Poole v. State

• Decision Date: 05 February 1962
• Docket Number: No. 5023,5023
• Citation: 353 S.W.2d 359,234 Ark. 593
• Parties: L. C. POOLE, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 359

353 S.W.2d 359

234 Ark. 593

L. C. POOLE, Appellant, v. STATE of Arkansas, Appellee.

No. 5023.

Supreme Court of Arkansas.

Feb. 5, 1962.

Harold Sharpe, Forrest City, for appellant.

J. Frank Holt, Atty. Gen., by Thorp Thomas, Asst. Atty. Gen., for appellee.

WARD, Justice.

Appellant, L. C. Poole (a colored man), was convicted on a charge of assault with intent to rape a fourteen year old white girl and sentenced to serve the minimum term of three years in the penitentiary. On appeal appellant urges two points for a reversal, viz.: (1) Insufficiency of the evidence, and (2) the court's refusal to give a certain instruction requested by him.

1. This point will be considered under two subheads, viz.: (a) Insufficiency of evidence to show appellant was the man who made the assault, and (b) insufficiency of evidence to show the specific intent to rape.

(a) The evidence shows (and appellant makes no attempt to deny) that a colored man assaulted the girl at approximately 6:15 Saturday evening, January 28, 1961 in Forrest City. It is also undisputed that the girl gave a correct account of the assault. Although the testimony raises grave doubts, we think, that appellant is the person who committed the assault, we do find substantial evidence from which the jury could find he is. Therefore, since we are reversing the judgment of conviction on point (b), we will set out only such testimony as relates to that point.

The prosecuting witness testified in substance, as follows:

I am 14 and I have lived in Forrest City since I was born. I left my mother at Kimball's and went up the street to go to my brother's house; I heard someone running and when I turned my head, he grabbed me by the throat, putting one arm around my neck, and I pulled his hand off my mouth and screamed; He said he would kill me if I didn't stop screaming; He drug me under the viaduct; I was not screaming when Ruben Homewood came, because he had put his hand over my mouth; When he saw Ruben Homewood coming, he turned and ran on the side of the viaduct and Ruben went on behind him. Outside of the defendant having his hand on my mouth and throat, no other part of my body was touched. I am positive of that, just my mouth and throat were touched.

The above is all of the evidence tending in any way to show the intent of appellant to rape.

(b) Undoubtedly the girl's testimony (and we accept it as true) raises a strong suspicion that appellant intended to rape her, and this suspicion is not weakened by the fact that he is colored and she is white. However, under our system of jurisprudence, no one can be convicted on suspicion alone. In a case of this type the essence of the charge is 'intent' and it must be proved by evidence beyond a reasonable doubt, even though it may be proved by circumstances surrounding the assault. Therefore, in line with our judicial system and to avoid a miscarriage of justice, our Court has clearly pronounced certain safeguards that we are bound to observe. Such safeguards are clearly recognizable in our decisions referred to hereafter.

Anderson v. State, 77 Ark. 37, 90 S.W. 846. A girl 10 years old was waiting at a railroad station when Anderson, a stranger, accosted her and told her he was to look after her; he took her behind the depot and offered her $10; he offered her a present, and asked her to go see some children; he kissed her and tried to pull her into an alley. The girl began to cry and Anderson left. The trial court convicted Anderson for assault with intent to rape. In reversing the conviction this Court, among other things, said: '* * * the unlawful act must be the beginning or a part of the act to injure, of the perpetration of the crime, and not [a part] of preparation to commit some contemplated crime'. To illustrate what the Court meant, it pointed out 'Anderson never attempted to have sexual intercourse with Pearl Bond by force or consent. He never asked her for permission; never put his own person in condition or position for such an act; never attempted to raise her clothes or to throw her down, or to do acts without which sexual intercourse could not be accomplished'. The analogy and application of that case to this case is too obvious to require comment.

Paul v. State, 99 Ark. 558, 139 S.W. 287. Here appellant entered the home of a housewife under the pretense of wanting to buy some milk; when she entered the dining room appellant '* * * rushed up, took hold of her arm, and asked her if she would not like to make a half dollar easy'. She broke loose and ran out of the house screaming. Appellant was convicted of assault with intent to rape. Although the assault there differed from the assault here and although some circumstances there are not present here, this Court, in reversing the case, did not rely on them but placed its decision squarely on the reasoning set forth in the Anderson case, supra, from which it quoted much of what we have quoted heretofore. The Court did say, as we say here, that the evidence was not sufficient to sustain a conviction of assault with intent to rape, '* * * but that it will sustain a judgment for an assault and battery * * *.'

