Havens v. State

• Decision Date: 17 April 1950
• Docket Number: No. 4610,4610
• Citation: 228 S.W.2d 1003,217 Ark. 153
• Parties: HAVENS v. STATE.
• Court: Arkansas Supreme Court

Page 1003

228 S.W.2d 1003

217 Ark. 153

HAVENS v. STATE.

No. 4610.

Supreme Court of Arkansas.

April 17, 1950.

L. H. Chastain and R. B. Chastain, Fort Smith, for appellant.

Ike Murry, Attorney General, Arnold Adams, Asst. Atty. General, for appellee.

MILLWEE, Justice.

Appellant was convicted of the crime of sodomy and his punishment fixed at 5 years in the penitentiary. The victim of appellant's alleged perverted lust was a ten-year-old boy.

The first five assignments in the motion for new trial challenge the sufficiency of the evidence to support the verdict and judgment, and allege error in the overruling of appellant's motion for a directed verdict at the conclusion of the State's testimony.

The evidence on behalf of the state is briefly as follows: On the night of October 7, 1949, Jimmy, the 10-year-old lad, a 13-year-old brother and a neighbor boy attended a carnival in the City of Van Buren, Arkansas. Jimmy was fascinated by the 'little ponies' and the employee in charge of the animals permitted the lad to assist him. A 'little car' attraction and a merry-go-round were nearby. Appellant who was in charge of the cars, asked the employee in charge of the ponies if Jimmy had been paid for his work. The lad stated that he wanted no pay. Later, appellant said to the boy: 'Come around later when nobody is around and I will give you some free passes.' The boy returned later in the evening when the carnival grounds were practically deserted. A circular curtain had been placed about the merry-go-round which was closed for the night. Appellant enticed the boy into the merry-go-round on the pretext of obtaining the promised passes. The unsuspecting lad was there restrained and the unnatural act perpetrated against his will. During the course of the bestial transaction appellant bit the boy's penis. Jimmy 'hollered' and appellant 'let go', whereupon the frightened and injured boy ran home and tearfully told his grandmother: 'Oh, the carnival man * * * he ruptured me.' The boy's blood stained underwear was removed and germicides were applied to the broken and bleeding foreskin. Officers were summoned who accompanied Jimmy to the carnival grounds where appellant was identified and taken into custody. The next day a physician found the boy's penis discolored and bruised. The bloody underwear was introduced in evidence at the trial.

Appellant argues that the 10-year-old boy is an accomplice whose testimony is not sufficiently corroborated, under Ark.Stats.1947, Sec. 43-2116, to support the verdict. We have approved the following test generally applied to determine whether one is an accomplice: 'Could the person so charged (as an accomplice) be convicted as a principal, or an accessory before the fact, or an aider and abetter upon the evidence? If a judgment of conviction could be sustained, then the person may be said to be an accomplice; but, unless a judgment of conviction could be had, he is not an accomplice.' Simon v. State, 149 Ark. 609, 233 S.W. 917, 919; Henderson v. State, 174 Ark. 835, 297 S.W. 836. Under Ark.Stats.1947, Sec. 41-112, an infant under 12 years of age cannot be convicted of any crime or misdemeanor. Since a 10-year-old child could not be convicted of sodomy, he cannot be said to be an accomplice. Moreover, the evidence here is that the infant did not voluntarily participate in the unnatural act and did not consent thereto. Hence, his uncorroborated testimony would support a conviction. Woolford v. State, 202 Ark. 1010, 155 S.W.2d 339; Hummel v. State, 210 Ark. 471, 196 S.W.2d 594.

As judges of the credibility of the witnesses, the jury believed the testimony offered by the state and rejected appellant's denial of the truthfulness of such testimony. The evidence was sufficient to convict and the trial court correctly overruled appellant's motion for a directed verdict of not guilty.

The sixth assignment of error is that the court erred in allowing the introduction in evidence of certain pictures without being properly identified and without a proper foundation being laid. Tommy Wilbanks, one of the investigating officers, testified on cross-examination by counsel for appellant that he found several pictures of young boys in appellant's bill-fold when the latter was arrested. Appellant testified that he had no pictures in his possession and denied that he placed them in a letter to be mailed to a person in another state. Vergil Goff, the other arresting officer, then testified that he was present when a letter written by appellant to someone in another state was opened by the chief of police and the pictures removed, and that he read the letter. Appellant objected to testimony concerning the letter on the ground that the...