Hummel v. State

• Court: Arkansas Supreme Court
• Writing for the Court: Ed. F. McFaddin, Justice.
• Citation: Hummel v. State, 196 S.W.2d 594, 210 Ark. 471 (Ark. 1946)
• Decision Date: 14 October 1946
• Docket Number: 4421
• Parties: Hummel v. State

196 S.W.2d 594

210 Ark. 471

Hummel v. State

No. 4421

Supreme Court of Arkansas

October 14, 1946

Appeal from Pulaski Circuit Court, First Division; Lawrence C Auten, Judge.

Affirmed.

Fred A. Isgrig and John S. Gatewood, for appellant.

Guy E. Williams, Attorney General, and Earl N Williams, Assistant Attorney General, for appellee.

OPINION

Ed. F McFaddin, Justice.

Appellant was convicted of the crime of sodomy for having unnatural sexual relations with the prosecuting witness, a married female seventeen years of age. The questions herein discussed are among the twenty-seven assignments of error contained in the motion for new trial.

I. Was the Prosecuting Witness an Accomplice? Appellant asked an instruction to the effect that the prosecuting witness was an accomplice and that appellant could not be convicted on her uncorroborated testimony. This instruction was refused, but the court gave the following instructions numbered 5 and 6 at the request of appellant:

"No. 5. If you find that" the prosecuting witness "willingly and of her free will and consent and without deception on the part of the defendant had the relations with him with which he is charged in the indictment, then she would be an accomplice and you cannot convict upon the uncorroborated testimony of an accomplice.

"No. 6. You are instructed a conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof."

The trial court was correct. If the prosecuting witness was an accomplice, then her testimony had to be corroborated to sustain a conviction. If the prosecuting witness was not an accomplice, then her testimony did not have to be corroborated to sustain a conviction. The rule is well established that, unless the testimony shows conclusively that the prosecuting witness is an accomplice, then the question of whether such witness is an accomplice, is a mixed question of law and fact and is properly submitted to the jury. Edmonson v. State, 51 Ark. 115, 10 S.W. 21; Melton v. State, 43 Ark. 367; Norris v. State, 168 Ark. 151, 269 S.W. 46.

In Strum v. State, 168 Ark. 1012, 272 S.W. 359 (a sodomy case), the record showed conclusively that the prosecuting witnesses (two boys) did consent to the act of sodomy; so it was held that their testimony had to be corroborated. In the case of Smith v. State, 150 Ark. 265, 234 S.W. 32 (a sodomy case), the evidence showed that the prosecuting witness did not consent; so her evidence did not have to be corroborated. Also, in Woolford v. State, 202 Ark. 1010, 155 S.W.2d 399, the evidence showed that the prosecuting witness did not consent, so his testimony did not have to be corroborated. We there stated:

"Finally, it is stated that appellant could not be convicted upon the uncorroborated testimony of the boy, because the latter was an accomplice. Strum v. State, 168 Ark. 1012, 272 S.W. 359. A complete answer to this argument is that the injured boy was not an accomplice within the meaning of § 4017 of Pope's Digest, or in any other sense, as he did not consent."

Appellant was a practicing physician. The prosecuting witness went to him for treatment, which he agreed to undertake. Thus, there existed a most confidential relationship -- that of physician and patient. Herzog on Medical Jurisprudence, § 96 states: "Fiduciary relationship between physician and patient. It is said that the relation of a physician to his patient is one of highest trust and that the physician must act with the utmost good faith."

See, also, 41 Am. Juris., p. 192; 48 C. J., p. 1111, and 13 C. J., p. 408.

The prosecuting witness swore that appellant committed the crime of sodomy on her while he was treating her. She said:

"I didn't consent. He said it was necessary."

In view of the physician-and-patient relationship existing between appellant and the prosecuting witness at the time, and in view of her testimony, as just quoted, we hold that a fact question was made for the jury as to whether or not the prosecuting witness "willingly and of her own free will and consent and without deception on the part of defendant" submitted to the crime of sodomy upon her.

As stated by the Georgia Court of Appeals in the case of Perryman v. State, 63 Ga.App. 819, 12 S.E.2d 388:

"One who voluntarily participates in an unnatural act of sexual intercourse with another is also guilty of sodomy. One who does not so participate is not guilty. 'Voluntary' as defined in Webster's International Dictionary (1922) means 'proceeding from the will; unconstrained by interference; unimpelled by another's influence; spontaneous'."

The court correctly submitted to the jury the question of whether the prosecuting witness was an accomplice; and the verdict of the jury settled that factual question in the negative.

II. Testimony of Alleged Acts of Sodomy with Another Female Witness. The trial court permitted the State to introduce testimony concerning a similar act alleged to have been committed by appellant with another female. Appellant's counsel objected to this evidence, framing the objection in these words:

"In addition to the general objection, it is objectionable specifically in that it is proof of another crime and is highly prejudicial to the defendant. It is proof of another crime alleged to have been committed six months prior to the offense on which he is being tried, and with . . . a different individual."

The trial court limited the testimony of the other act of sodomy by this instruction to the jury:

"You are instructed...