Murray v. State

• Decision Date: 16 January 1922
• Docket Number: 85
• Citation: Murray v. State, 236 S.W. 617, 151 Ark. 331 (Ark. 1922)
• Parties: MURRAY v. STATE
• Court: Arkansas Supreme Court

236 S.W. 617

151 Ark. 331

MURRAY v. STATE

No. 85

Supreme Court of Arkansas

January 16, 1922

Appeal from Howard Circuit Court; Percy Steel, special judge affirmed.

Judgment affirmed.

Abe Collins and Epperson & Jackson for appellant.

The court abused its discretion in denying the motion for continuance. 130 Ark. 245; 85 Id. 334; 99 Id. 394; 100 Id. 132; 67 Id. 290.

The evidence does not support the verdict. A conditional promise of marriage is not sufficient upon which to predicate the charge of seduction. 130 Ark. 520. The prosecutrix fixes no time, nor states the nature of any promise of marriage except the first. If she did not consent, the act according to her testimony was rape; if she did consent as the defendant claims, then it was before the promise of marriage. She was not of previous chaste character, if the intercourse occurred with her consent before the promise of marriage. 30 L. R. A (N. S.) 173 and note.

The prosecuting witness in a prosecution for seduction cannot properly be asked if she would have consented to the intercourse in the absence of a promise of marriage. 23 L. R A. 391, note.

It was erroneous to limit the testimony contradicting the testimony of Lee Shofner as tending to impeach his testimony and as affirmative evidence touching chastity or unchastity of the prosecuting witness. C. & M. Digest, § 3137; 114 Ark. 542; 118 Id. 460; 137 Id. 197; 53 N.Y. 230; 32 Ind. 478; 15 Q. B. 878; Thompson's Enc. of Evidence, vol. 2, p. 530-531 and foot-notes.

J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

1. The court was, under the showing made, justified in overruling the motion for continuance. Coppersmith v. State, 149 Ark. 597; 74 Ark. 450, 451. Moreover, it is not probable that the absent witnesses, if present, would have testified as alleged in the motion, and thereby subject themselves to prosecution for a felony. 5 Standard Enc. of Procedure, 463; 25 Fed. Cas. 38; 78 Ark. 262; Morris v. State, 150 Ark. 1.

2. The evidence sustains the verdict. Defendant's own admission sufficiently corroborates the prosecuting witness as to the fact of sexual intercourse and there was sufficient corroboration of her testimony as to the promise of marriage, by the testimony of her cousin, and of her half- sister and her mother. C. & M. Dig., § 2414; 77 Ark. 16; Id. 468; 86 Id. 30; 126 Id. 189; 130 Id. 149; 137 Id. 92; 92 Id. 421.

3. The trial court's discretion with reference to permitting the leading questions will not be disturbed unless there has been a manifest abuse. 8 Enc. of Evidence, 161.

4. The testimony of witness Shofner, even if a surprise to appellant's counsel, was not prejudicial to appellant. Under the circumstances, evidence of variant statements by this witness was not admissible for any purpose, and particularly not as affirmative evidence of unchastity on the part of the prosecutrix. 80 Ky. 507; 7 Ency. of Ev. 31; 123 Cal. 374, 55 P. 1059; 124 Ind. 101, 24 N.E. 577; 93 Ind. 128.

OPINION

SMITH, J.

Appellant was charged with and convicted of having seduced Pearl Henderson, and has appealed.

The first error assigned for the reversal of the judgment is that the court erred in refusing to grant a continuance of the cause until the following term of the court on account of the absence of six men, named in the motion for a continuance, all of whom were residents of Howard County, where the trial was pending, and whose attendance appellant had been unable to procure, although subpoenas had been duly issued for them. The indictment was returned August 25, 1921, and appellant was placed on trial September 3, 1921.

It was recited in the motion for continuance that Artie Powell, one of the absent witnesses, if present, would testify that he had frequently had sexual intercourse with Miss Henderson during the period of two years preceding the indictment, and that, after Miss Henderson became pregnant with the child she now claims appellant is the father of, she wrote a letter to Powell in which she threatened to prosecute Powell for seduction if he did not marry her. It was further alleged that the other five men named in the motion had had sexual intercourse with Miss Henderson within the two years immediately preceding the alleged seduction, and would so testify if present, but the sheriff had been unable to serve the subpoenas on any of the men named in the motion because of their temporary absence from the county.

The motion did not disclose the present whereabouts of these witnesses, and no showing was made, except the opinion of the appellant, expressed in the motion, that they would return, and that service of subpoena could be had before the next term of the court.

We think no abuse of discretion was shown in refusing the continuance until the next term of the court. As was said in the recent case of Coppersmith v. State, 149 Ark. 597, 233 S.W. 777, the fact that the six witnesses had suddenly departed from their usual haunts, and could not be located, justified the court in concluding that the witnesses were evading service of process, and that there was no certainty of procuring their attendance at a future date, especially in view of the fact that, if they had given the testimony stated in the motion, the witnesses would thereby have admitted their guilt of the crime of carnal abuse, as Miss Henderson was only seventeen years old at the time of the trial.

The chief insistence for the reversal of the judgment is that the evidence is not sufficient to sustain the verdict. The appellant admits having had sexual intercourse with Miss Henderson, and at least two witnesses fully corroborated her as to the promise of marriage; but appellant denies having made this promise and insists that the testimony of Miss Henderson, herself, shows that the intercourse was not obtained by virtue of a promise of marriage.

Miss Henderson testified that the first act of intercourse was had forcibly and against her will, and only after appellant had threatened to beat her over the head with a pine knot and have intercourse with her whether she consented or not. This act of intercourse was had in an automobile by the side of a country road. Miss Henderson testified that she cried and declared her purpose, on their way home, of telling what appellant had done, and that he then promised her, if she would not tell, that he would marry her.

If this were the only act of intercourse shown to have occurred, we would be compelled to say, as a matter of law, that the crime committed may have been rape, but was not seduction, as Miss Henderson did not yield because of the promise of marriage, but on account of the threats made and the force employed. She further testified, however, that she decided it would be better to be married than to tell what had happened; that appellant continued to visit her, frequently renewed his promise of marriage, and because of these promises she yielded to him on more than one occasion thereafter.

The court charged the jury, over the objection of appellant that, although appellant may have had intercourse with Miss Henderson prior to the promise of marriage, yet, if the intercourse was procured by force or intimidation, and against her consent, sh...