Scott v. State
| Decision Date | 07 February 1972 |
| Docket Number | No. 5667,5667 |
| Citation | 475 S.W.2d 699,251 Ark. 918 |
| Parties | Lawrence Jo Jo SCOTT, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Louis W. Rosteck, Little Rock, for appellant.
Ray Thornton, Atty. Gen., James A. Neal, Asst. Atty. Gen., Little Rock, for appellee.
In the court below, charges of rape and assault with intent to kill were tried together by the circuit judge, without a jury. The appellant was found guilty of both offenses and was sentenced to life imprisonment upon the charge of rape and to twenty-one years imprisonment upon the second charge.
The appellant first questions the sufficiency of the evidence to support either conviction. Before narrating the proof we should explain that the State was handicapped in presenting its case by its inability to produce an eyewitness to either crime. The victim of the asserted rape was a two-year-old child, too young to testify. The victim of the assault was the child's father, Tal Daniell, but he was killed in an automobile accident before the case was tried.
On the afternoon of August 16, 1970, witnesses saw Scott (the defendant), Daniell, and the child leave Sims' Cafe, near Little Rock, in a truck. The three were seen a short time later at the nearby home of Scott's aunt, Dora West, who testified that Scott made an effort to sell a tire to Daniell, but the tire offered was not the right kind. Mrs. West also testified that a .25-caliber pistol owned by Scott was still in a drawer in her house when the officers came to investigate later that day.
The sequence of events is not completely clear, but apparently Scott was next seen in the neighborhood at the home of Mrs. West's daughter, Essie Duff. Mrs. Duff testified that while she was sitting in her yard Scott went in her house, came out again, and left. Mrs. Duff's sister had put a .38-caliber pistol in a drawer in Mrs. Duff's house, but Mrs. Duff testified that Scott did not know the weapon was there, nor did she see that Scott was carrying anything when he left.
Back at Sims' Cafe, about thirty minutes after Scott and the other two left in the truck, bystanders at the cafe heard a shot down in the woods. Daniell and his daughter then drove up in the truck. Daniell was calling for help, saying that he had been shot (though the proof does not show what part of his body was hit). The child was standing up in the truck with blood running down both her legs. Later that afternoon Mrs. West talked to Scott by telephone and, with his consent, picked him up and turned him over to the deputy sheriffs, who were looking for him. Scott's sister testified that when she visited him at the jail that night Scott said that he had not touched the little girl. He also said that while he and 'the man' were tussling, 'the gun went off,' which so scared Scott that he left the truck and ran away.
That same night the officers obtained the .38-caliber pistol that Essie Duff's sister, Elsie Harris, had left at Mrs. Duff's house. The pistol was in the drawer where it was kept, fully loaded except that one shot had been fired. Mrs. Harris testified that she had not fired the pistol. An officer testified that the weapon smelled as if it had been recently fired. The officers found a .38-caliber bullet lodged in the cab of the truck, but it was too extensively damaged to be identified as having come from any particular gun.
We find the proof insufficient to support a conviction for assault with intent to kill. The evidence to sustain such a charge must show a specific intent to kill. Francis v. State, 189 Ark. 288, 71 S.W.2d 469 (1934); Davis v. State, 115 Ark. 566, 173 S.W. 829 (1914). In the case at bar the State's proof is fatally deficient in that respect. Since we are remanding the case for a new trial, for other errors, we shall not speculate upon what lesser included offense might be sustained by the proof.
On the other hand, we find the evidence sufficient to sustain a conviction for rape. The child's vaginal area was so severely lacerated that Dr. Porter had to examine her by means of a general anesthetic. The lacerations had bled profusely. Dr. Porter stated that the entrance to the vagina suggested that the laceration was not large enough to have admitted a penis, but an attempt at entry might have been made, causing the injuries. The injuries might also have been caused by any...
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