Needham v. State

• Decision Date: 31 October 1949
• Docket Number: 4577
• Parties: Needham v. State
• Court: Arkansas Supreme Court

224 S.W.2d 785

215 Ark. 935

Needham v. State

No. 4577

Supreme Court of Arkansas

October 31, 1949

Rehearing Denied December 12, 1949.

Appeal from Mississippi Circuit Court, Chickasawba District; Zal B Harrison, Judge.

Affirmed.

Claude F. Cooper and Gene Bradley, for appellant.

Ike Murry, Attorney General and Jeff Duty, Assistant Attorney General, for appellee.

OPINION

George Rose Smith, J.

The jury found the appellant guilty of rape and imposed the death penalty. This appeal is from a judgment entered upon the verdict.

The crime occurred several hours after midnight on April 10, 1949. The prosecutrix, an eight-year-old girl, had been put to bed at home. She testified that when she awoke she was in a car with a man. He stopped the car in a deserted street and put her in the back seat. He then removed her panties, opened his trousers and got on top of her. The child did not specifically describe the act of penetration but did say that the man was hurting her and that she was crying and asking to be taken home. Eventually she was put out of the car and told to walk home.

The child's mother, whom she awakened upon her return at five o'clock in the morning, testified that her daughter was covered with blood from her throat down to her toes. A physician who treated the child found the membrane of the vaginal canal so severely torn that three fingers could be inserted, although the opening would normally have been about half the size of a man's little finger. Fifteen stitches were required to close the wound.

The prosecutrix was able to identify the car as an ABC taxicab. Investigation at the cab company's place of business revealed a cab having dark stains on the front and rear seat covers. It was learned that appellant had been assigned to drive the vehicle during the night and that after turning in his cab he had left for Hattiesburg, Mississippi. The authorities there were notified and took appellant into custody at about eight o'clock that night. When arrested he was wearing a pair of trousers having reddish stains around the fly, and in his room at a tourist court was found a pair of shorts similarly stained. Both garments bore the appellant's laundry mark.

Appellant was returned to Blytheville the next day and questioned about the crime by the sheriff. This officer testified that appellant seemed cool and unconcerned, displaying a "smartish attitude." He stated that the accused voluntarily confessed his guilt, after having been warned that any statement he might make could be used as evidence against him. In his confession appellant said that his passion had been aroused during a trip with a man and two women as passengers. He tried to go up to the women's hotel room, but the desk clerk refused permission. Appellant had formerly been in the habit of spending the night with a woman of his acquaintance, and he decided to go to the house where she had lived, not knowing whether it was still her residence. Finding the door unlocked he entered the house and saw the prosecutrix lying asleep. He picked up the sleeping child and carried her to his taxicab. From this point his confession is in substance the same as the prosecutrix' testimony, except that he explicitly admits penetration and the act of intercourse. There was a great deal of additional testimony, which we need not summarize except as it touches appellant's contentions.

I. The first contention, in the order of events at the trial below, is that a copy of the information was not served upon the accused at least forty-eight hours before the arraignment. Ark. Stats. (1947), § 43-1204. This contention is based on a deputy sheriff's testimony that he served the bench warrant but could not say whether a copy of the information was attached. This uncertainty was eliminated, however, by the testimony of the prosecuting attorney, who stated that he watched the clerk make out the bench warrant, attach the information, and hand the documents to the deputy sheriff. The accused was in the courtroom at the time, and the prosecuting attorney saw him receive both instruments. This occurred on Wednesday morning; the arraignment took place on Friday afternoon. This testimony sustains the finding that the information was properly served.

