King v. State

• Decision Date: 13 January 1913
• Citation: 152 S.W. 990,106 Ark. 160
• Parties: KING v. STATE
• Court: Arkansas Supreme Court

152 S.W. 990

106 Ark. 160

KING v. STATE

Supreme Court of Arkansas

January 13, 1913

Appeal from Sevier Circuit Court; Jeff T. Cowling, Judge; affirmed.

Affirmed.

No brief filed for appellant.

Hal L Norwood, Attorney General, and William H. Rector, Assistant for appellee.

The action of the trial court in refusing to require the prosecuting witness to answer the question whether or not she had ever had intercourse with any other man than the defendant, was correct. In a prosecution for carnal abuse the chastity of the prosecuting witness is not in issue, but if it were so, it would be improper to require her to testify to matters that would tend to incriminate or disgrace her. 15 Ark. 624; 93 Ark. 260.

OPINION

SMITH, J.

The defendant, who was a boy just past sixteen years of age, was indicted and convicted for the offense of carnally knowing one Esther Smith, a female under the age of sixteen years, and was given a sentence of two years in the penitentiary upon the verdict of the jury assessing his punishment at imprisonment for that time.

The appellant has not favored us with a brief, but the case has been fully abstracted by the Attorney General and the motion for a new trial set out in full in his brief. Three of the grounds for a new trial relate to the sufficiency of the evidence, but we think there was a sufficiency of legal evidence to sustain the verdict.

The only question raised by the motion for a new trial which we regard as of sufficient importance to discuss, was the refusal of the court to permit the prosecuting witness, Esther Smith, upon her cross examination to answer the question whether she had had sexual intercourse with men other than the defendant, the exact question and the ruling of the court being as follows:

Q. Is this young man, King, the only young man whom you ever had sexual intercourse with?

A. The court: "Don't answer that."

In our opinion, this question might have elicited competent evidence and the witness should have been permitted to answer the question in view of the circumstances of this case. The evidence of the girl tended to show that she was under the age of sixteen years; that defendant induced her to leave her home under the promise that he would go with her to Nashville and marry her, and she says she met the defendant in the woods and yielded to him and that he then left her, promising that he would later redeem this promise and assigned as his reason for not redeeming it at the time that he had promised his mother to be at home by 11 o'clock, and this excuse was apparently satisfactory, when he assured her he would later redeem his promise, which promise and offer had been made for the first time on the day before. The defendant denied that he had promised to marry the girl or that he had induced her to leave her home and denied having had sexual intercourse with her. The age of the girl was also questioned, but the verdict of the jury concludes all doubt upon that issue. The evidence tends to show that if there was a meeting between defendant and the girl, it was for the purpose of keeping an assignation, and not for the purpose of leaving home to be married to him. The answer to the question which was excluded by the court might have thrown some light upon the object of the meeting, and, if so, it would have been competent for the jury to have considered in determining the punishment to be imposed. While it would have been no defense that defendant was merely keeping an assignation, he would have been entitled to the benefit of any evidence which would have shown that he had committed no greater offense. Certainly in assessing the amount of punishment, a jury might consider and be influenced by the circumstances under which the meeting took place. If defendant had induced a virtuous, trusting girl to leave her home under the promise of marriage and had taken advantage of the circumstances in which she was placed, by her reliance upon his promise, certainly he would have deserved a severer sentence than would a boy, who had met by appointment a girl not unacquainted with the object of the meeting. The lowest punishment for this offense is imprisonment for one year in the penitentiary, and the fact that defendant was given a sentence for twice that length of time indicates that prejudice to the defendant might have resulted from the exclusion of this question and answer, and the case would have to be reversed, if defendant was in position to show that prejudice resulted from the exclusion of the question.

Moreover, under the circumstances, the question asked the witness upon her cross examination was a proper one. The right of cross examination is not a privilege to turn the searchlight of inquiry upon all the indiscretions of a witness' past life, but it is a right which must be exercised within reasonable limitations and subject to some extent to control under the discretion of the trial judge. The question asked should have some immediate relation to the subject under inquiry and should be of such a nature as to show whether or not the witness was entitled to be believed. Such evidence is ordinarily called impeachment by cross examination, and when permissible for that purpose, the inquiry should relate to such subjects as would influence the judgment of an unbiased person, as a juror is supposed to be, in determining whether or not the witness is entitled to be believed and has probably told the truth upon the witness stand. When such questions relate to specific acts in the life of the witness, they should be confined to such matters, in point of time, as that a reasonable inference would likely flow from an admission, on the part of the witness, that he was not entitled to be believed, or that necessarily impaired his credit.

For instance, in the case of McAlister v....