Maxey v. State

• Decision Date: 10 June 1899
• Parties: MAXEY v. STATE
• Court: Arkansas Supreme Court

52 S.W. 2

66 Ark. 523

MAXEY v. STATE

Supreme Court of Arkansas

June 10, 1899

[Copyrighted Material Omitted]

Appeal from Crawford Circuit Court, JEPHTHA H. EVANS, Judge.

Judgment affirmed.

Chew & Fitzhugh, for appellant.

It was error for the court to deny the defendant's motion for continuance to enable him to obtain the evidence of the witnesses who were in Texas. 60 Ark. 564; 21 Ark. 460; 50 Ark. 161; 32 Ark. 462; 1 Bish. Cr. Proc. 951, a, b and c; 38 L. R. A. 721; 4 Am. & Eng. Enc. Pl. & Pr. 847-849, 861; 80 Ky. 480; 65 Ga. 332; 14 S.W. 1008. The fact that the evidence sought is cumulative is no reason for denying the motion in a felony case. 14 S.W. 1008. The court erred in refusing to give the sixth instruction asked by defendant, cautioning the jury as to the weight to be given to the evidence of an impeached witness. Sackett, Inst. 34-36; 1 Thompson, Trials 520, 536-7; 2 id. 2423-6; 1 Tex.App. 432; 25 Mo. 553. It was error to refuse the fourth instruction asked by defendant. 63 Ark. 470; 2 Bish. Cr. Law, 1122; 1 Whart. Cr. Law, § 557; 59 N.Y. 374; 4 N.E. 63. The remarks of the attorney for the state were improper, and constitute ground for reversal. 62 Ark. 126; ib. 516; 58 Ark. 473; 63 Ark. 174.

Jeff Davis, Attorney General, and Chas. Jacobson, for appellee.

OPINION

WOOD, J.

Appellant was convicted of the crime of rape. The prosecutrix was a German woman, forty-nine years of age, who could not speak English well, and testified through an interpreter. The proof on behalf of the state (without setting it out in detail) tended to show that the prosecutrix was led by a young white boy, Tommy Downs, to a place about one quarter of a mile from the depot at Van Buren, and turned over by him, in the woods near the Morrell place, to the appellant, who claimed that he would get her a place to stay all night. The testimony to the effect that the prosecutrix was led by Tommy Downs, and taken to where he said he delivered her over to the appellant, at appellant's request, is such as to leave no well-founded doubt of that fact. But the testimony going to show that the prosecutrix was raped by the appellant is exceedingly unsatisfactory, so much so as to give us serious pause as to whether it is sufficient to support the verdict.

The testimony of the prosecutrix, in itself, as it appears in this record, is incoherent and desultory. Her reputation for truth and morality is shown to be bad. As one of the witnesses expresses it, "utterly worthless." Another witness said: "From my knowledge of this person, I believe her to be insane upon the subject of being raped, and she has a mania of accusing persons of having assaulted her with intent to rape. While an inmate of the poor farm, she falsely accused me and others of rape." This witness was the superintendent of the poor farm in Missouri. Another witness (Carl Starck) testified that he regarded her as sixty-five per cent. insane; that her reputation for truth and morality was bad; that she told him that "she had made lots of money by killing unborn children for women." He said: "She had a mania for placing herself in a place where she will be commiserated. Anything," says he, "that will cater to that." Believing her story, however, there was some evidence to justify the conclusion that the appellant had sexual intercourse with her by force, and that it was against her will. Though there is no proof whatever of any actual physical resistance, there were circumstances from which the jury might have concluded that her will was overcome through fear of violence. But, however unsatisfactory, under the rule which has so long been adhered to by this court, we cannot set aside the verdict. For to do so would devolve upon us the duty of passing upon the credibility of the witnesses and determining the weight of the evidence. That was peculiarly the province of the jury, and, as the learned circuit judge, who saw and heard the prosecutrix and all the other witnesses testify, refused to set aside the verdict, we will not disturb it, because, as improbable as it may be, considering the character and demeanor of the prosecutrix, that any negro had sexual intercourse with her and against her will, yet it was not impossible, and, notwithstanding the reputation she is shown to have possessed, it was still a question for the jury, and not for this court, to say whether her testimony was true. The jury must have believed her, and the circuit judge, who had a much better opportunity than we of judging of the credibility of the witnesses and the presence or absence of anything like passion or prejudice upon the part of the jury, has permitted the verdict to stand, and we will therefore not disturb it.

1. Were there any errors of law? The court did not err in overruling the motion for a continuance. One of the grounds insisted upon for a continuance was that appellant had been informed, and he believed he could prove, "by divers and various persons, who were citizens and residents of Terrell. Texas, but whose names were unknown to the defendant, that in the year 1895 said Hulda Mayer, the prosecutrix, falsely and fraudulently charged two negro men with having raped her, and that on account of said false charges said two innocent men were hanged." If this testimony were competent at all, it was only so for the purpose of showing a disposition upon the part of the prosecutrix to falsely accuse persons of raping her. That disposition was abundantly shown by other evidence in the case, and, even if the motion had been definite enough to have assured the court that such testimony could have been obtained, still no prejudice has resulted to the appellant in not allowing him time to obtain it.

2. It is insisted that the court erred in not giving, at the request of the defendant, the following as instructions:

"(4). If the jury believe from the evidence that, at the time the rape is alleged to have been committed, the prosecuting witness had it in her power to resist the defendant, and prevent the offense by kicking, biting, striking him, or by making an outcry, or by any other mode calculated to repel his attack, and that she failed to make all the resistance then in her power to make, then this is a circumstance that the jury should take into consideration, with all the other evidence in the case, in determining whether the rape was actually committed."

"(6). The jury are instructed that in prosecutions of this kind the character of the woman may be called in question for the purpose of affecting her credibility as a witness, and as a circumstance affecting the probability of the act of intercourse being voluntary or against her will, or whether there was any intercourse whatever; and if the jury believe from the evidence that the prosecuting witness is a woman of bad fame or evil repute, or that her reputation for truth and morality is bad, then they may take this fact into consideration for that purpose, together with all the other evidence in the case, in determining the amount of credit, if any, to which her testimony may be entitled."

The court gave the following, as requested by the defendant "To authorize a conviction of rape, the jury must believe from the evidence beyond a reasonable doubt that the defendant had carnal connection with the prosecuting witness...