II. During the selection of the jury the prosecuting attorney was permitted to ask each juror if he had any conscientious scruples against the imposition of the death penalty. The statute defines implied bias as including such conscientious opinions as would preclude the juror from finding the defendant guilty of an offense punishable by death. Ark. Stats. (1947), § 43-1920. It is argued that the State should have been allowed to inquire only whether the juror's conscience would preclude his finding the defendant guilty, thereby permitting the service of jurors who would vote for a verdict of guilty but approve only the alternative penalty of life imprisonment. The history of our statutes rebuts this suggestion. When the statute defining implied bias was enacted the death penalty was mandatory; so it was then sufficient for the legislature to refer merely to a finding of guilt, the punishment following as a matter of course. Not until 1915 did the legislature give the jury the option of imposing life sentences in capital cases. Ibid., § 43-2153. The legislature evidently meant for the jury to exercise its discretion in selecting the punishment, but it is obvious that a juror can exercise no discretion if his conscience does not permit him to vote for the death penalty in any case. The statutory history in Idaho has been identical with our own, and there it is held proper for the State to inquire whether a juror has scruples against capital punishment. State v. Wilson, 41 Idaho 616, 243 P. 359. Among many other cases approving this inquiry when the jury in its discretion may impose a life sentence are: Shank v. People, 79 Colo. 576, 247 P. 559; State v. Leuch, 198 Wash. 331, 88 P.2d 440; State v. Favorito, 115 N.J.L. 197, 178 A. 765.

III. The defense counsel sought to ask a prospective juror if he would feel obligated to impose the death penalty rather than life imprisonment upon a finding of guilty. There was no prejudicial error in the trial court's refusal to allow this inquiry. Appellant argues that his question was merely the converse of the State's inquiry as to conscientious scruples, but we are unable to agree. The trial court has no discretion in permitting the State's inquiry, for the statute expressly recognizes such scruples as a cause for challenge. There is no corresponding statutory recognition of implied bias in favor of capital punishment; so the matter rests within the trial court's discretion. We have pointed out that the possible causes of bias are infinite. Pierce v. Sicard, 176 Ark. 511, 3 S.W.2d 337. It is for this reason that the trial court is necessarily given a broad discretion in controlling the examination of veniremen. Here the trial court stated that he did not think the juror could give a definite answer to the question without knowing all the evidence to be presented. In the absence of anything in the juror's earlier interrogation to indicate that he had a marked predilection for capital punishment we have no basis for finding an abuse of discretion.

IV. It is argued that the prosecutrix, at the age of eight, is not shown to have been a competent witness. This too is a matter that is primarily for the trial court to decide, since he is best able to judge the child's intelligence and understanding of the necessity for telling the truth. Wigmore on Evidence, § 507. In criminal cases we have approved the trial court's action in allowing children as young as this prosecutrix to testify. DeVoe v. State, 193 Ark. 3, 97 S.W.2d 75; Hudson v. State, 207 Ark. 18, 179 S.W.2d 165.

V. Several contentions stem from the State's introduction of appellant's confession. It is first argued that the corpus delicti had not been established, as the prosecutrix did not describe the act of penetration. If it were necessary that this element of rape be proved in every case by an eye-witness, the accused could not ordinarily be convicted if the prosecutrix' vision had been obscured by darkness, unconsciousness or any other cause. But that is not the law; penetration, like other facts, may be proved by means other than an account based on visual observation. Here the prosecutrix stated that the accused removed her panties, opened his trousers, got on top of her and caused her to suffer pain. In addition to this testimony the record shows her physical condition immediately after the assault, a physician's opinion that she had been entered, and the state of appellant's clothing when he was arrested. In view of this uncontradicted testimony the jury could hardly have reached any conclusion except that penetration had occurred, even if the confession had not been introduced.

VI. As we have seen, the appellant first confessed his guilt to the sheriff on the evening of his return to Arkansas. Other witnesses then came into the room, and the story was repeated in their presence. The next morning the accused was put under oath and interrogated by the prosecuting attorney, a stenographic record of this proceeding being made. At the trial the sheriff was first examined in the judge's chambers; the court, over the appellant's objection, ruled that the confession was voluntarily made. The witness was then permitted to detail the confession in the jury's presence. The State then offered the transcript of the later interrogation, the reporter having verified its accuracy. The defense objected on the ground that since the transcript had not been signed it amounted merely to an oral confession, so that the reporter could use the...