Kazzee v. State

• Decision Date: 07 November 1927
• Docket Number: (No. 299.)
• Citation: 299 S.W. 354
• Parties: KAZZEE v. STATE.
• Court: Arkansas Supreme Court

299 S.W. 354

KAZZEE v. STATE.

(No. 299.)

Supreme Court of Arkansas.

November 7, 1927.

Rehearing Denied November 28, 1927.

Appeal from Circuit Court, Randolph County; John C. Ashley, Judge.

Andrew Kazzee was convicted of the crime of carnal abuse, and he appeals. Affirmed.

Geo. H. Steimel, of Running Lake, and John L. Bledsoe, of Pocahontas, for appellant.

H. W. Applegate, Atty. Gen., and John L. Carter and Darden Moose, Asst. Attys. Gen., for the State.

SMITH, J.

Appellant was tried and convicted on an indictment charging him with the crime of carnal abuse, alleged to have been committed by carnally knowing Matilda McDaniel, a female 15 years of age. For the reversal of this judgment, appellant assigns as error the rulings of the court in admitting and in excluding certain testimony. It is also insisted that the testimony is not sufficient to support the conviction.

The prosecutrix testified that she was 15 years of age, and that appellant had had carnal knowledge of her. This testimony is itself sufficient to support the conviction, as corroboration thereof was not required. Seaton v. State, 151 Ark. 240, 235 S. W. 794; Ragsdale v. State, 132 Ark. 210, 200 S. W. 802; Bond v. State, 63 Ark. 504, 39 S. W. 554, 58 Am. St. Rep. 129.

Lillian Etchason was called as a witness for appellant, and was asked if Matilda McDaniel had told her what her age was, and an objection to this question was sustained. Truman Cox, another witness called by appellant, was asked the same question, and was also asked how old the prosecutrix said she was, and an objection to this question was also sustained. Nettie Taylor, another witness called by appellant, was asked if she knew the age of the prosecutrix, and an objection to this question was sustained.

It sufficiently answers these assignments of error to say that no offer was made to show what the answers of the witnesses to these questions would have been, had the court permitted the witnesses to answer. In the case of Adams v. State, 160 Ark. 405, 254 S. W. 832, it was held that (to quote a syllabus):

"The error of refusing to permit defendant to ask a question on cross-examination of a state's witness will not be considered on appeal, where it does not appear in the record what the answer would have been."

See, also, Dunham v. State, 169 Ark. 257, 275 S. W. 325; Herring v. State, 170 Ark. 352, 280 S. W. 353.

Another witness for appellant was asked what the reputation of the prosecutrix was and an objection to that question was sustained. Concerning such testimony—that is, the reputation of the prosecuting witness— it was said in the case of Gray v. State, 125 Ark. 272, 188 S. W. 820, that:

"Such fact, however, is no defense against the act of intercourse, if the girl was in fact under the age of 16, and while the jury had the right to consider the character and reputation of the girl in weighing her evidence on the subject of her age, as well as that of intercourse, the jury has passed upon her evidence, and we cannot say it is not legally sufficient to support the verdict, and, if her evidence is believed, she was under the age of 16 at the time of the intercourse."

But there was no offer here to show what the answer of the witness would have been.

Certain other witnesses were asked questions which tended to impeach the testimony of the prosecutrix, one of these being whether the prosecutrix had ever stated to the witnesses that appellant had never had sexual intercourse with her, but that she was going to force him to marry her. There was a failure here, as in the cases of the other questions, to show what the answers of the witnesses would have been. There was also a failure to lay a proper predicate for the last questions, by first asking the prosecuting witness herself whether she had made the statements in question.

A witness may be impeached by showing that he had made prior statements contradicting the testimony given at the trial; but, as was said in the case of ...