Paxton v. State

• Decision Date: 12 May 1913
• Citation: 157 S.W. 396,108 Ark. 316
• Parties: PAXTON v. STATE
• Court: Arkansas Supreme Court

157 S.W. 396

108 Ark. 316

PAXTON v. STATE

Supreme Court of Arkansas

May 12, 1913

Appeal from Pulaski Circuit Court, First Division; Robert J. Lea Judge; affirmed.

Judgment affirmed.

Carmichael Brooks, Powers & Rector, and S. A. Jones, for appellant.

1. The crime made out was rape, or it was nothing. The verdict is a manifest compromise, not responsive either to the law or the facts. It is patent that the jury did not find the prosecuting witness worthy of belief, that they did not find beyond a reasonable doubt that the element of force was present, or their verdict must have been "guilty of rape," because the other element, penetration, was admitted.

2. The testimony as to appellant's beating and maltreating his wife was inadmissible. A party charged with one crime can not be convicted upon evidence of the commission of another crime. 37 Ark. 261; 39 Ark. 278; 73 Ark. 262; 99 Ark. 615.

3. There was no sufficient foundation laid for the introduction of the testimony of Enos Brown, given at the hearing before the justice of the peace, no sufficient showing that he had left the State. 63 Ark. 131; 58 Ark. 371.

4. Appellant's general reputation had not been put in issue and his objection to such testimony should have been sustained. 91 Ark. 558, 560; 28 Ark. 164; 39 Ark. 337. The court, in its charge, nowhere instructed the jury that the reputation of the defendant should not be considered for any purpose except as affecting his credibility as a witness, and that they could convict him of rape, or of assault to commit rape, upon proof that he was guilty of some other offense.

5. It is prejudicial error to submit to a jury an issue not raised by the evidence. In this case, where the undisputed evidence shows that there was no attempted intercourse, but that the intercourse was complete, it was error to charge the jury that they might convict of assault with intent to commit rape. Kirby's Dig., § 2382; 30 Ark. 336; 91 Ark. 574; 74 Ark. 444; 50 Ark. 508; 85 Ark. 514; 77 Ark. 464; 95 Ark. 409; 29 S. E. (Ga.) 424; 64 S. E. (Ga.) 653; 89 S.W. 271; 96 N. E. (Ill.) 1007; 143 S.W. 51; 87 Ga. 579; 141 Cal. 686; 100 Ia. 155; 118 S.W. 1022; 33 Cyc. 1503-4; 2 Bishop, New Crim. Pros., § 980.

That part of instruction 7, charging the jury: "If he did not consummate that crime (rape), but attempted to do it, he is guilty of assault with intent to rape," is further erroneous in that there must be more than an attempt. 99 Ark. 563; 77 Ark. 37.

Wm. L. Moose, Attorney General, and John P. Streepey, Assistant, for appellee.

1. There is ample evidence to sustain the verdict.

2. The testimony of the prosecutrix as to appellant's assaulting his wife, was, under the circumstances, admissible, as tending to prove the intent existing in the mind of appellant to have intercourse with prosecutrix. 91 Ark. 555, 559.

3. Sufficient foundation was laid for admitting the testimony of Enos Brown, taken before the justice of the peace, it having been shown that diligent inquiry had been made to locate his whereabouts. 99 Ark. 629, 631; 95 Ark. 172, 177.

4. Testimony touching appellant's reputation for truthfulness and morality was properly admitted, for the purpose of impeaching his testimony. 46 Ark. 141, 151; 100 Ark. 199, 202; Id. 321, 324.

5. It was not erroneous for the court to instruct the jury as to the lower grade of the offense charged, as well as the crime charged, and it was within the province of the jury to find from the evidence that appellant was guilty of the crime of assault to commit rape rather than that of rape. Kirby's Dig., § 2413; 51 Ark. 167, 169; 32 Am. St. Rep. 134, 136; 80 Ky. 526; 7 Conn. 54, 56; 41 Minn. 285-7; 1 Bishop, Crim. Law, § 733; Id., § 766; 78 Am. Dec. 609; 91 Ark. 589; Id. 562.

OPINION

KIRBY, J.

The appellant was indicted for the crime of rape, and from the judgment of conviction of an assault with intent to rape, brings this appeal.

He admitted having sexual intercourse with the prosecuting witness at the time and place she claimed to have been raped, and testified that it was with her consent and co-operation. It is conceded, however, that the testimony is amply sufficient to sustain a conviction of rape, if believed.

It is contended for reversal that the court erred in giving certain instructions, in the admission of incompetent testimony, and that the verdict of the jury is contrary to the law and the evidence, counsel for appellant saying:

"Without going into a detailed discussion of the evidence, it is submitted that there is no possible view of the evidence which will support a finding that appellant was guilty of an assault with intent to rape. * * * The crime was made out rape, or it was nothing."

An assault with intent to rape is included in the charge of rape, and a conviction may be had of the former offense under an indictment for the latter, and the appellant will not be heard to complain that because he was not convicted of the offense of rape, that he could not be guilty of an assault to commit the offense, which the testimony was amply sufficient to show he did commit. Pratt v. State, 51 Ark. 167, 10 S.W. 233; Kirby's Dig., § 2413; Skaggs v. State, 88 Ark. 62, 113 S.W. 346; Green v. State, 91 Ark. 562, 121 S.W. 949; Sexton v. State, 91 Ark. 589, 121 S.W. 1075; Hamer v. State, 104 Ark. 606, 150 S.W. 142.

He also contends that, having admitted carnal knowledge of the woman, that the court erred in charging the jury relative to an assault with intent to commit rape. A man can be guilty of an assault with intent to rape, if he assaults a woman with the intention of having carnal knowledge of her, forcibly and against her will, even though after the assault is made she finally yields to his embraces and consents to the intercourse. Such subsequent yielding and consent does not mitigate nor justify the assault with the intent to commit the crime. State v. Cross, 12 Iowa 66; State v. Atherton, 50 Iowa 189, 32 Am. Rep. 134; State v. Shepard, 7 Conn. 54; State v. Bagan, 41 Minn. 285, 43 N.W. 5; 1 Bishop Crim. Law, §§ 733-736; State v. Hartigan, 32 Vt. 607, 78 Am. Dec. 609.

If the court was not required to submit to the jury the question of an assault with intent to rape in this case, the defendant can not complain of its action in doing so, since, otherwise, it was an instruction more favorable to him than he was entitled to have given.

Neither is the instruction open to the objection that it was incorrect, not specifying that the attempt to have carnal knowledge of the woman must have been forcibly and against her will, since an assault with intent to rape was correctly defined immediately above the expression used which followed the sentence: "If he had carnal knowledge of the woman, as charged in the indictment, forcibly and against her will, he is guilty of rape; if he did not consummate that crime, but attempted to do it, he is guilty of assault with intent to rape." The instructions were given as one, and the jury could not but have understood that before he could be found guilty of an assault with intent to rape, they must find that he attempted to have carnal knowledge of the woman forcibly and against her will. And, besides, if the instruction was erroneous, it was such an error as called for a specific objection, which was not made.

No error was committed in the court's instruction that "the defendant starts out in the trial with the presumption of innocence in his favor, and that presumption follows him throughout the trial, or until the evidence convinces you of his guilt, beyond a reasonable doubt," which meant no more than that, "the presumption prevails until overcome by evidence convincing the jury, beyond a reasonable doubt, of his guilt," as said in Ross v. State, 92 Ark. 481.

The next assignment is, that the court erred in permitting the introduction of testimony relating to the general reputation of the defendant, it being claimed that he had not put his...