Rowe v. State
| Decision Date | 30 October 1922 |
| Docket Number | 233 |
| Citation | 244 S.W. 463,155 Ark. 419 |
| Parties | ROWE v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Miller Circuit Court; George R. Haynie, Judge; reversed.
Judgment reversed, and cause remanded.
B E. Carter and J. M. Carter, for appellant.
J S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
Appellant was convicted of carnally knowing Pernie Braswell, a female under the age of sixteen years, and has appealed.
The prosecutrix did not expressly testify that appellant was the father of her child, which she produced in court and which she testified was born on April 16, 1922, but, on her direct examination by the prosecuting attorney, a showing was made of act of sexual intercourse with defendant at about the time when conception must have taken place.
The prosecution did attempt, however, to fasten the paternity of the child on appellant through the testimony of a Mrs. Dixon.
This witness testified that appellant told her, before the child was born, that he was its father. On her cross-examination she was asked if the prosecutrix had not stated to her that appellant was not the father of the child; that Joe Holt was its father, but that she would go to hell before she would put it on Joe.
The defendant denied he had ever had sexual intercourse with the prosecutrix; he denied that he had ever gone with her, and the girl admitted that defendant had never visited her, and her parents, who were witnesses in the case, also admitted that they never knew defendant to pay their daughter any attention. The prosecutrix admitted that defendant had never courted her and that she never loved him, and the defendant attempted, by his cross-examination of her, to show that Joe Holt had been and was her sweetheart, and that she was in love with him; but the court held this testimony incompetent. It was the theory of the defense that the prosecutrix had become pregnant by Joe Holt, and that she sought to protect him by falsely accusing defendant.
The defendant asked the prosecuting witness, on cross- examination, if she had not had sexual intercourse with Joe Holt, and an objection to that question was sustained. The defendant also offered to prove by certain witnesses that Joe Holt had had sexual intercourse with the prosecutrix, and offered to prove such acts of intercourse about the time the child was begotten; but the court excluded this testimony.
The defendant undertook to show that during the summer of 1921 (this being the time when the prosecutrix testified defendant had intercourse with her) he was in Kansas City, and that he did not return until eight months before the child was born.
Defendant also called the physician who delivered the child and asked him what the ordinary period of gestation was, and whether the child was fully developed at the time of its birth and appeared to be a normal, fully developed child; but the court excluded this testimony.
It appears, from the above recitals, that the judgment of the court must be reversed. Defendant should have been allowed to ask the prosecutrix about acts of intercourse with other men for the purpose of impeaching her character as a witness. This was, of course, a collateral matter, and her answers, whether true or false, would have concluded the inquiry so far as impeaching her character as a witness was concerned. King v. State, 106 Ark. 160, 152 S.W. 990; Howell v. State, 141 Ark. 487, 217 S.W. 457; Jordan v. State, 141 Ark. 504, 217 S.W. 788; Davis v. State, 150 Ark. 500, 234 S.W. 482.
But this cross-examination was also competent, under the facts of this case, as bearing on the paternity of the child. The State had attempted to show the defendant was the father of the child by his own admissions to that effect, and by the testimony of the prosecutrix that the acts of intercourse occurred about the time conception must have taken place.
We recently had occasion to consider the rule of evidence in the circumstances stated in the case of McDonald v State, ante p. 142. It was there said: ...
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