Hunt v. State

• Decision Date: 28 September 1914
• Docket Number: 132
• Citation: 169 S.W. 773,114 Ark. 239
• Parties: HUNT v. STATE
• Court: Arkansas Supreme Court

169 S.W. 773

114 Ark. 239

HUNT v. STATE

No. 132

Supreme Court of Arkansas

September 28, 1914

Appeal from Greene Circuit Court, Second Division; W. J. Driver Judge; affirmed.

Judgment affirmed.

Lamb & Caraway, for appellant.

1. The court erred in its charge to the jury defining the crime of assault with intent to commit rape, in omitting from such definition the necessary element of present ability to commit the offense. Under the rule prevailing in this State, there can be no assault without, first, an attempt, and, second present ability to carry the attempt into effect. Kirby's Dig., § 1583; Id., § 2009.

The crime of rape can not be committed by one not legally or physically able to commit the offense. Where one is impotent either as a presumption of law because of his youth, or because of some permanent or temporary disability, can not, during the existence of such disability, be guilty of rape. 1 Wharton's Crim. Law (9 ed.), § 552; 2 Bishop's New Crim. Law, § 1116.

In jurisdictions where an assault is defined to be an attempt, coupled with "present ability" to commit the offense, an impotent man can not be convicted of the crime of assault with intent to commit rape. 49 Ark. 179; 77 Ark. 37; 38 N.W. 440-442, 443; 18 Ala. 521; 1 Wharton, Crim. Law (9 ed.), § 552; 51 P. 818.

2. The court erred in requiring appellant to testify with reference to his arrest and conviction in Randolph County. Kirby's Dig., § 3138; 70 Ark. 272; Id. 107; 79 Ark. 347; 100 Ark. 199; 103 Ark. 28; 78 Ark. 284.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. Impotency is a defense against a charge of committed rape, but it is not a defense where the charge is assault with intent to commit rape. 2 Pick. (Mass.) 380; 127 Ia. 689; 32 Ind. 220; 38 N.W. 440; 2 Bishop, New Crim. Law, §§ 737, 738.

2. There was no error in requiring appellant to testify in reference to his arrest and conviction in Randolph County. He had testified in his own behalf, and, on cross-examination, the State had the right to inquire into his arrest and conviction. 100 Ark. 199-202.

OPINION

MCCULLOCH, C. J.

This is an appeal from the judgment of conviction of the crime of assault with intent to commit rape. Appellant was seventy-four years of age at the time the crime was alleged to have been committed, and the accusation is that the assault was made upon a young woman in the city of Paragould.

The testimony is conflicting, but is sufficient to warrant the finding that he made the assault with intent to have carnal knowledge of said female forcibly and against her will.

The evidence of the injured female is that she resisted successfully, and that the appellant finally desisted before the consummation of the enforced act of intercourse.

Appellant's testimony tended to show that on account of his extreme age and failing powers, he had lost all desire for sexual intercourse, and was physically unable to consummate such an act. In the trial of the case, his attorney asked the court to give an instruction to the jury to the effect that the offense was not complete unless the accused was capable of consummating the act of intercourse--in other words, that impotency was a defense to the charge of assault with intent to commit rape.

Our statute defines an assault as "an unlawful attempt, coupled with present ability to commit a violent injury on the person of another." Kirby's Digest, § 1583. That definition has been applied by this court in determining the essential elements of the crime of assault to commit murder, the court holding that "both the intention and the ability to commit a battery are necessary to constitute an assault." Pratt v. State, 49 Ark. 179, 4 S.W. 785.

Professor Wharton, in his work on Criminal Law (eleventh edition, Vol. 1, § 690), lays down the rule broadly that impotency is a sufficient defense to an indictment for the consummated crime of rape, though not for an assault with intent to rape.

In another part of the same volume (section 223), he says: "If there be juridical incapacity for the consummated offense (e. g. infancy), there can be no conviction of the attempt; and, therefore, a boy under fourteen can not, according to the prevalent opinion, be convicted of an attempt to commit a rape, as principal in the first degree. It is otherwise when the incapacity is merely nervous or physical. A man may fail in consummating a rape from some nervous or physical incapacity intervening between attempt and execution. But this failure would be no defense to the indictment for the attempt. At the same time there must be apparent capacity."

Mr. Bishop also lays down the rule that impotency is no defense to the charge of assault with intent to commit rape.

The decisions on this subject are neither abundant nor clear, but we are convinced that the rule stated above by the learned text writers is the sound one, and that mere impotency on...