Myers v. State

• Decision Date: 16 February 1914
• Citation: 163 S.W. 1177,111 Ark. 399
• Parties: MYERS v. STATE
• Court: Arkansas Supreme Court

163 S.W. 1177

111 Ark. 399

MYERS v. STATE

Supreme Court of Arkansas

February 16, 1914

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Poinsett Circuit Court; W. J. Driver, Judge; reversed.

STATEMENT BY THE COURT.

Appellant was convicted at the September, 1913, term of the Poinsett Circuit Court of the crime of rape, under an indictment which charged him with that crime and also with the crime of carnal abuse.

The prosecutrix testified on the trial in part as follows "I am eleven years old; live with my father, Alonzo Johns, and Jeff McCracken and his wife, who is my sister. They have two children, Jessie, who is three years old, and Woodrow, the baby a year old. I was at home July 18; returned from school about 4:30. When I first saw Myers he was in the field sowing peas west of the house. He came to the house to get a drink at the pump, east or southeast of the house. I was washing the baby's clothes, and Theresa, my sister was churning when he came. I soon finished washing and sat down and talked with my sister in the yard east of the house. Myers stood there talking to sister. Sister went for some potatoes, out east of the barn, and Myers said he was going in the house to play the graphophone. Jessie (the little girl) went with sister. I had Woodrow in my lap while sitting down in the yard. Myers went in the house to play the graphophone. I sat in a chair in the middle of the floor and had the baby in my lap. Myers wanted me to find a record, "They Always Pick On Me," for him. I found it. The record box was on the bed in the northeast corner of the house. I nursed the baby with one hand and found the record with the other. Then Myers played it and I went back to the chair and sat down. He went to the south door in the kitchen, and looked out and then came to the front door and I started out and he caught me. I started out at the north door. Myers caught me around the waist and put me on the bed in the northeast corner. I still had the baby in my arms. He unbuttoned his pants. Was lying down on top of me. He pulled my clothes up and hurt me. I didn't say anything to him at all while he was on top of me; I was afraid to. I commenced to halloo and call my sister and he said if I didn't hush he would kill me. He said he would come to the corner of the schoolhouse ground and kill me. The graphophone was playing. He didn't say anything to me. He got up and went out at the south door, down through the field. I just stood there and cried. After he went away I went out in the potato patch and told sister. I was bleeding then. I had the baby in my arms and carried him to the potato patch. Sister asked me what was the matter. We went back to the house. She put me in bed, where I stayed until the next day. I could sit up then, but could hardly walk around. A doctor came that night. I was hurting when he came."

Alonzo Johns, the father of the prosecutrix, testified that her mother was dead, and that the prosecutrix was eleven years old. He lived with Jeff McCracken and his family. He was away from home on the 18th of July, the day that his daughter was said to have been raped. He made affidavit for the arrest two weeks after the alleged offense. His daughter had not told him before that time about it. He had heard the next day after the alleged occurrence that Doctor Yarborough had phoned about it and had tried to get his daughter, Malissa, to talk about it but she would not. Doctor Yarborough talked to witness about it the next day after the alleged occurrence. The day he swore out the warrant four men came out to his house, and they said that they heard that witness had been told it was done with a stick, and the little girl had been telling it, it was Charlie Myers that hurt her. They told witness that if he would have Myers prosecuted the whole neighborhood would stand back of him, but if he let Myers go some of their own children might be raped.

