McDonald v. State, Nos. 4804-4805
| Court | Supreme Court of Arkansas |
| Writing for the Court | HOLT; SEAMSTER; ROBINSON |
| Citation | 279 S.W.2d 44,225 Ark. 38 |
| Parties | J. W. McDONALD, Appellant, v. STATE of Arkansas, Appellee. |
| Decision Date | 16 May 1955 |
| Docket Number | Nos. 4804-4805 |
Page 44
v.
STATE of Arkansas, Appellee.
Dissenting Opinion May 23, 1955.
Page 45
[225 Ark. 39] A. E. Johnson, Texarkana, for appellant.
Tom Gentry, Atty. Gen., and Thorp Thomas, Asst. Atty. Gen., for appellee.
HOLT, Justice.
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 [225 Ark. 40] 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. 'Q. However, he didn't have intercourse with you on that day? A. No, sir. Q. He didn't force you to have intercourse with him? A. He tried to, but I jumped out of the bed, and he told me he would knock my head off for acting so smart with him about it.' Continuing her testimony: 'I went with him and the three little kids were with us. (Witness begins crying) And so we got out there, and he told the little kids we were going to look for berries. I told him I didn't want to go--I wanted to stay in the truck, and he made me go with him, and so I got down, and I had on blue jeans, and he made me pull them off and he raped me, and we went back to the truck. He tried to start it and it wouldn't start and so he made me go back with him again, and when we came back, it still wouldn't start, and he made me go back the third time. * * *
'Q. Each time he carried you back in the woods, did you take off your clothes? A. Yes, sir.
'Q. And you put them back on each time when he had finished? A. Yes, sir.
'Q. What is your feeling toward your father, Miss McDonald? A. Well, I don't want ever to have to live with him again.
'Q. Isn't it true that you strongly dislike your father? A. Yes, sir. * * * And when we got back to the truck, he pulled the truck and we started home, and we got to a little store on Highway 67, and he bought the children some ice cream, and we went on home.
'Q. Where was your mother? A. She was there at the house. We tried to get daddy to let her go with us and he wouldn't do it. He told her there wasn't any use, it wasn't any of her business--that she didn't need to go.
'Q. Did you tell your mother what occurred? A. No, sir, not then.
'Q. When did you tell her? A. That night. He told me if I told her, it would be too bad for me. He told me I had better not tell her. * * *
'Q. Do you know what intercourse is? A. yes, sir.
'Q. Did he have intercourse with you? A. Yes, sir.'
The prosecutrix was afraid of her father. She testified as indicated that she resisted his [225 Ark. 41] advances, that he chased her and
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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: Let the record show Essie [225 Ark. 42] Marie McDonald, wife of the defendant, is called. Do you have a motion, Mr. Lowe? (Discussion off the record.)
'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.
'By the Court: Mrs. McDonald, you may stand aside and go back to the witness room. Gentlemen of the Jury, the witness who is leaving the stand is the wife of the defendant, and the Court has held that a wife cannot testify against her husband except where she has been personally injured; the Supreme Court has held that this does not include children. All right, call your next witness. (Witness is excused.)'
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...
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Mitchell v. Stephens, No. PB 62 C 24.
...23 (1950); Pemberton v. State, 221 Ark. 19, 251 S.W.2d 825 (1952); Watts v. State, 222 Ark. 427, 261 S.W.2d 402 (1953); McDonald v. State, 225 Ark. 38, 279 S.W.2d 44 (1955); Rogers v. State, 237 Ark. 437, 373 S.W.2d 705 11 The race of the victim is indicated in the original transcript but n......
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Mitchell v. Stephens, No. 17835.
...(1947); 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, yo......
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State v. Rusk, No. 142
...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); ......
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Gardner v. State, No. CR-77-196
...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 by the m......
-
Mitchell v. Stephens, No. PB 62 C 24.
...23 (1950); Pemberton v. State, 221 Ark. 19, 251 S.W.2d 825 (1952); Watts v. State, 222 Ark. 427, 261 S.W.2d 402 (1953); McDonald v. State, 225 Ark. 38, 279 S.W.2d 44 (1955); Rogers v. State, 237 Ark. 437, 373 S.W.2d 705 11 The race of the victim is indicated in the original transcript but n......
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Mitchell v. Stephens, No. 17835.
...(1947); 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, yo......
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State v. Rusk, No. 142
...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); ......
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Gardner v. State, No. CR-77-196
...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 by the m......