Lindsey v. State

• Decision Date: 22 March 1948
• Docket Number: 4486
• Citation: 209 S.W.2d 462,213 Ark. 136
• Parties: Lindsey v. State
• Court: Arkansas Supreme Court

209 S.W.2d 462

213 Ark. 136

Lindsey v. State

No. 4486

Supreme Court of Arkansas

March 22, 1948

Appeal from Jefferson Circuit Court; T. G. Parham, Judge.

Affirmed.

Reinberger & Eilbott, for appellant.

Guy E. Williams, Attorney General and Oscar E Ellis, Assistant Attorney General, for appellee.

OPINION

Griffin Smith, Chief Justice.

The defendant was charged with having raped Margaret Euseppi, sixteen-year-old high school student and part-time waitress in a Pine Bluff cafe. Appeal is from a judgment based on the jury's verdict that the crime was assault with intent to rape. Sentence imposed was seven years in prison.

Of the fourteen errors alleged in the motion for a new trial, two are argued: (a) Because the State's evidence went only to the charge of rape, the jury ought not to have been instructed that assault with intent is embraced within the information alleging rape. (b) Mrs. Carl Euseppi sister-in-law to the prosecuting witness, was permitted to testify that after Margaret had given an account of Lindsey's conduct, she (the witness) did not report it because Margaret thought the transaction should not be made public.

Margaret's uncorroborated testimony regarding the crime and circumstances attending it was sufficient to convict.

Appellant is mistaken in thinking that attempt is not included in a charge of rape. He relies upon Whittaker v State, 171 Ark. 762, 286 S.W. 937, where Mr. Justice Wood said the trial court correctly instructed that, under the testimony there, the appellant, if not guilty of rape, was entitled to an acquittal. He did not say, however, that it would have been error to instruct that attempted rape was included in the greater charge. On the contrary, (and in the same paragraph quoted by appellant) Judge Wood emphasized the fact that Whittaker did not request an instruction on the lesser offense -- "which offense is embraced in an indictment for rape", hence the appellant was not in a position to complain of the Court's action in giving Instruction No. 1, to the effect that under the evidence Whittaker's act was rape, or no crime at all. See Bradshaw v. State, 211 Ark. 189, 199 S.W.2d 747. The Bradshaw case also holds that the State is not required to corroborate testimony given by the victim, since she is not an accomplice.

The testimony of Mrs. Carl Euseppi in explanation of Margaret's reluctance to publicize the wrong that had been done her was admissible. Wharton's Criminal Law, v. 1, p. 984, § 727, says it is generally held that in a prosecution for rape, and after the prosecutrix has testified to the main facts of the offense, evidence in corroboration may be received. It is competent to show that after the outrage the prosecutrix made complaint to the person or persons to whom a statement of such an occurrence would naturally be made, together with the circumstances under which it was made, where such complaint came within a reasonable time. In Skaggs v. State, 88 Ark. 62, 113 S.W. 346, consonant with Wharton, Chief Justice Hill's opinion declares the law to be that testimony may be received to show that the prosecutrix made complaint, but details of the complaint are not admissible unless they are a part of the res gestae, or in corroboration of testimony given by the prosecuting witness when it is attacked.

The rule of admissibility of testimony such as appellant complains of was discussed by Mr. Justice Riddick in passing upon the defendant's contention that a witness was permitted to give "the particular facts which Julia Lagrone, the prosecuting witness, related . . . when making complaint of the assault". Williams v State, 66...