Criminal Law, § 1751; State v. Ellis, 74 Mo. 385; Mercer v. State, 17 Tex. Ct. App. 452; Porath v. State, 90 Wis. 527, 63 N.W. 1061; People v. Barnes, 2 Idaho 161, 9 P. 532; Smith v. State, 108 Ala. 1, 19 So. 306; Norton v. State, 106 Ind. 163, 6 N.E. 126; Com. v. Bakeman, 131 Mass. 577.

It is urged that the testimony of the witness Annie Martin was not corroborated, and that the defendant can not be convicted of the crime of incest upon her uncorroborated testimony because she is necessarily an accomplice in the commission of the crime. An accomplice has been defined to be one who unites in the commission of a crime and who participates in the criminality of the act. The female upon whom the crime of rape is committed does not participate in the criminality of the act, and is therefore not an accomplice to that crime. And for the same reason the female with whom adulterous intercourse is obtained by force or against her will does not unite with the commission of the crime. She does not intentionally co-operate with or aid in the commission of the criminal act. She is free of guilt, and she is therefore not an accomplice. Her testimony does not require corroboration as a matter of law. Wharton on Criminal Ev., § 440; Bridges v. State, 80 Neb. 91, 113 N.W. 1048; Mullinix v. State, 26 S.W. 504; Whittaker v. Com., 95 Ky. 632, 27 S.W. 83.

It is earnestly contended by counsel for defendant that a prejudicial error was committed in the trial of the case by the improper remarks that were made by the attorney for the State in his closing argument to the jury. The defendant had introduced testimony tending to prove that the members of his family were expecting money upon what they called an "Indian Claim" pending before a department of the United States, and that the prosecuting witness and her mother were anxious for defendant's conviction, so that he could not be free to spend this money. He introduced at the trial several witnesses who testified to contradictory statements made by the prosecuting witness. His most important witness was Tom Delaney, who testified that he overheard a conversation between the prosecuting witness and her husband in an adjoining room, after the alleged commission of the offense charged against the defendant, in which she stated that her father did not commit the crime, and that she on that account was unwilling to give testimony against him, and that her husband in forcible language insisted with threats that she must give the testimony against her father, even if it was false. In the course of his closing argument to the jury the prosecuting attorney said:

"The defendant has produced a mass of perjured testimony. Marshall Causey, Jim Appleby, Epp Potts and Tom Delaney, all are unworthy of belief. You take the witness Tom Delaney, and, bless your heart, Tom Delaney is the biggest liar in this whole country. I tell you, he is a professional witness. He testifies in all the criminal cases in this court. Absolutely, he would not know the truth if he met it in the road."

Defendant at this point objected to the remarks, as being improper argument, and called on the prosecuting attorney to stop until he could make his objections, and appealed to the court, but the prosecutor refused to stop, and proceeded in a very loud tone of voice: "I tell you another very significant fact. Tom Delaney was here all last July term of court, when Gaston was being tried for raping this same daughter of his, and the defendant never put him on the stand as a witness. I tell you, gentlemen, this is a strong circumstance to show his testimony was made up to suit this occasion."

At this point defendant called on the prosecuting attorney to stop until he could make his objections and exceptions, and appealed to the court to compel him to desist from this course of argument; but, before there was any ruling, the prosecutor proceeded in a very loud tone of voice, talking to the defendant's attorney: "Yes, you object. You always object. You can't get along without objecting; but I will tell you you can object till you bawl your head off. I am arguing this case, and I don't want you to butt in."

The defendant asked the court to rebuke the prosecuting attorney and asked that he instruct the jury that his remarks were improper, and should not be considered by them. The court said: "I have already told the jury not to consider anything not in evidence, and I believe they understand it." And: "They will try this case on the law and the evidence, and not on the...