Douglass v. State, 105 Ark. 218, 150 S.W. 860, 42 L.R.A.,N.S., 524. Appellant entered the bedroom of the prosecuting witness at night; he was on his knees beside the bed holding her hand; he had a gun and told her to keep quiet or he would kill her; he said what he was there for; he put his hands on her. His conviction for assault with intent to rape was reversed on appeal. Again there were some other facts not present in the case before us, but again this Court did not rely on them to reverse the case. Instead the Court cited and followed the reasoning in the Anderson and Paul cases, supra, stating:

'Undoubtedly, if he had drawn the pistol for the purpose of inflicting death upon the assaulted girl, the crime of assault with intent to kill would have been complete, even though he desisted from carrying out his intention; and, if he had placed his hand upon the girl as a part of the act of having sexual intercourse and with intent to secure carnal intercourse with her, this would have completed the offense of assault to commit rape. But, according to this testimony, his taking hold of the hand of the girl for the purpose of waking her up and the drawing of the pistol on her were merely a part of the preparation for the act, and not an overt attempt to commit the act itself.'

There the Court also, in reversing the case, said: 'The evidence may be sufficient to justify a conviction of a lower degree of assault, and for that reason the cause is remanded for a new trial'.

Wills v. State, 193 Ark. 182, 98 S.W.2d 72. There the prosecuting witness was going down a road when appellant grabbed her, put his arms around her; he tore her shirt, invited her to go home with him, and a little later he slung her in a ditch and hit her; she began to 'holler' and a Mr. Fleming came down to where they were. The girl did not say whether appellant tried to rape her and she didn't say he did not try. The trial court convicted appellant for assault with intent to rape, and this Court reversed. In doing so the Court, among other things, approved this statement relative to what is necessary to prove the intent to rape: '* * * the intent is to be ascertained from the commission of some act or acts at the time or during the progress of the assault'. (Emphasis added.)

It appears to us that the phrase above emphasized clearly pinpoints the essence of this Court's holdings in the cases previously cited. That is, the assault itself is not sufficient to show intent in cases of this type, but there must be some act or words in connection with the assault to show the intent of the assault. It is conceded, or must be conceded, that there were no such acts or words in connection with the assault in the case under consideration. Such being the situation the jury had to arrive at the intent of appellant by speculation or conjecture. The Court in the Wills case said: 'Speculation and conjecture cannot be substituted for affirmative facts and circumstances.'

2. Since, for reasons already set out above, we are reversing the judgment of the trial court, we deem it unnecessary to discuss fully the court's refusal to instruct on other offenses. Appellant asked the court to instruct on simple assault, and the court refused to do so. In this the court was correct because, in our opinion, the facts show appellant (if he is the man wo committed the assault) to be guilty of some higher degree of assault than mere simple assault.

As shown by the authorities cited heretofore, we have the power, upon reversal, to remand the cause for another trial, and we have chosen to do so in this instance. In this connection see also: Reed v. State, 97 Ark. 156, 133 S.W. 604; Johnson v. State, 210 Ark. 881, 197 S.W.2d 936; Grigson and Gibson v. State, 221 Ark. 14, 251 S.W.2d 1021; and Anderson v. State, 226 Ark. 498, 290 S.W.2d 846.

The judgment of the trial court is accordingly reversed, and the cause is remanded for a new trial.

GEORGE ROSE SMITH, ROBINSON, and BOHLINGER, JJ., dissent.

ROBINSON, Justice (dissenting).

The appellant is a negro man, married and the father of a child. Certainly in marking the attack on the 14 year old white girl at a lonely spot in the nighttime he had an intent to do something besides merely choke her and drag her under a viaduct. In addition to choking her and dragging her under the viaduct, he put his hand over her mouth and threatened to kill her if she screamed. These actions all indicate an intent to do something.

Twelve men, qualified jurors, who had the opportunity to see and hear both the defendant and the little girl, said that they believed that the defendant intended to rape the child. Here, the majority is saying that the jury had no valid right to reach such conclusions. Since the majority has said that the evidence is not...