Moreland v. State

• Decision Date: 10 July 1916
• Docket Number: 125
• Citation: 188 S.W. 1,125 Ark. 24
• Parties: MORELAND v. STATE
• Court: Arkansas Supreme Court

188 S.W. 1

MORELAND v. STATE

125 Ark. 24

No. 125

Supreme Court of Arkansas

July 10, 1916

Appeal from Craighead Circuit Court, Jonesboro District; J. F Gautney, Judge; affirmed.

STATEMENT BY THE COURT.

This is an appeal from a conviction against the appellant for an assault and battery on the person of one Mrs. Ida Turner. Mrs. Turner testified substantially as follows: That she lived in the country; that on January 20, 1916, at about 9 o'clock in the morning, she went to visit her sister, who lived about a half mile away by the path or field road over which she was traveling. No one was with her except her baby. She met Doctor Moreland, who was traveling south, and crossed Mrs. Turner's road. He was in his buggy, and after driving through the gate, he stopped and waited until Mrs Turner came close to him. She walked up in about ten steps of him, and he wanted to know where she was going to travel that morning, and after a few words of conversation he walked up and took hold of her arm, squeezed it and said, "Are you well." She replied "No." He then said "Kiss me this morning." She refused, and he pushed around some way, and his beard scraped her face. Her baby screamed, and he said, "Are you going through the field?" She said, "Yes," and he said "Now I will open the gate for you." She refused to let him open the gate for her, and he said, "Ida, can't I come to see you," and she replied, "No." Then he went on, and she continued her journey to her sister's. Doctor Moreland tried to kiss her about six years before, and at that time she objected to it, but said nothing about it. This time she reported the matter to her husband. She never told the doctor to take his hand off her wrist, but stepped back for him to take it off. He just walked up and "kinda squeezed on her wrist," and she stepped aside and he walked up and took hold of her again. After he asked her to kiss him, she told him to quit, and he did quit.

Doctor Moreland testified as follows: "I have known Mrs. Ida Turner all her life, and have acted as her family physician during that period of time. The facts have been stated pretty well. I did take hold of her wrist with my right hand, but she didn't step over to one side. About that time I asked her to kiss me, and she said no, and the child cried about that time, and it passed off at that. She didn't object to my holding her wrist nor raise any outcry for help or cry. I didn't kiss her. When she said no, I stopped right there. I am 65 years old."

On cross-examination, appellant testified that he had kissed the prosecutrix about six years ago; that he kissed her with her consent; she offered no resistance whatever. The reason he had for believing that his approaches would be acceptable to her on this occasion was their former relations.

It was agreed by the prosecuting attorney and the attorney for the appellant that the appellant had been charged with a breach of the peace for the use of abusive language in connection with this same transaction; that he was fined $ 50 therefor, and that the fine had been paid. The conviction in that case was predicated upon the same testimony that had been introduced in this case.

The appellant asked the court to instruct the jury to return a verdict in his favor. He further asked that the court instruct the jury that he had already been convicted on a charge of a breach of the peace for abusive language, in which the same testimony was introduced as had been introduced in the present case, and that by reason of such conviction he could not be convicted on the present charge. The court refused these prayers for instructions, and gave instructions on its own motion, to which appellant excepted.

The above are all of the facts that are necessary to be stated for a correct determination of the issues presented by this appeal.

Judgment affirmed.

Basil Baker and Horace Sloan, for appellant.

1. The undisputed evidence shows that no crime was committed and the court should have directed a verdict for defendant. 87 Ark 227. The mere squeezing a woman's wrist and the accidental brushing of her face with the ends of his whiskers utterly fails to establish assault and battery. 87 Id. 227; 49 Id. 179; 1 Md. 3; 1 S.W. 447; 79 Id. 577; 46 Tex.Crim. 1. No force was intended or proven.

2. It was error for Ed Turner and John Winn to testify about conversations concerning a proposed compromise. 52 Ala. 411.

3. The court erred in requiring defendant to testify with reference to former convictions for assault. Kirby's Digest, § 3138, as amended by Acts 1905, page 143; 70 Ark. 107, 110, 600.

