Peters v. State

• Decision Date: 18 March 1912
• Citation: 146 S.W. 491,103 Ark. 119
• Parties: PETERS v. STATE
• Court: Arkansas Supreme Court

146 S.W. 491

103 Ark. 119

PETERS v. STATE

Supreme Court of Arkansas

March 18, 1912

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge affirmed.

Judgment affirmed.

C. A Starbird and J. E. London, for appellant.

1. The testimony excluded tended to show that the prosecutrix had a disposition or mania to make false charges against men of carnal abuse. 40 N.W. 473; 66 Ark. 523-5; 16 Cyc. 1181.

2. It was error to give the sixth instruction. It was prejudicial and not neutralized by the statement of the court. It eliminated the question of a reasonable doubt as to the defendant's guilt.

3. The continuance should have been granted.

Hal L Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.

1. The continuance was properly refused; the proposed evidence was not competent, relevant nor material. 1 Whart. Cr. Ev. (9 ed.) § 48b; 34 Ark. 480; 27 L. R. A. 70; 66 Ark. 523, 72 Id. 409; Kirby's Dig., § 3138; 15 Ark. 624.

2. The question propounded to witnesses were improper. Answers thereto would have elicited answers wholly collateral, irrelevant and immaterial. Cases supra. It was not admissible to even prove a mania for making false charges. 66 Ark. 523. Even if she had made such charges, there is nothing to show that they were false.

3. The indictment is fully sustained by 50 Ark. 330, 76 Id. 267, 93 Id. 168.

OPINION

FRAUENTHAL, J.

The defendant was indicted for the crime of rape, alleged to have been committed upon the person of one Della Smith, a girl under the age of sixteen years. The jury returned a verdict finding the defendant guilty of the crime of carnal abuse of a female under the age of sixteen years, but without fixing the punishment. The court thereupon assessed his punishment at a term of twenty-one years' imprisonment in the State Penitentiary.

Counsel for defendant made no complaint of any defect in the indictment under which he was tried, or that the crime of which he was convicted was not included in the charge therein made; nor would any complaint in this regard be availing.

The carnal knowledge of a female under the age of sixteen years is an offense consisting of different degrees. If the offense is committed forcibly and against the will of the female, either in fact or in law, it will constitute rape; but if it is committed with her consent, it will constitute carnal abuse. An indictment for rape of a female under the age of sixteen years will therefore sustain a conviction of carnal abuse. Henson v. State, 76 Ark. 267, 88 S.W. 965; Coates v. State, 50 Ark. 330, 7 S.W. 304; Bowman v. State, 93 Ark. 168, 129 S.W. 80.

Counsel for defendant urge that the judgment should be reversed upon the following grounds: (1) that the court erred in refusing to grant a continuance; (2) that error was committed in refusing the admission of certain testimony offered by him; (3) in the ruling made by it upon an instruction given to the jury.

The girl, Della Smith, was between twelve and thirteen years of age at the time of the trial of this case, and was living with her mother in the town of Graphic, about one hundred yards from the defendant. The defendant is a practicing physician, and had been the family physician of Mrs. Smith both prior to and after her husband's death, which occurred in March, 1909. Shortly before and after her father's death, the defendant was accustomed to take Della Smith in his buggy and travel around frequently with her in visiting his patients, who lived several miles from Graphic, sometimes after dark. The testimony on the part of the State tended to prove that he paid marked attention to her; he accompanied her upon fishing expeditions and to revival meetings, and on several occasions she went to his office, where they were alone. He claimed that he did this only because he had been a great friend of her father, and that he only paid to her the attention that a father would. But his deep concern in and great attention to her caused comment in the community where they lived, and finally a coldness upon the part of the mother. He noticed this, and thereupon asked the mother the reason for her estrangement, and she told him that it was because he was causing adverse comment relative to him and her daughter.

The little girl, Della Smith, testified that for two or three years prior to the date of the trial the defendant had treated her with undue familiarity; that he took her upon his lap in an indecent position and fondled her with excessive kissing. Upon further examination, she gave in detail his various acts of carnal abuse of her. In substance, she testified that he had obtained intercourse with her on a number of occasions, and at various places, during 1910 and the summer of 1911. In some minor details she was corroborated by other witnesses, principally in being alone with the defendant at his office and in the woods, and at his home--places at which she testified he had violated her virtue. Some time before the trial of the case a physician made a thorough examination of her, and testified that her hymen had been ruptured, and for a sufficient time for the parts to heal, indicating that she had been despoiled.

Upon the cross examination of Della Smith, she was asked by the defendant's counsel if she had told one Linda Simmons that defendant had her and another girl at his office and kept them there all day; also, if she had told this party that old man Sanders had had intercourse with her. She was asked if she had told Jennie England that defendant had had her and another girl in his office and had intercourse with both of them. She was further asked if she had told a Mr. Bruce that she had had sexual intercourse with men a great number of times. All of these questions the witness answered in the negative. The defendant introduced these various persons to whom the above alleged statements had been made by Della Smith, and asked each of them whether such statements had been made to them by her, but the court in each instance refused to permit the question to be answered.

It is earnestly insisted by counsel for defendant that the court erred in refusing to permit these questions to be answered by these witnesses. It appears from the record that in the lower court counsel for defendant contended that this testimony was admissible for the purpose of showing that the rupture of the hymen was caused by some one other than the defendant. The defendant was convicted of the crime of carnal knowledge of Della Smith, a female under the age of sixteen years; and such carnal knowledge of a female under that age is made in itself a crime. The fact, therefore, that she had also had sexual intercourse with some person other than the defendant would be entirely immaterial in such a case. As is said in the case of Plunkett v. State, 72 Ark. 409, 82 S.W. 845: "The only question in a charge of this kind is whether appellant had sexual intercourse with the prosecutrix."

Upon this appeal it is urged, however, that this testimony was competent because it tended to prove the disposition upon the part of the prosecutrix to make false charges of the character involved in this case, and thus to show the falsity of the present charge made by her against the defendant. But we think the purpose and effect of the admission of this testimony would simply have been to impeach the credibility of the witness, Della Smith. In the case of Butler v. State, 34 Ark. 480, the following rule relative to the admissibility of contradictory statements made by a witness is quoted with approval from 1 Wharton on Evidence, § 599: "In order to avoid interminable multiplication of issues, it is a settled rule of practice that when a witness is cross examined on a matter collateral to the issue, he can not, as to his answer, be subsequently contradicted by the party putting the question. The test of whether a fact inquired of in cross examination is collateral is this: "Would the cross examining party be entitled to prove it as a part of his case, tending to establish his plea?"

In the case of McArthur v. State, 59 Ark. 431, 27 S.W. 628, Mr. Justice RIDDICK, speaking for the court, said "The general rule is that when a witness is cross examined on a matter collateral to the issue his answer can not be subsequently contradicted by the party putting the question; but this limitation only applies to answers on the...