Jackson v. State
| Decision Date | 02 February 1920 |
| Docket Number | 155 |
| Citation | 218 S.W. 369,142 Ark. 96 |
| Parties | JACKSON v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Prairie Circuit Court, Southern District; George W Clark, Judge; affirmed.
Judgment affirmed.
J. G. & Cooper Thweatt, for appellant.
1. The court erred in excluding the evidence of Elsie Thompson that the child was born fully developed. She qualified as an expert. 5 Enc. of Ev., pp. 535, 658; 45 Vt. 29; 56 N.H. 227; 22 Am. Rep. 441; 100 Ark. 232; 117 Id. 8.
2. The court erred in instructing the jury as to reasonable doubt. 39 Ark. 275-280; 111 Id. 457, 465-6.
John D Arbuckle, Attorney General, and Robert C. Knox, Assistant for appellee.
1. There was no error in admitting or excluding evidence. 64 Ark. 523; 94 Id. 75; 36 Kan. 700; 139 U.S. 559; 130 Id. 520; 175 Mo. 161; 108 N.Y. 56; 162 Mass. 556.
2. There is no error in the court's instructions. The date laid in an indictment is immaterial, if prior to the indictment and within the statute of limitation. 18 Ark. 363; 26 Id. 260; 32 Id. 205; 36 Id. 222; 37 Id. 273; 54 Id. 269. The exceptions are saved only en masse. Long v. State, 140 Ark. 413.
Camp Jackson was convicted, under section 2008 of Kirby's Digest, of carnally knowing a female person under the age of 16 years, and from the judgment of conviction has duly prosecuted an appeal to this court.
The prosecuting witness was Aurelia Young, a negro girl, who testified that she lived in Prairie County, Arkansas, with her mother and father; that on the fourth Sunday night in August, 1918, which was the 23rd day of the month, the defendant went home with her from church and on the way home had sexual intercourse with her; that she was not 16 years old at that time; that the defendant had gone with her a good many times before that night, but that he never had intercourse with her before that night or afterwards; that she became pregnant, and then told her mother about the defendant having had intercourse with her.
The mother of the prosecuting witness testified that she was not 16 years of age at the time of the alleged intercourse; that she gave birth to a child on April 18, 1919, and that the child died on the 6th day of May, 1919.
The defendant admitted that he kept company with the prosecuting witness, but denied that he had ever had intercourse with her at any time. His testimony was corroborated to some extent. The evidence adduced for the State, if believed by the jury, was sufficient to convict the defendant.
It was the theory of the defendant that the child was conceived before the 23rd day of August, 1918, and as tending to establish that fact he introduced as a witness Dr. Adams, a white physician, who testified that he had been practicing medicine for eighteen years. The court permitted him to testify as an expert witness. His testimony as abstracted by counsel for the defendant is as follows: "The average time for the birth of a child after conception is 280 days, which is nine calendar months; when a child is born at the regular time, its muscles would be developed, its head would be well developed, its finger nails would be developed, and, if a normal child, its lungs would be well developed; a child born six weeks earlier than the normal time would be an undeveloped child, and not fully matured; its arms wouldn't be well developed; its nails or fingers would not be developed, and it wouldn't cry nor likely live long; five weeks under time would cause an undeveloped child; it is my opinion that a child born six weeks before time might live three or four days; it might live longer and maybe not near so long. "
The defendant also attempted to introduce as an expert witness Elsie Thompson, a negro woman who was present on April 28, 1919, when Aurelia Young gave birth to the child. She said that it had been her business to deliver children for sixteen years, and that she had had training along that line under physicians. She stated, however, that she had never waited on women who had prematurely given birth to children and that she had never seen children of that kind. The court refused to allow her to testify as an expert, and the court's action is assigned as error, calling for a reversal of the judgment.
In Green v. State, 64 Ark. 523, 43 S.W. 973 the court said that the competency of a witness to testify as an expert depends upon either his actual experience with respect to the subject of investigation, or his previous study and scientific research concerning the same, and sometimes on both combined. The...
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