Gerlach v. State

• Decision Date: 10 April 1950
• Docket Number: No. 4603,4603
• Citation: 217 Ark. 102,229 S.W.2d 37
• Parties: GERLACH v. STATE.
• Court: Arkansas Supreme Court

Page 37

229 S.W.2d 37

217 Ark. 102

GERLACH v. STATE.

No. 4603.

Supreme Court of Arkansas.

April 10, 1950.

Concurring Opinion April 24, 1950.

Rehearing Denied May 8, 1950.

Peter A. Deisch and John C. Sheffield, Helena, for appellant.

Ike Murry, Atty. Gen., Robert Downie, Asst. Atty. Gen., for appellee.

HOLT, Justice.

A jury convicted appellant of an assault with intent to rape and fixed his punishment at a term of ten years in the Penitentiary. From the judgment is this appeal.

Appellant has preserved nineteen assignments of alleged errors in his motion for a new trial. His principal defense, if not his only defense, to the commission of the crime, was insanity.

His first three assignments, in effect, question the sufficiency of the evidence to support the verdict. The prosecuting witness, Mabel Reeder, a Negro girl twelve years of age, testified that she had been picking cotton and that at about four o'clock P. M. (October 26, 1948), while she was returning to her home along a highway, appellant drove up in his automobile, got out and asked her if she knew R. C. Little. She answered that she did and pointed out the field where some of her family were still at work. Appellant then took hold of the witness, put his hand over her mouth, threatened to kill her if she cried out, put her on the floor of his car, drove her into some woods nearby, forced her to submit to him and ravished her against her will. He then took her near her home, put her out of his car, and drove away. The child immediately told her mother and grandmother what had occurred. They examined her and found evidence tending to show that she had been ravished. This evidence was legally sufficient to support the jury's verdict, and in fact, would have supported the greater offense of rape. Begley v. State, 180 Ark. 267, 21 S.W.2d 172.

Assignments four and fifteen, in effect, alleged that the court erred in refusing appellant's motion for a continuance made before the trial and again at the close of all the testimony. The court did not err.

This record reflects that the crime was committed October 26, 1948, and appellant indicted May 2, 1949. He was first tried on the charge November 1, 1949 and upon a mistrial being declared, he was again placed on trial November 7, 1949 and found guilty, as above indicated. At the time appellant was indicted (May 2, 1949) he was a patient in the Veteran's Hospital in Memphis. He was released from that institution May 13, 1949 and returned to work for the Pekin Wood Products Company in Helena. He testified (quoting from appellant's abstract) 'that since his operation and return from the Hospital in May, 1949, he has been normal.'

On November 3d, four days before the trial, appellant presented to the trial court his motion, praying for an order 'directed to the Manager of the Regional Office, Veterans Administration, Little Rock, Arkansas, that he be authorized and directed to procure and bring or send to this court immediately, Certified Records of the diagnosis, hospitalization and medical treatment accorded to the defendant, by the Veterans Administration, since the discharge of the defendant from the Army in 1944' and 'that complete diagnosis and medical history be furnished of treatments given to the said Robert L. Gerlach from June 30, 1943 to the time of the discharge from the Army at Hammond General Hospital, Modesta, California in April, 1944. * * * that the only defense which the defendant, Gerlach, has against the crime charged against him, which trial is to be held Monday, November 7th, is that on account of a diseased mind, he did not know that he committed an assault, and that at the time of the alleged commission of the crime, he was insane within the meaning of the statutes governing the case.

'In view of the fact that the physician from the State Hospital undoubtedly is being brought into the trial to testify that he made an examination of the defendant, Gerlach, in January 1949 and further that he was sane at that time, and further that he undoubtedly will testify that the defendant was sane at the time of the alleged commission of the crime, and in view of the defense as above stated, the only means by which the defendant has to defend himself, is to procure from the Veterans Administration the records above prayed, which records contain a complete case history of the defendant as developed in his treatment for a head injury which occurred in the armed forces and subsequently the records of the Veterans Administration will disclose that he was insane at the time of the crime charged.

'It is further moved that this case be deferred or re-set for some subsequent time of trial in the event that it is found that these records cannot be furnished in time for the trial of November 7, 1949.'

