Scott v. State

• Decision Date: 28 September 1925
• Docket Number: 126
• Parties: SCOTT v. STATE
• Court: Arkansas Supreme Court

275 S.W. 667

169 Ark. 326

SCOTT v. STATE

No. 126

Supreme Court of Arkansas

September 28, 1925

Appeal from Crawford Circuit Court; James Cochran, Judge; affirmed.

Judgment affirmed.

O D. Thompson and Robert L. Rogers, for appellant.

H W. Applegate, Attorney General, and John L Carter, Assistant, for appellee.

OPINION

MCCULLOCH, C. J.

Appellant was convicted of carnal abuse of a girl about fourteen years of age. The girl testified that on a certain night she was returning home alone from a religious service in the neighborhood, and that appellant accosted her and forcibly had sexual intercourse with her. The parents of the girl, and other witnesses introduced by the State, testified that she was fourteen years of age at the time.

The first assignment of error relates to the ruling of the court in refusing to grant appellant's motion for a continuance on account of the absence of a witness, who would have testified, according to the allegations of the motion, that the girl was more than eighteen years of age at the time of the alleged commission of the crime. In the motion for a continuance it was stated that the absent witness would testify that she was acquainted with the girl and knew her to be more than eighteen years of age; that the witness had been summoned and was not absent by the connivance or procurement of appellant, and that the witness was physically unable to be present at the trial, but that her attendance or deposition could be procured if the cause was continued. The motion contained no details as to the character of the physical disability of the witness and no evidence was offered of such disability. The motion merely stated that the witness "is physically unable to be present at this date." The allegations in the motion were therefore insufficient to justify the court in granting a continuance. Wood v. State, 159 Ark. 671, 252 S.W. 897.

It is next contended that the testimony of the injured girl was extorted from her by duress exercised by the trial judge and the prosecuting attorney, and that the court erred in permitting the witness under those circumstances to testify against appellant. The testimony of the girl is set forth in full in the record, and it appears that she was called by the State as the first witness, and, after a few preliminary questions concerning her age and acquaintance with appellant she was informed by the prosecuting attorney of the charge against appellant and requested to "go ahead and tell the jury all about it and just what happened." To this question the witness made no answer, and, after being urged by the prosecuting attorney to "go ahead and tell where you had been and all about it," the girl began crying, whereupon the trial judge said, "Go ahead, young lady, and tell the truth; nobody is going to hurt you. Just tell what occurred out there." The girl made no answer either to the trial judge or to the prosecuting attorney, and, after repeated urging without results, the court suggested to the prosecuting attorney that he call another witness and that "maybe the witness can collect herself and answer your questions by that time." The girl was then temporarily excused from the witness stand, and her father was put on the stand to testify concerning her age and certain other matters. The girl was then recalled to the witness stand, and made no answer to any of the questions propounded to her. Her attitude was manifestly one of unqualified refusal to answer questions, and finally the court said to her, "Young lady, I am getting out of patience with you. I think it is as much stubbornness as anything else. Take your hands down from your face and answer the question." The court then directed the girl's father to take her into the jury room and "see if you can do...