Paul v. State
| Decision Date | 03 July 1911 |
| Citation | 139 S.W. 287,99 Ark. 558 |
| Parties | PAUL v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Independence Circuit Court; R. E. Jeffery, Judge reversed.
Judgment reversed.
McCaleb & Reeder, for appellant.
1. The instructions 1 and 2 requested by appellant state the law and in view of the evidence one or both of them should have been given. If given, the jury would have understood what was meant by "forcibly and against her will," and "with intent to commit rape" as used in the instruction No. 1 given by the court. 33 A. 441; 47 Ia. 151; 73 Ia. 225; 35 Tex. 481; 8 So. 383; 14 So. 403; 16 So. 371; 14 Gray, 415; 74 Mo. 24; 36 N.E. 274; 9 Tex.App. 66; 27 N.W 288; 11 Ark. 389; 77 Ark. 37; 32 Col. 397; 63 Ga. 355; 168 Ind. 615; 12 Tex.App. 144; Id. 196; 44 Tex. Crim. App. 213; 46 Id. 402; 49 Id. 172; 51 Id. 5; 52 Id. 55.
2. The evidence wholly fails to make out a case of assault with intent to rape. In order to convict, the evidence must show that the defendant's "intent was specific to do the whole of what constitutes the substantive crime." 1 Bishop, New Crim. Law, § § 736-7; 77 Ark. 37; 84 S.W. 505.
3. Even if the intent had been sufficiently proved, appellant could not properly be convicted because no act testified to constitute the beginning or part of the contemplated crime. 77 Ark. 37; 1 Bishop, New Crim. Law, § 737; 49 Ark. 179, 182, and cases cited; Kirby's Dig. § 1583; 73 Ark. 625; 84 S.W. 505; 11 Ark. 409; 32 Eng. Com. Law. Rep. 524; 13 Ark. 360.
4. The closing argument of the prosecuting attorney was most flagrant and prejudicial, inexcusable as an expression of opinion and not justifiable as a correct statement of law. The court's refusal to sustain appellant's objection to such argument was an indorsement thereof in the minds of the jury, and they could not have returned any other verdict than that of guilty without contravening the law as declared by the prosecuting attorney and ratified by the court. 65 Ark. 389; 72 Ark. 461, 469; 76 Ark. 430; 82 Ark. 432, 440.
Hal. L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.
Error is confessed because:
1. The 1, 2 and 3 instructions requested by appellant were proper; and, since they covered a material element in the offense charged, they should have been given.
2. The prosecuting attorney's closing argument was most objectionable. It amounted to a statement of law ratified and approved by the court. It went to the jury as a declaration by the court on the weight of the evidence, contrary to art. 7, sec. 23, Constitution of Arkansas. The court thereby allowed the prosecuting attorney to state that the court thought defendant guilty and that would warrant the jury in convicting. When the court intimates what his opinion is on the facts, this is prejudicial error, calling for reversal. 72 Ark. 461; 65 Ark. 389; 76 Ark. 430; 82 Ark. 432; 95 Ark. 362; 60 Ark. 76; 51 Ark. 147; 43 Ark. 73; 89 Ark. 394; 58 Ark. 367; 69 Ark. 648; 65 Ark. 475.
3. The facts developed in evidence do not sustain the verdict. 88 Ark. 91, and cases cited by appellant.
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 in 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 would 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. 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:
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 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:
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...
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Smaldone v. People
... ... one was avarice, and of the other revenge for a wrong. Motive ... for committing a crime is a state of mind and is in its very ... nature several and personal to the possessor. It is, when ... shown, a circumstance tending to show criminal intent ... state in effect that the court believes [103 Colo. 525] ... defendant guilty.' 16 C.J. 908, § 2257. In Paul v ... State, 99 Ark. 558, 139 S.W. 287, 288, a case ... essentially in point, the prosecuting attorney in closing ... argument to the jury said: ... ...
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...the Prosecuting Attorney in the final argument to the jury; and some cases holding such statements to require reversal are: Paul v. State, 99 Ark. 558, 139 S.W. 287; Thomas v. State, 107 Ark. 469, 155 S.W. 1165. However, I am firmly of the opinion that there was a case made for the jury, an......