Reed v. State

• Decision Date: 14 November 1927
• Docket Number: (No. 321.)
• Citation: 299 S.W. 757
• Parties: REED et al. v. STATE.
• Court: Arkansas Supreme Court

299 S.W. 757

REED et al. v. STATE.

(No. 321.)

Supreme Court of Arkansas.

November 14, 1927.

Appeal from Circuit Court, Sebastian County; J. Sam Wood, Judge.

Wick Reed, Edwin Hopkins, Willie Smith, and Alley Box were convicted of carnally knowing and abusing a female under the age of 16 years, and they appeal. Affirmed.

Holland & Holland, of Ft. Smith, for appellants.

H. W. Applegate, Atty. Gen., and John L. Carter and Darden Moose, Asst. Attys. Gen., for the State.

KIRBY, J.

These defendants were all separately indicted, tried, and convicted in the Sebastian circuit court, Greenwood district, of the crime of carnally knowing and abusing one Edna Davis, a female under the age of 16 years, and from judgments of conviction, with the assessment of punishment at one year in the penitentiary, each has prosecuted an appeal to this court. The cases are being tried together here; the questions involved being much the same.

The prosecuting witness, Edna Davis, testified to the two acts of carnal intercourse with the defendant Alley Box, and the undisputed testimony shows that she is a girl about 12 or 13 years of age. There was other testimony that the defendant had been seen talking to the girl once or twice on the streets of the town, and the intercourse stated to have occurred down near the station, beyond the railroad tracks from the town, near where defendant was shown to reside when in the town, and near the home of an aunt of the prosecuting witness, who lived on the same side of the railroad tracks, and whom she visited frequently.

The defendant admitted that he might have talked with the girl on the streets on one or two occasions about buying some candy she was selling; denied having been in the town of Hartford on or near the dates upon which the offenses were said to have been committed; and introduced other evidence in support of his alibi. He also denied ever having had, or attempting to have, sexual intercourse with Edna Davis, and introduced witnesses to establish his previous good reputation.

Several physicians testified, Drs. Jones and Ware for the state, who had made an examination with the others of the prosecuting witness. They stated that she was not as fully developed as she should be, and found that the hymen had not been ruptured, and that her body could not have been entered more than one-half to three-quarters of an inch without its being ruptured. One stated there was some evidence that her private parts had been handled, and an attempt had been made, "but she had never had intercourse, I mean intercourse that ruptured the hymen."

The other physicians testified for the defense; one stating that she had never had any sexual intercourse as he understood it, which could not be committed without rupturing the hymen.

Dr. Johnson stated that he had made an examination of the prosecuting witness 3 or 4 weeks before, and also with the other physicians on the day before the trial, and that he found her sexual organs normal and the hymen unbroken; "that she had not had any sexual intercourse, which he understood to be entering the birth canal by the penis, which could not be done without rupturing the hymen."

There was testimony showing the situation near the station, where the acts were said to have taken place; that there were many lights there, making it a very unfavorable place for satisfactory sexual indulgence.

The court correctly instructed the jury relative to what constituted sexual intercourse, stating that it was not necessary that the penetration should be perfect, or that the hymen should be ruptured in order to constitute the offense, and refused to give appellant's requested instruction No. 1.

It is only insisted for reversal that the evidence is not sufficient to warrant the verdict, and that the court erred in refusing to give said requested instruction No. 1.

The girl's testimony relative to the acts of sexual intercourse, if true, and the jury has believed it, as it had the right to do, is sufficient to support the verdict, as she was not an accomplice, and the law does not require her testimony to be corroborated. Ragsdale v. State, 132 Ark. 210, 200 S. W. 802.

The other assignment of error is that the court erred in refusing to give appellant's requested instruction No. 1, also asked and refused in the other three cases, as follows:

"(1) Although the defendant may be convicted upon the uncorroborated testimony of the prosecuting witness, Edna Davis, provided you believe her statements to be true beyond a reasonable doubt, yet the court tells you that you are not compelled to accept her statements as being true, but it is your duty to consider her testimony in connection with all the other facts and circumstances in the case in arriving at the guilt or innocence of the defendant, and, unless you are satisfied beyond a reasonable doubt, from all the testimony in the case, that the defendant is guilty, it will be your duty to acquit."

This instruction was erroneous, since it singled out the testimony of Edna Davis, the prosecuting witness, and told the jury they were not compelled to accept her statements as being true, etc. The court had given a correct instruction for guidance of the jury in weighing the testimony of all the witnesses, saying:

"In weighing a witness' testimony, you may take into consideration his candor or lack of candor, his knowledge about the things he testifies, the reasonableness or unreasonableness of his testimony, and his interest, if any be shown, in the result of your verdict; and, applying your knowledge and observation of human actions, motives, and affairs, you will find the truth and present that in your verdict,"

—and in another instruction told them:

"Exercise your reason, your judgment, and your common sense in passing on this case, and give the testimony of each and every witness such weight as you think it is entitled to, and let your verdict speak the truth in accordance with the law and the evidence."

It is true the jury only assessed the punishment of appellant at one year in the penitentiary, and made a recommendation that the sentence be suspended, but the jury found appellant guilty of carnal abuse of this girl under proper instruction of the court declaring the law. The testimony is sufficient to support the verdict, and the judgment is affirmed.

In No. 3397, Smith v. State, there are three assignments of error: The first that the evidence is not sufficient to support the verdict; second, that the court erred in refusing to give appellant's requested instruction No. 1, the same instruction that was held correctly refused in the Box Case; and, lastly, because of newly discovered evidence as shown by the affidavit of Dr. Johnson, who had made a physical examination of the prosecuting witness, which affidavit reflects the condition as disclosed in the discussion of his testimony in the Box Case.

The prosecuting witness testified that she and her little brother, 11 years old, had been to the picture show, and met Willie Smith up town, and they agreed up there to have sexual intercourse and where they would go. He told her where to meet him, and she went on down to the place. She testified that the act was committed standing up in the toilet behind the Presbyterian church, and, as it was finished, the officers flashed their lights into the place, and Willie Smith immediately left.

The city marshal and the constable testified that they saw Willie Smith and Edna Davis together on Main street that night going north towards home; they then turned back east to where Edna Davis lived, and then south, and went in behind the Presbyterian church. They first saw them in the main part of town about two blocks from the Presbyterian church between 8:30 and 9 o'clock. When they went out of sight behind the church, the marshal went down on one side and the constable on the other. The marshal heard a noise, and flashed his light in that direction, and saw the little brother standing there; he then went to the coal-house, and Smith came out of the toilet, and the girl was standing in the toilet behind the door. The constable took Smith, and the marshal talked with the girl at the toilet door. He observed something on the floor, but did not examine it closely. The girl made a statement in Smith's presence, telling what they had been doing. Smith did not say anything then, but later on the way to the mayor's office said he would like to pay it off, and...