Maxwell v. State, Cr. N

• Decision Date: 09 January 1950
• Docket Number: Cr. N
• Citation: 216 Ark. 393,225 S.W.2d 687
• Parties: MAXWELL v. STATE. o. 4587.
• Court: Arkansas Supreme Court

Page 687

225 S.W.2d 687

216 Ark. 393

MAXWELL v. STATE.

Cr. No. 4587.

Supreme Court of Arkansas.

Jan. 9, 1950.

W. Harold Flowers, E. V. Trimble and L. Clifford Davis, Pine Bluff, for appellant.

Ike Murry, Attorney General and Arnold Adams, Assistant Attorney General, for appellee.

GRIFFIN SMITH, Chief Justice.

Appellant is a Negro twenty years of age. By information the State charged that on July 20th, 1949, he raped Mrs. Walter Nichols, a white woman whose husband was a plantation tenant residing south of Hope near Highway 29. The crime is alleged to have occurred shortly after eight o'clock in the morning while Mrs. Nichols was otherwise alone. Her testimony was that Herman stopped by the house, tapped lightly at the front porch, and asked for a drink of water. He made incidental inquiries and went away, but shortly returned and requested matches.

Substance of Mrs. Nichols' testimony from this time is that the caller, whom she had not formerly known, demanded in an insinuative manner whether she 'had anything for him'. Her indignant 'No' was followed by the Negro's aggressive act in coming onto the porch after she had asked him several times to go away. As she withdrew into the house Herman followed, an open knife in his right hand. Through fear she did not make an outcry. Herman's actions were accompanied with the remark, 'I came here for something and I am going to get it before I leave'. Mrs. Nichols was pushed to a bed where the rape took place while Herman held the knife in a threatening position, saying he would use it if an outcry should be made. He also threatened to kill her if others were later told what had happened.

Appellant, while admitting the sexual act, insisted that he had been repeatedly solicited. On at least three occasions before July 20th Mrs. Nichols, he said, had broached the subject of copulation, but he told her he was afraid to have such relations with a white woman. On the day in question Mrs. Nichols called as he passed the house and asked if he had 'thought it over--about having sexual intercourse with a white woman if you had a chance?' She then told him that if he didn't consent 'I will scream, and the house will be surrounded'. In these circumstances, and through fear of what might happen if Mrs. Nichols should falsely accuse, he consented.

The jury did not believe this story of enticement, but chose to accept the explanations made by Mrs. Nichols; and the evidence was sufficient to sustain the conviction.

The controlling question before us, however, is not one of evidence, although an understanding of the factual background is helpful in determining whether appellant's motion for a continuance ought to have been granted.

The defendant was arrested seven or eight hours after he left the Nichols home. Because of public resentment in Hempstead County he was taken to a jail elsewhere and kept until August 4th. Then a certified copy of the information was served on him in the courthouse at Hope. The record indicates that he was again taken out of the county, but was brought back two days later for arraignment. Being unable to pay for legal services, the accused was offered and impliedly accepted counsel by appointment. Six members of the local bar were asked to represent him: Lyle Brown, Albert Graves, W. S. Atkins, John P. Vesey, John L. Wilson Jr., and Talbot Field, Jr. Trial was set for Monday, August 8th. The attorneys when appointed petitioned for an order committing the defendant to State Hospital for observation and examination, stating that the defense of insanity would be interposed.

In denying the request for commitment, the Court also appointed Doctors Don Smith, G. E. Cannon, J. G. Martindale, L. M. Lile, J. W. Branch, Jim McKenzie, and George H. Wright, to determine whether there were reasonable grounds for believing the prisoner to be insane. Act 256, approved March 8, 1949. The order required these physicians--none of whom qualified as a psychiatrist or mental expert--to make their report at nine o'clock Monday morning. All joined in a certificate dated Sunday, August 7th, finding the subject sane, or as it was expressed, 'without psychosis'.

In their motion for continuance--all concurring--the attorneys urged that insufficient time had been allowed for preparation. They did not, until mid-morning Saturday, know that the Court had appointed them for the defense. Presumptively the motion was drafted Saturday afternoon or Sunday--although filing date is the 8th--for it recites that the physicians had not reported on the sanity tests.

Urged as justification for continuance was the impracticability of interviewing the prisoner, who could not be seen without a four-hour notice to the peace officers. On Sunday morning these custodians informed counsel that Herman Could be seen at three o'clock that afternoon. The resulting conference lasted two hours, ending at five o'clock.

It is alleged in the motion that the defendant persisted in his claim that relations with Mrs. Nichols were invited, thus contradicting published reports of a voluntary confession. Other than the time employed on Sunday, the only opportunity for preparation was from late Saturday until that day ended, 'consisting of a few daylight hours'; therefore, urged the attorneys, 'In order to give the defendant the defense to which he is...