It thus appears that approximately six months had elapsed from the date the indictment against appellant was returned and the date of trial, November 7, 1949, and the motion for continuance was not filed until four days before the trial. We think it obvious, in these circumstances, that due diligence was not shown on the part of appellant. We have repeatedly held that in order to secure a continuance, as here, proper diligence must be shown, Bowman v. State, 213 Ark. 407, 210 S.W.2d 798, and that the granting or refusing of such motion is within the sound legal discretion of the trial court and this court will not interfere unless abuse of that discretion is shown. Bailey v. State, 204 Ark. 376, 163 S.W.2d 141. No abuse of discretion was shown.

Assignments 5, 6, 10, 16, 17 and 18, in effect, charged that the court erred in admitting testimony of witnesses, Fannie Mae McKissick and Dorothy Eady, concerning alleged attempts of appellant to rape them.

The record reflects that at the time of the present trial of appellant (November 7, 1949) two other indictments were outstanding against appellant, one charging rape of Fannie Mae McKissick June 7, 1948 and the other charging the same offense against Dorothy Eady December 10, 1948.

The court overruled appellant's objections to the introduction of this testimony and over appellant's exceptions instructed the jury as follows: 'You are instructed that the testimony which has been introduced in this case concerning alleged attacks by this defendant on the State's witnesses, Fannie Mae McKissick and Dorothy Eady, may be considered by you only in determining the intent of the defendant in this case and for no other purpose and you are instructed that this defendant is on trial for the alleged assault upon the State's witness, Mabel Reeder only on October 26, 1948, as alleged in the indictment.'

The court did not err, in the circumstances, in admitting the testimony. We have frequently held that evidence of other crimes of a similar nature to the one on trial and recent in point of time is admissible as bearing upon intent or purpose.

In the recent case of Hearn v. State, 206 Ark. 206, 174 S.W.2d 452, 453, wherein the defendant had been convicted of an assault with intent to rape, we said: 'This court has repeatedly recognized and declared that the evidence of other crimes, recent in point of time, and of a similar nature to the offense then being tried, is admissible as bearing on the question of intent. Some such cases are: Puckett v. State, 194 Ark. 449, 108 S.W.2d 468; Lewis v. State, 202 Ark. 6, 148 S.W.2d 668; Monk v. State, 130 Ark. 358, 197 S.W. 580; Cain v. State, 149 Ark. 616, 233 S.W. 779. These cases involved such offenses as robbery, larceny, homicide, or operating a gambling house. We perceive no good reason why the same rule should not apply to sex crimes; in fact, Courts of other States have held that, in sex crimes, evidence of other acts of a similar nature, recent in point of time, is admissible as bearing on the question of intent.' (Citing cases.)

Appellant next argues that the trial court erred in admitting the following testimony of witness, John Whitney:

'Q. A short time thereafter, did you have occasion to talk to Mabel Reeder, the little girl that was said to have been attacked? A. Yes, sir.

'Q. Where was she at that time? A. Standing in front of her house.

'Q. Whose house? A. Mabel Reeder's mother's house.

'Q. Did she point out to you the woods where this attack is said to have occurred? A. Yes, sir.

'Mr. Sheffield: We object because we have no idea how long this was after the attack occurred.

'The Court: The objection is overruled. The testimony will be permitted going to the venue in the case.

'Mr. Sheffield: Note our exceptions.

'Q. Did she point out the woods where the attack was supposed to have occurred? A. Yes, sir.

'Q. Is that in Phillips County? A. Yes, sir.

'Q. Whose place is it on? A. Vallient Morris'.

'Q. His place is in Phillips County? A. Yes, sir.'

We cannot agree.

The question of venue was also an issue in the case and all of the above testimony could be properly considered on that issue for the purpose of establishing venue.

Appellant says 'all of this evidence was an attempt to corroborate the evidence of the prosecuting witness by hearsay testimony.' Our rule is well settled that the testimony of the prosecuting witness (Mabel Reeder here), who was not an accomplice, need not be corroborated, Bradshaw v. State, 211 Ark. 189, 199 S.W.2d 747.

Whitney's testimony that appellant's attack upon this child had been discussed in his neighborhood was not prejudicial or hearsay in the absence, as here, of any evidence concerning what was said about the crime.

On the question of venue, the prosecuting witness positively testified that the appellant seized her, threw her in his automobile and threatened to kill her if she made an outcry. He did this between the cotton field and her home, both of which were well within the boundaries of Phillips County.

This testimony was sufficient to show that the assault to commit rape was actually begun in Phillips County, and that appellant intended to...