Hamm v. State

• Decision Date: 22 November 1948
• Docket Number: 4534
• Citation: 214 S.W.2d 917,214 Ark. 171
• Parties: Hamm v. State
• Court: Arkansas Supreme Court

214 S.W.2d 917

214 Ark. 171

Hamm v. State

No. 4534

Supreme Court of Arkansas

November 22, 1948

Appeal from Pulaski Circuit Court, First Division; Gus Fulk, Judge.

Affirmed.

Ralph Morrow, for appellant.

Guy E. Williams, Attorney General, and Oscar E Ellis, Assistant Attorney General, for appellee.

OPINION

Smith J.

Appellant was found guilty of the crime of rape, and was given a life sentence in the penitentiary and this appeal is from that judgment.

This case is companion to the recent case of Palmer v. State, 213 Ark. 956, 214 S.W.2d 372, where the circumstances under which the crime was committed are recited. In the Palmer case, supra, one of the principal questions involved was the admissibility of an alleged confession made by Palmer. In the instant case there was no confession, but the woman assaulted identified appellant as her assailant.

It is strongly urged that the identification was not sufficiently definite to sustain the conviction. Upon the question of identification, the testimony here, as in the Palmer case, is that on the night of October 19, 1947, the prosecuting witness and her male companion were riding in an automobile and stopped when a tire sustained a puncture. The woman remained seated while the man got under the car to inspect the tire. At that time two Negro men, armed with pistols, approached them and robbed them. This statement is copied from the opinion in the Palmer case, and the same testimony was offered in the instant case. The Negro men ostensibly offered to assist in changing the tire, and in so doing Palmer held a flashlight which enabled the woman assaulted to see appellant's face "plain, very plain." She testified that while being assaulted she saw appellant's face distinctly, and that she is not mistaken and cannot be as to his identity. She testified that when she saw appellant in the jail she recognized his voice. Now the woman's companion was unable to identify positively either of the Negroes except as to their size and build, but he did not have the same opportunity to see appellant that the woman assaulted had. The truth of her testimony was of course a question for the jury, but in view of her identification in a manner positive and unequivocal, we cannot say that appellant's identity as her assailant was not sufficiently proved.

It is insisted that proof of force was not shown. It is recited in the Palmer case, supra, and the same testimony was offered in the instant case that "while Hamm (appellant) held the man at the point of a gun Palmer raped the woman. Then Palmer held the gun on the man while Hamm raped the woman. In each instance her resistance was overcome by fear of the firearm." It is true the woman made no outcry. But the person who might otherwise have come to her rescue was restrained at the pistol point. The woman testified that she was in great fear, and well she may have been, for no experience could be more terrifying. It was said in the case of Threet v. State, 110 Ark. 152, 161 S.W. 139, that: "If she (the woman assaulted) failed to resist, or to make outcry, because she feared for her safety, the crime was against her will and was rape."

The defense interposed was that of an alibi and if this testimony had been believed it showed that appellant was not at the scene of the crime at the time of its commission. The principal testimony in support of this defense was given by Lela Keown, whose testimony was that appellant was with her at the time the testimony shows the crime was committed which was near, or shortly after midnight. The witness testified that she and appellant were engaged to be married, and her testimony evidently was not believed. In the cross-examination of this witness and of appellant as well, a circumstance was developed which was not without significance. It was appellant's custom to spend Sunday afternoon with his fiancee. He did not spend the Sunday...