McDonald v. State, s. 4804-4805
Decision Date | 16 May 1955 |
Docket Number | Nos. 4804-4805,s. 4804-4805 |
Citation | 279 S.W.2d 44,225 Ark. 38 |
Parties | J. W. McDONALD, Appellant, v. STATE of Arkansas, Appellee. |
Court | Arkansas Supreme Court |
A. E. Johnson, Texarkana, for appellant.
Tom Gentry, Atty. Gen., and Thorp Thomas, Asst. Atty. Gen., for appellee.
A jury found appellant guilty of the crime of rape, Ark.Stats.1947, § 41-3401, and assessed his punishment at a term of life imprisonment in the state penitentiary. From the judgment is this appeal.
Case No. 4805, consolidated with this appeal (Case No. 4804), relates to a motion for a new trial based on alleged newly discovered evidence.
--1--
For reversal appellant first questions the sufficiency of the evidence,--Assignment 1-(a), (b), (c). The prosecuting witness is appellant's thirteen-year-old daughter who was in the ninth grade in school. She testified that in early July, 1954 at about 1:30 P.M. her father, '* * * came in and he said he wanted to take us berry picking, and I told him I didn't feel like going because I kind of thought that was what he was going to do.' A short time before, appellant in their home got in bed with the prosecutrix and tried to have intercourse with her. Continuing her testimony: * * *
* * *
The prosecutrix was afraid of her father. She testified as indicated that she resisted his advances, that he chased her and brought her back and raped her forcibly and without her consent.
Appellant denied his daughter's accusations, or that he had ever tried to have illicit relations with her, however, the jury, which was the sole judge of the testimony and of the weight to be given to it, evidently chose to believe the child's version of what happened. When we give to her testimony and all the evidence in the case its strongest probative force in favor of the State, as we must, we cannot say that it is not substantial and legally sufficient to support the jury's verdict and judgment.
Her testimony standing alone was legally sufficient to convict. It was not necessary that it be corroborated. We held in Bradshaw v. State, 211 Ark. 189, 199 S.W.2d 747 (Headnote 4): 'Since one of the essential elements in the crime of rape is that the act must be committed forcibly and against the will of the prosecutrix, she is not an accomplice and corroboration of her testimony is not necessary.' The words 'forcibly ravish a female' mean that the act was 'done 'against the will' of the female, or without her consent, which has the same meaning.' State v. Peyton, 93 Ark. 406, 125 S.W. 416, 417.
The lesser offenses of assault with intent to rape, and carnal abuse of a female under the age of 16 years, were properly presented to the jury by the court, but, as indicated, the jury elected to find appellant guilty of the greater offense of rape.
--2--
Appellant in Assignment 2 argues that the State erred in offering as a witness appellant's wife knowing that she could not be compelled to testify against her husband (by virtue of §§ 43-2019, 43-2020), and that this offer prejudiced the jury against him. We do not agree.
On this issue the record discloses: 'Essie Marie McDonald, being called as a witness for the State, and after having first been duly sworn, was seated in the witness chair.
'By the Court: The Court will hold that Mrs. McDonald is incompetent to testify.
'By Mr. Lookadoo: I want to make an objection to this later.
It appears that appellant made no objection to the court's action and he is, therefore, in no position to complain for the first time here. Lewis v. State, 202 Ark. 6, 148 S.W.2d 668.
--3--
In Assignment 3 appellant contends that he is entitled to a new trial on the grounds of newly discovered evidence. He says:
'That defendant has obtained newly discovered evidence that could not have been presented to the court at the trial on his behalf and in his defense at the original trial.
Our rule is that one relying on newly discovered evidence for a new trial must show: 'Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.' Ark.Stats.1947, § 27-1901.
In this connection appellant argues that Dr. H. H. Holt made a physical examination of the prosecutrix after the trial which revealed that her hymen was still intact and that this testimony was concealed from the appellant. To secure a conviction it was not necessary to prove that the hymen had been broken. "The carnal knowledge that is required to constitute rape must be a res in re, but to no particular depth,' and the hymen need not be ruptured nor the body torn.' Poe v. State, 95 Ark. 172, 129 S.W. 292, 294. The record shows that the attorneys for appellant at the trial in effect admitted to the trial court during consideration of appellant's motion for a new trial that they knew that a medical examination had been made of the prosecutrix prior to the trial but since it was made about thirty days after the alleged rape, they had concluded it would be of no material value. On this issue the court commented as follows: 'The defense attorneys were aware that a medical examination had been made, and they were aware of that fact nprior to the day of the trial, and that after consultation with a qualified neurologist, they concluded that the examination of the examining physician would be of no material value, particularly in light of the approximately 30 days which had elapsed between the date of the alleged act and the date of the examination. * * * the attorneys for the defendant had unrestricted access to the prosecuting witness, and the mother, Mrs. McDonald, and that they questioned those parties at length.' We hold that this proffered medical evidence failed to meet the above statutory requirement for admission. French v. State, 205 Ark. 386, 168 S.W.2d 829.
Another doctor, Henry, also testified at the hearing on the motion for a new trial in effect that to have intercourse the hymen must be perforated. His testimony was based on hypothetical questions. He made no physical examination of the prosecutrix and admitted that he had never seen her. There was no proper showing that his testimony could not have been obtained by due diligence priaor to the trial.
Three ladies also testified, at the hearing on the motion for new trial, in effect, that about January 27, 1955, about six months after the alleged rape, that they went to appellant's home and in the presence of the prosecutrix had asked her mother whether the appellant had had intercourse with the prosecutrix and that Mrs. McDonald replied that appellant had tried to but did not succeed, and that her daughter did not know the difference, and that she took her to a doctor.
Appellant argues that the above statements of Mrs. McDonald were admissible for the reason so he says: ...
To continue reading
Request your trial-
Gardner v. State
...supra. The carnal knowledge required is a res in re, but to no particular depth. Poe v. State, 95 Ark. 172, 129 S.W. 292; McDonald v. State, 225 Ark. 38, 279 S.W.2d 44. The penetration of the body of the victim need not be to any particular depth, so long as there is an entry of the labia b......
-
State v. Rusk
...determined meaning except to the extent expressly or by implication changed in this subheading."2 See, e. g., McDonald v. State, 225 Ark. 38, 279 S.W.2d 44 (1955); Wilson v. State, 10 Terry 37, 49 Del. 37, 109 A.2d 381 (1954), cert. denied, 348 U.S. 983, 75 S.Ct. 574, 99 L.Ed. 765 (1955); C......
-
Mitchell v. Stephens
...Batchelor v. State, 217 Ark. 340, 230 S.W.2d 23 (1950); Pemberton v. State, 221 Ark. 19, 251 S.W.2d 825 (1952); McDonald v. State, 225 Ark. 38, 279 S.W.2d 44 (1955); Stevens v. State, 231 Ark. 734, 332 S.W.2d 482 (1960); Rogers v. State, 237 Ark. 437, 373 S.W.2d 705 5 "Q. Lonnie, you gave m......
-
Clark v. State, 5290
...Prosecuting Attorney in attempting to call appellant's wife as a witness against the defendant, and mentions the case of McConald v. State, 225 Ark. 38, 279 S.W.2d 44. There, the defendant's wife was called by the state, was sworn, and seated in the witness chair. The record then reflects t......