Henson v. State

• Decision Date: 27 September 1965
• Docket Number: No. 5124,5124
• Citation: 239 Ark. 727,393 S.W.2d 856
• Parties: Phillip H. HENSON, a/k/a Robert Schieck, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 856

393 S.W.2d 856

239 Ark. 727

Phillip H. HENSON, a/k/a Robert Schieck, Appellant, v. STATE of Arkansas, Appellee.

No. 5124.

Supreme Court of Arkansas.

Sept. 27, 1965.

Parker Parker, Russellville, for appellant.

Bruce Bennett, Atty. Gen., by Reg E. Wallin, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Phillip H. Henson, A/K/A Robert Victor Scheick, appellant herein, was charged by Information with the crime of rape, it being alleged that Henson forcibly, violently, and against her will, raped a young woman of the age of 20 years in Yell County on June 8, 1964. The case proceeded to trial on June 30, 1964, and at the conclusion of the evidence, the jury found Henson guilty, and fixed his punishment at life imprisonment. From the judgment entered thereon, Henson brings this appeal. For reversal, appellant relies upon eight points, but inasmuch as we are of the opinion that the judgment must be reversed, a discussion of each alleged error becomes unnecessary.

Let it first be stated that there is ample evidence to sustain the jury finding. The prosecuting witness testified that she met Henson at a talent contest in Dover, and won first prize, which entitled her to sign a recording contract with Nimrod Records (a partnership with which he was connected). Subsequently, according to her testimony, Henson went to her home, and the two left together in an automobile, ostensibly for the purpose of Henson's introducing her to the other partners of the record concern. She testified that he later stopped on a side road, slapped and choked her, pinned her arms behind her, and then proceeded to rape her. The witness stated that he thereafter raped her a second time. Several witnesses verified the fact that her back was skinned and bruised, her neck and throat swollen, and that there were bruises also on her waist, legs and breasts. Dr. Douglas Lowrey of Russellville, who examined the prosecuting witness, testified that the hymenal ring had been torn within eight to twelve hours previous to his examination; that nemerous spermatozoid were observed through a microscope in secretions inside the vagina. He likewise stated that she was bruised on both shoulders and the left thigh. The doctor was also of the opinion that she had been a virgin, stating,

'The hymenal ring had definitely been penetrated shortly before I saw this girl. There's no question about that. As to whether or not it had been penetrated before, I could not say absolutely and without any question. I would say, however, that from the appearance at that time, that it did not ever--it did not indicate that it had ever been penetrated before.'

Henson admitted having intercourse with the prosecuting witness, but insisted that it was done with her consent. This conflict of evidence, of course, was for the jury to determine. The evidence was definitely sufficient to support the jury's findings.

Appellant asserts that the court erred in not granting a motion for change of venue. It is sufficient to state that no proper showing was made that appellant could not obtain a fair trial in Yell county, and the trial court did not abuse its discretion in refusing to grant the motion.

It is also alleged that the court committed reversible error in permitting Dr. Walter Harris, of Danville, to testify. This alleged error is predicated on appellant's contention that Harris' testimony was based on privileged communications between the doctor and Henson. On June 14, 1964, a petition was filed on behalf of appellant, asking that he be committed to the State Hospital for a 30-day period of observation. The court then ordered that Henson be examined by two doctors, one of which was Dr. Harris. Subsequent to an examination made by Harris, the motion was withdrawn, but the examination had already been made. Dr. Harris testified that, from his examination, it was his opinion that Henson was a sexual psychopath, and the doctor then stated that 'a sexual psychopath is an individual, neither insane nor mentally deficient, but in a state of mental apprehension that renders him unable to control the impulses in sex offenses.' Dr. Harris testified, 'A patient suffering from this disorder may obtain partners either willingly or by force, fraud or some other method, and I think that they could be dangerous.' We do not agree with the contention that the admission of this testimony constituted error. In 58 Am.Jur., Section 418, Page 239, it is stated that privilege does not attach when a consultation with, or examination by, a physician is not for the purpose of treatment, but rather for some individual purpose known to the person examined.

'It follows that a physician who at the direction of a prosecuting attorney or a court makes an examination of a defendant for the purpose of determining his physical condition is competent to testify regarding the information he gained if he does not assume to act as the physician for the defendant or proffer to the latter his professional aid.'

In City and County of San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26, 25 A.L.R.2d 1418, Justice Traynor, speaking for the court, stated:

'The confidence that is protected is only that which is given to a professional physician during a consultation with a view to curative treatment; for it is that relation only which the law desires to facilitate.' ¹

Likewise, in State v. Fackrell, 44 Wash.2d 874, 271 P.2d 679 (Wash.), quoting from State v. Winnett, 48 Wash. 93, 92 P. 904, it is said:

'There is nothing here tending to show that the relation of physician and patient existed between them, or that any confidential relation whatever existed. The record does not indicate, but, presumably, the examination was made at the instance of the state, and was made for the purpose of publishing the result of the examination. No confidential relation appears to be violated. The case does not come within the spirit or reason of the law which prohibits physicians from giving information acquired in attending a patient, and no error was committed in admitting the testimony objected to.'

It is urged that the court erred in failing to quash the warrant of arrest, since the appellant was arrested without a warrant. This did not constitute error. Our statute (Ark.Stat.Ann. 43-403) permits a peace officer to make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony. We think the evidence obtained by Sheriff Brinkman in his investigation on the night of June 8 clearly indicated that the prosecuting witness had been raped, and that the officer had reasonable grounds for believing that appellant had committed the offense.

We are of the view that prejudicial error was committed by the court in permitting two young women to testify for the state on rebuttal. The circumstances were as follows: In an effort to establish his good character, appellant offered the testimony of Carol Jan Gray, Ann Page (both by deposition), and Mollie Mayhan. Miss Gray testified that she had been alone with appellant at times, and that he had never made any improper advances toward her. Miss Page testified that she took guitar lessons from Henson, and that he had never made any improper advances. Miss Mayhan stated that she had worked as a babysitter for Henson and his wife for about two and a half months, and that appellant had never made any advances toward her. Over objection, the court then permitted the state to offer in rebuttal (to the evidence of Misses Gray, Page and Mayhan) the testimony of the two young women mentioned in the opening sentence of this paragraph. One testified that Henson, whom she had just met, had asked her to go to Little Rock with him for the purpose of making a record; that appellant raped her twice on this trip, but that it was never reported to the authorities because she did not want to 'get in a scandal.'

The other young woman testified that appellant also raped her in an automobile after placing a knife to her throat. All of this testimony--both on the part of the defense and the state--was inadmissible. In 20 Am.Jur., under 'E...