Kurck v. State

• Decision Date: 12 November 1962
• Docket Number: No. 5045,5045
• Citation: 362 S.W.2d 713,235 Ark. 688
• Parties: Clinton KURCK, Appellant, v. The STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 713

362 S.W.2d 713

235 Ark. 688

Clinton KURCK, Appellant, v. The STATE of Arkansas, Appellee.

No. 5045.

Supreme Court of Arkansas.

Nov. 12, 1962.

Rehearing Denied Dec. 17, 1962.

Lightle & Tedder and Jack M. Lewis, Searcy, for appellant.

J. Frank Holt, Atty. Gen., by Milas H. Hale, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Appellant, Clinton Kurck, was charged by information with the crime of Rape, it being alleged that on November 6, 1961, he assaulted and raped one Phyllis Carlton. Appellant filed a motion to dismiss the information, asserting that the court had no jurisdiction over the area wherein the alleged crime was committed, due to the fact that such lands were acquired by the United States on August 18, 1959, and jurisdiction over the territory had been ceded to the United States by the State of Arkansas, pursuant to Section 10-1103, Ark.Stats.Anno. The motion was overruled by the court, and on trial, the jury found appellant guilty of the crime of Assault with Intent to Rape, and fixed his punishment at four years' confinement in the Arkansas State Penitentiary. From the court's judgment so entered, appellant brings this appeal. For reversal, appellant relies upon five points, as follows:

I

The court has no jurisdiction for the reason that the scene where the alleged crime was committed had been condemned and taken by the United States Government on August 18, 1959, and under Arkansas Statute 10-1103, which was then in effect, all jurisdiction of the State had been ceded to the United States Government.

II

The defendant was entitled to examine the jury panel on voir dire as to their conscientious belief as to the death penalty.

III

The court erroneously refused defendant's instruction No. 1 and instructed the jury as to the crime of assault to commit rape--the intercourse being admitted.

IV

The court erred in permitting leading questions by the State.

V

The court erred in refusing defendant's requested instruction No. 2 relative to prosecutrix's duty to make an outcry.

We proceed to discuss each alleged error in the order listed by the appellant.

I

In 1939, the Legislature enacted Act 327 which appears in Volume 2, Ark.Stats.Anno. (1947) as Section 10-1103. That section reads as follows:

'The consent of the State of Arkansas is given to the acquisition by the United States by purchase or condemnation with just compensation or by grant or otherwise, of such lands in the State of Arkansas as in the opinion of the federal government may be needed for the construction of dams, reservoirs, floodways, locks, canals, hydro-electric power plants, channel improvements, channel diversions, and for such other works as may be necessary for the control of floods, the development of hydro-electric power, the irrigation of lands, the conservation of the soil, recreation, and other beneficial water uses, and the jurisdiction of this state within and over all grounds thus acquired by the United States within the limits of the State of Arkansas is hereby ceded to the United States. Provided, that this grant of jurisdiction shall not prevent execution of any processes of this State, civil or criminal, on any person who may be on said premises.'

Title 40 U.S.C.A., § 255, deals with the acquisition by the United States of jurisdiction over lands to which it has acquired title for various purposes. ¹ Pertinent portions read as follows:

'Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.'

In 1959, the Arkansas General Assembly passed Act 256 ^1-a [§ 10-1127 through 10-1129, 1961 Supp.], which had the effect of repealing Section 10-1103, since the provisions of 10-1103 and 10-1127 and 10-1128 are in conflict. ² This, of course, is known as 'repeal by implication'. The act, inter alia, provides that the United States, through a duly authorized department, agency, or officer, shall file a notice of intention to acquire legislative jurisdiction, with the Governor. 'The notice shall contain a description adequate to permit accurate identification of the boundaries of the land or other area for which the change in jurisdictional status is sought and a precise statement of the measure of legislative jurisdiction sought to be transferred.'

The Governor then makes his recommendations, together with those of the Attorney General, to the next session of the General Assembly 'which shall be constitutionally competent to consider the same'. Further, the Chief Executive shall cause duly authenticated copies of the notice and act to be recorded in the office of the Recorder of the county where the land or other area affected by the transfer of jurisdiction is situated.

Appellant calls attention to the fact that in our first act [10-1103], there was no provision for specific or additional action on the part of the state, or the United States, before jurisdiction passed to the federal government. Appellant says, 'The statute unequivocally and without any attempt at providing a method whereby the United States might acquire jurisdiction for criminal purposes automatically ceded all jurisdiction over the lands.' Appellant then points out that the United States filed its Declaration of Taking in the United States District Court on August 18, 1959, ³ and, under his view, at that time, jurisdiction over these particular lands passed to the United States Government. Appellant emphasizes that this taking occurred before the effective date of Act 256 of 1959 [10-1127 through 10-1129, 1961 Supp.], and, accordingly, argues that jurisdiction over the premises where this alleged offense took place, was in the United States Government on November 6, 1961, the time of the occurrence complained of. It is not really necessary to discuss which state statute was in effect at the time of the alleged offense, for appellant's argument is fallacious from another standpoint. The portion of Title 40, Section 255, heretofore quoted, provides that the head or other authorized officer of the government agency may accept jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor or such other manner as prescribed by the laws of the state; further, 'unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed ⁴ that no such jurisdiction has been accepted.' It is, thus, apparent that, even though Section 10-1103 was the effective state act at the time of the taking, still under Title 40, the United States Government had not accepted jurisdiction over these lands, i. e., the record does not reflect that notice of acceptance has been filed with the Governor of Arkansas, or jurisdiction accepted in any other manner. Certainly, the state cannot force jurisdiction upon the federal government, and until such time as an acceptance is filed by the United States, jurisdiction remains in this state. The burden was upon appellant to establish a lack of jurisdiction, and this has not been done. We thus find no merit in this contention.

II

Appellant contends that he was entitled to question each member of the jury panel relative to such juror's views concerning the death penalty. Upon objection by the Prosecuting Attorney, who had previously stated that he was not seeking the death penalty, the court refused to permit the respective jurors to answer. Even if this ruling by the court constituted error, we are unable to see how appellant was prejudiced. Of course, if the jury had brought in a verdict fixing punishment at death in the electric chair, a far different matter would be presented. Here, however, the sentence was rather light, and we have held that where an error by the court inures to the advantage of a defendant, he cannot be heard to complain. Bruce v. State, 68 Ark. 310, 57 S.W. 1103, Glenn v. State, 71 Ark. 86, 71 S.W. 254.

In addition, it does not appear from the transcript that appellant exhausted his peremptory challenges. This, in itself, would preclude the finding of merit on this point. See Green v. State, 223 Ark. 761, 270 S.W.2d 895, and Nail v. State, 231 Ark. 70, 328 S.W.2d 836.

III

Appellant stoutly maintains that the court erred in not giving his requested instruction No. 1, and by instructing the jury on the crime of assault with intent to commit rape, inasmuch as he admitted the act of intercourse with the prosecuting witness, but contended that such act was committed with her consent. Appellant's requested instruction No. 1 defined the crime of rape, and further stated,

'If these allegations are proved beyond a reasonable doubt, there is but one form of verdict that would be responsive, that is, guilty as charged, the punishment of which is death in the electric chair or life imprisonment at hard labor. Under the evidence in this case, you would have to find the defendant either guilty of rape or not guilty of any offense;...