4. The plea of former jeopardy should have been sustained. Kirby's Digest, § 5633; 89 Ark. 378; Ann. Cases, 1913-A, 1056; 109 Ark. 60; 99 Ark. 149. A conviction for a minor offense is a bar to prosecution for the same act charged as a higher crime. Ann. Cases, 1912-C, p. 66T; 11 Bush (Ky.) 603; 3 N. C. (2 Hayw.) 4; 57 Vt. 576.

5. Argue the instructions which are not passed upon by the court, citing Kirby's Digest, § 1687; 36 Ark. 222; 41 Id. 408; 100 Id. 330; 109 Id. 391; 172 S.W. 1025.

Wallace Davis, Attorney General, and Hamilton Moses, Assistant, for appellee.

The court properly refused to direct a verdict. Defendant had the ability to commit the battery, and did so for he applied force sufficient to draw the prosecutrix toward him. His intention is clear. Kirby's Digest, §§ 1583-4; 1 Am. & E. Enc. L. (1 ed.) 779; 2 Bishop Cr. Law, § 3; 83 Minn. 453; 1 Words & Phrases, 535.

2. Argue the admission of testimony as to compromise, citing 12 Cyc. 418; 34 Ark. 480; 102 Id. 525; 150 S.W. 119, and other cases, but the court does not pass on this.

3. Testimony was admissible to prove former conviction of any crime, for the purpose of going to the credibility of the witness. Clark's Cr. Law (2 ed.), 40; 5 Words & Phrases, 4533.

4. There was no error in the court's charge. Kirby's Digest, §§ 1583-4. A battery is the use of any unlawful violence on the person, with intent to injure. 19 Ark. 205-213; 99 Id. 90; 44 Tex. 43; 20 So. 296; 94 Ky. 433; 95 Mass. 308-317.

5. The plea of former jeopardy was properly overruled. Kirby's Digest, §§ 5633, 1648; 42 Ark. 40; 61 Id. 88, 99; 66 Ind. 223; 61 Ark. 99. The two offenses are separate and distinct. 53 Miss. 439; 61 Ark. 88, 99; 66 Ind. 223.

OPINION

WOOD, J., (after stating the facts).

The undisputed testimony shows that appellant was guilty of the crime charged.

An "assault and battery is the unlawful striking or beating the person of another." Kirby's Digest, § 1584.

Mr. Bishop says: "The kind of physical force necessary to constitute an assault is immaterial." See 2 Bishop's New Crim. Law, section 28. Among the examples, he gives to illustrate the text is, "The taking of indecent liberties with a woman; even laying hold of and kissing her against her will." Citing, Reg. v. Dungey, 4 Fost. & Fin. 99, 103. The author says (vol. 1, sec. 548): "Assault and battery are two offenses against the person and personal security, in the facts of most cases existing together, and practically regarded as one." "A battery," says he, "is any unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent."

In Mailand v. Mailand, 83 Minn. 453, 86 N.W. 445, it is said: "An intent to do violence is an essential ingredient of the offense, but the degree of violence is, of course, immaterial. The least or slightest wrongful and unlawful touching of the person of another is an assault." See, also, Clark's Criminal Law, p. 228.

The presumption is that Mrs. Turner was a chaste woman, and there is no evidence to the contrary. The testimony of the appellant to the effect that he believed his approaches would be acceptable to her because he had kissed her and she had kissed him six years ago, did not constitute an excuse or justification for his laying his hands upon her with the view of kissing her as he had done on the previous occasion. The undisputed proof shows that on the former occasion when he kissed her, she was a single woman. Since that time she had married, and at the time of the alleged offense, had her baby with her. The circumstances were entirely different.

Although the appellant had been the prosecutrix's family physician, as he says, all her life, that fact and the fact that he had kissed her before when she was a maiden did not justify him in laying his hands upon her before he knew whether or not she would consent to these advances. The presumption must be indulged that a virtuous woman would not have consented to be kissed...