Paul v. State

• Decision Date: 03 July 1911
• Citation: 139 S.W. 287
• Parties: PAUL v. STATE.
• Court: Arkansas Supreme Court

139 S.W. 287

PAUL v. STATE.

Supreme Court of Arkansas.

July 3, 1911.

Appeal from Circuit Court, Independence County; R. E. Jeffery, Judge.

John Paul was convicted of assault with intent to rape, and he appeals. Reversed, with directions.

The appellant cited the following cases relating to the instructions asked by him and refused: State v. Smith, 33 Atl. 441, 9 Houst. (Del.) 588; State v. Hagerman, 47 Iowa, 151; State v. Kendall, 73 Iowa, 255, 34 S. W. 843, 5 Am. St. Rep. 679; Outlaw v. State, 35 Tex. 481; Jones v. State, 90 Ala. 628, 8 South. 383, 24 Am. St. Rep. 850; Toulet v. State, 100 Ala. 72, 14 South. 403; Norris v. State, 87 Ala. 85, 6 South. 371; Commonwealth v. Merrill, 14 Gray (Mass.) 415, 77 Am. Dec. 336; State v. Priestley, 74 Mo. 24; White v. State, 136 Ind. 308, 36 N. E. 274; Irving v. State, 9 Tex. App. 66; State v. Canada, 68 Iowa, 397, 27 N. W. 288; Charles v. State, 11 Ark. 389; Anderson v. State, 77 Ark. 37, 90 S. W. 846; Harlan v. People, 32 Colo. 397, 76 Pac. 792; Johnson v. State, 63 Ga. 355; Rahke v. State, 168 Ind. 615, 81 N. E. 584; Patterson v. State, 11 O. C. D. 184; Saddler v. State, 12 Tex. App. 194; Sandford v. State, 12 Tex. App. 196; Caddell v. State, 44 Tex. Cr. R. 213, 70 S. W. 91; Dina v. State, 46 Tex. Cr. R. 402, 78 S. W. 229; Fewox v. State, 49 Tex. Cr. R. 172, 90 S. W. 178; Scott v. State, 51 Tex. Cr. R. 5, 100 S. W. 159; Cotton v. State, 52 Tex. Cr. R. 55, 105 S. W. 185.

McCaleb & Reeder, for appellant. Hal L. Norwood, Atty. Gen., and Wm. H. Rector, Asst. Atty. Gen., for the State.

WOOD, J.

John Paul was indicted at the October term, 1910, of the Independence circuit court of the crime of assault with intent to rape, the indictment in due form charging that he made an assault upon one Meldora Masner. He was convicted, and his punishment fixed at three years in the state penitentiary.

The prosecuting witness testified in substance that she was at her home near Batesville on the 4th of June, 1910; that her husband had been to town, had driven to the lot and called to her to come down and help get the goods he had brought from town. She went to the lot, and while there some one came to the gate. She went to the house, met appellant at the gate, and he spoke to her, saying, "Good evening." Appellant asked her if she had any milk, and she stated that she had. He said that he would like to get about a gallon. She said, "All right, where is your bucket?" He stated that he had none, and she said that she could let him have one. Witness stepped into a room, and said to appellant, "Go in, Mrs. Masner is in the house," and he said, "No; I will just wait right here." She went on through a small room into the dining room, and when she got about midway of the dining room floor she saw appellant at the end of the dining room table. It scared her to see him there. She went into the cook room, and as she reached the table appellant rushed up, took hold of her arm, and asked her if she would not like to make a half dollar easy. She jerked loose from him, and ran out into the big road screaming and met her husband; that there was not light in that room, and that it was dark in the room in which appellant took hold of her arm. She also testified that she had no acquaintance with appellant before; had only seen him before this. Witness also stated that appellant knew that her mother-in-law, Mrs. Masner, was in the house at the time of the occurrence and that some small children were on the place.

Elmer Masner, husband of the prosecuting witness, testified that his wife ran out of the house, and met him between the house and barn, and complained to him of the conduct of the appellant; that she was badly scared and crying, when she met him; that he went on to the house, but did not find appellant there.

The court instructed the jury as to the issue to be tried, stating that the offense of which appellant was indicted included that also of assault and battery and simple assault, and read to the jury the sections defining the various offenses included in the indictment. The court also instructed the jury as follows: "(1) If you believe from the evidence beyond a reasonable doubt that the defendant, in Independence county, Arkansas, at any time within three years next before the 29th day of October, 1910, assaulted Meldora Masner with the intent to commit rape upon her by then and there having sexual intercourse with her, forcibly and against her will, you should find him guilty of assault with intent to commit rape, and fix his punishment at imprisonment in the penitentiary for a period of not less than three nor more than twenty-one years."

The court also instructed the jury in instruction No. 4 as to reasonable doubt, and as to the form of their verdict in case they should find the defendant guilty of either simple assault, assault and battery, or assault with intent to commit rape, stating in the last paragraph of the instruction that: "If you find defendant guilty of assault with intent to commit rape, the form of your verdict will be, `We, the jury, find the defendant guilty of assault with intent to commit rape, and fix his punishment at' not less than three nor more than twenty-one years in the state penitentiary." Appellant objected to the instructions and duly preserved his exceptions. Appellant also requested the court to grant the following prayers for instructions: "(1) Before the defendant can be convicted of assault with intent to commit rape, you must believe from the evidence that he assaulted the prosecuting witness, and at the same time intended to use whatever force was necessary to overcome said witness and have sexual intercourse with her, and unless you so find, you should acquit him of the felonious assault. (2) Unless you believe from all the evidence in this case beyond a reasonable doubt that the defendant assaulted the prosecuting witness with the intention of ravishing her, and that he intended to use so much force as would be necessary to accomplish that purpose and overcome her resistance, then you are authorized to find the defendant `not guilty' of an assault to commit rape. (3) Before you would be authorized to find the defendant guilty of an attempt to commit rape, you must believe from all the evidence in the case beyond a reasonable doubt that he not only assaulted the prosecuting witness, but that he did so with the felonious intent of ravishing her, forcibly and against her will; and unless you so find, you should acquit the defendant of an assault with intent to commit rape." These prayers were refused, and the defendant duly saved his exceptions.

In his closing argument to the jury the prosecuting attorney made the following statements: "If there was not enough evidence to convict the defendant of assault with intent to commit rape, the court would not have permitted the case to go to the jury, and this warrants you in convicting him." And, further: "Defendant, by admitting that he is guilty of assault and battery, admitted that he was guilty of assault with intent to commit rape, and admitted himself into the penitentiary." Appellant at the time objected to these statements, and his objections were overruled by the court, after which appellant requested the court to withdraw said argument from the jury, and, the court refusing to do so, appellant duly excepted to the ruling.

Appellant filed his motion for new trial, assigning as errors the various exceptions preserved at the trial, which motion being overruled, he duly prosecutes this appeal.

The...