Jackson v. State

• Decision Date: 25 October 1909
• Citation: 122 S.W. 101,92 Ark. 71
• Parties: JACKSON v. STATE
• Court: Arkansas Supreme Court

122 S.W. 101

92 Ark. 71

JACKSON v. STATE

Supreme Court of Arkansas

October 25, 1909

Appeal from Monroe Circuit Court; Eugene Lankford, Judge; reversed.

Judgment reversed and cause remanded.

H. A Parker, for appellant.

1. When the prosecutrix in a rape case is a woman of immoral or unchaste character, the jury should consider this fact for two purposes: (1) It goes to her credibility, and (2) the jury may consider it as tending to show consent. 66 Ark. 523; 12 L. R. A. (N. S.) 1153; 1 Wigmore on Ev., §§ 199-200; 3 Rice on Ev., p. 605; 5 A. & E. Enc. L. 871, 851-C 853; 40 Tex. 486; 17 Tex.App. 301, 532; 20 Id. 155; 3 Hill N. Y. 309; 36 Cal. 522; 40 Ark. 486-7; 27 Mich. 134.

2. It was error to refuse the seventh and eighth prayers of defendant. It was the duty of the prosecutrix to make an outcry. 23 A. & E. Enc. L. 862; 65 Am. Dec. 516; 1 Col. App 232; 1 Hale, P. C. 635; 77 Ga. 705; 71 Ind. 49; 11 Iowa 401; 46 N.C. 18; 79 S.W. 558; 87 Id. 350.

3. When a woman is of bad character as to chastity, resistance, force, consent and complaint in proper time is extremely essential, and the jury should be properly charged on these lines. 23 A. & E. Enc. L., 860, 861 and 100 cases cited.

4. The friendly relations afterward should have been considered. Ib.

Hal L. Norwood, Attorney General, and C. A. Cunningham, Assistant, for appellee.

1. Proof of the immoral character of the prosecutrix is not admissible to affect the credibility of the witness, but only on the question of consent. 66 Ark. 523; 3 Rice on Ev., art. 820-1.

2. The sixth instruction as to outcry was properly refused. 73 Ark. 407.

3. The seventh and eighth prayers by defendant, while perhaps good as a general proposition, are unwarranted by the testimony.

OPINION

HART, J.

Sam Jackson was indicted, tried before a jury, and convicted of the crime of rape in the Monroe Circuit Court. The case is here on appeal.

Counsel for appellant assigns as error the refusal of the court to give the following instruction:

"The court instructs the jury that if they find from the testimony that the victim or prosecutrix is a woman of immoral character the jury should consider this fact for two purposes: (1.) It goes to her credibility as a witness. (2.) The jury may consider it upon the question of consent."

This instruction was based upon the evidence adduced at the trial tending to show that the prosecutrix was a woman of unchaste character. The instruction was properly refused in the form in which it was presented. Her reputation for chastity may not be put in issue to shake her credit as a witness, but only to show her consent, and so no rape. Her credit as a witness may be impeached by evidence that her general reputation for truth or immorality renders her unworthy of belief, but not by evidence of particular wrongful acts. The reason for admitting evidence concerning her chastity is that a jury might more readily infer assent to the intercourse in an unchaste woman than in a virtuous one. Hence the instruction was not correct in the form in which it was presented. Maxey v. State, 66 Ark. 523, 52 S.W. 2; State v. Stimpson (Vt.), 1 L.R.A. (N.S.) 1153; 1 Wigmore on Evidence, §§ 199 and 200; 3 Rice on Evidence, p. 605.

Appellant under the authorities supra was entitled to an instruction on the bad reputation of the prosecutrix for chastity as affecting the question of her consent. But it was the duty of appellant to ask a correct instruction. Mabry v. State, 80 Ark. 345, 97 S.W. 285; Allison v. State, 74 Ark. 444, 86 S.W. 409 and cases cited; Snyder v. State, 86 Ark. 456, 111 S.W. 465; Western Coal & Mining Co. v. Burns, 84 Ark. 74, 104 S.W. 535.

Counsel for appellant urges upon us a reversal because the court refused to give the following instruction: "The court instructs the jury that it was the duty of Estella Williams, when she thought a rape was about to be committed on her, to make an outcry. And that if she failed to do so the jury can consider this fact as showing want of resistance." The court properly refused the instruction in the form in which it was presented. The prosecutrix testified that the rape occurred in the night time at a place she believed to be remote from human habitation, and that her resistance was overcome through fear. Appellant testified that the intercourse was voluntary. Hence it can not be said that it was the duty of the prosecutrix to make an outcry; for this would have invaded the province of the jury in expressing an opinion on the evidence. If a proper instruction on the question had been asked, the court should have told the jury that the failure to make an outcry might be considered by the jury, in connection with the other facts and circumstances adduced in evidence, as tending to show want of resistance.

Counsel for appellant also complains that the court refused to instruct the jury as follows:

"7. The court instructs the jury that if they find from the evidence that Estella Williams failed to make complaint immediately after the alleged commission of said offense, the jury may consider this upon the matter as to whether she gave her consent or not.

"8. The court instructs the jury that, if they find from the evidence in this case that the defendant and the prosecutrix remained friendly for some time after the alleged outrage, this can be considered whether the sexual intercourse was by consent or not."

These instructions, or one of similar import, should have been given. 23 Am. & Eng. Ency. of Law (2d Ed.), pp. 862 and...