Theresa McCracken testified that she was the wife of Jeff McCracken and a half-sister to Malissa Johns. Malissa was injured July 18. Myers was at their house on that day after dinner, went to the field and came back about 4 o'clock. Witness went to get some potatoes, and at that time Malissa was sitting in the house nursing the baby and Myers was playing the graphophone. The potato patch was about 125 or 130 yards from the house. Witness was gone about twenty minutes. Before she came back to the house she saw Myers go through the pasture out toward his pea field. After he left it was about five minutes before Malissa came to the potato patch. Her dress skirt was bloody. She was carrying the baby. Her eyes were kind of red like she had been crying. Witness took her to the house, changed her clothes and put her in the bed in the southeast corner of the house. The bed in the northeast corner was tumbled up a little bit. Malissa had on just one skirt. The blood spot extended to the bottom of the skirt and was about eight inches wide. Malissa didn't have on anything except a skirt. She had not arrived at the age of puberty. After the occurrence Myers was the first person witness saw. He was in the field, coming up toward the house, not far away. He got over the fence and came up the road to the gate. Witness asked him about sending for a doctor. He replied maybe she would get all right and would not need a doctor, and that if she needed a doctor he would try to get one. They saw Mrs. Smith coming up then, and Myers said if he were witness he would not say anything about Malissa getting hurt. It was about a week and a half after Malissa was hurt before she told of how she received her injuries. She stated that she had been hurt on a cane. Witness asked her if she was sure it was a cane and she said it was, and explained that she stepped on it and the cane flew up and hit her.

When witness came back from the potato patch she saw the cane in the yard east of the house. It was about the size of witness's finger and about three and a half feet long, maybe longer. There was nothing on the cane at all. Myers lived about three-quarters of a mile from witness's house. Johns phoned for the doctor from Myers's house. The doctor came a little after dark that night. He made an examination of Malissa. Mrs. Smith and Mrs. Myers helped him. Johns, her father, was not in the room. The doctor came back the next morning and examined her again. He did not come back any more.

The doctor testified that he examined the prosecutrix on the night of the day she was alleged to have been raped between 5 and 7 o'clock. He had to use a lamp light. The bed clothes and her underclothes were soaked with blood. He found the vagina full of clotted blood. There was a hemorrhage at that time, and a tear between the vagina and the rectum, extending between an eighth and a quarter of an inch toward the rectum. He inserted three fingers. The hymen was broken and there was none there. He could not say when it had been broken, but there had been some penetration by a blunt instrument. He could insert his fingers four or five inches, and more than that could not be done in a normal woman. The prosecutrix was not suffering any pain until witness went to examine her. He examined the cane that was out on the porch; the little end was about the size of a man's little finger and the other end about the size of a man's thumb. It was four or five feet long. The large end was trimmed off round. He saw no blood on the cane. The odor when witness examined the prosecutrix was that of fresh blood and not that peculiar to menstruation.

Several witnesses on behalf of the appellant testified that they were at the house of McCracken, where the prosecutrix lived, on the day following the alleged occurrence and on the second day thereafter. They observed that the prosecutrix was playing around the house in the usual way and that she brought a full bucket of water out on the porch for certain of the witnesses to drink. She walked about, got up and down, and brought the water, and they observed nothing unusual about her. They observed no trouble or anything the matter with her. One witness testified that he was at the house on the next day after she was injured, in company with another person; that they took dinner at the McCracken home; that Malissa ate dinner at the table with them. They stayed from about 11 o'clock until about 3 o'clock, and Malissa, during the time while she was not at dinner, was playing about the house "just like a kid would do" with the other children. She also pumped a bucket of water. This witness stated that Mrs. McCracken on that day told witness that Malissa, after some hesitation, had told her (Mrs. McCracken) just after the occurrence what Charlie Myers had done, and that Mrs. McCracken told witness that she saw what happened. She didn't say anything about putting Malissa to bed or about any bloody clothes or any cane.

Mrs. Smith testified that she was at the home of Jeff McCracken on the evening of the day that it was reported that Malissa Johns was hurt. She was there at the same time the doctor was. Malissa was in bed when the doctor got there. Witness stayed all night there. Witness held the lamp for the doctor while he was examining Malissa. Malissa was swelled awfully bad and there was blood. Witness knew the odor of blood accompanying menstruation and that was no odor of that kind. Witness could hardly see and could not hear much. While witness was there, about night, Malissa told how she had been hurt with a cane.

Several witnesses testified that the character of the prosecutrix for truthfulness was bad, and that they would not believe her on oath.

The appellant testified that he was forty years old; he was a married man; had five children; the eldest, if living, would be...