Smedley v. State

• Decision Date: 02 July 1917
• Docket Number: 79
• Citation: 197 S.W. 275,130 Ark. 149
• Parties: SMEDLEY v. STATE
• Court: Arkansas Supreme Court

197 S.W. 275

130 Ark. 149

SMEDLEY v. STATE

No. 79

Supreme Court of Arkansas

July 2, 1917

Appeal from Pike Circuit Court; Jefferson T. Cowling, Judge affirmed.

Judgment affirmed.

W. S Coblentz and W. T. Kidd, for appellant.

1. The motion for continuance should have been granted. The testimony was material and due diligence shown. 55 S.W. 204 42 Ark. 273; 60 Id. 564.

2. The indictment alleged that defendant and the prosecutrix were both unmarried. There is not a syllable of proof that either of them were single. The burden was on the State to prove the allegation. 35 Cyc. 1345; 93 Cal. 74; 108 Mo. 658; 1 Wis. 209; 114 Ark. 310; 8 R. C. L. 219.

3. There was no corroboration of the prosecutrix, unless it be certain admissions of defendant. The admissions or confessions, if made, were not voluntary nor free from improper influences. 74 Ark. 397; 1 R. C. L. 559; 66 Ark. 53; 28 Id. 121; 50 Id. 501; 47 Id. 172; 22 Id. 336; 50 Id. 305; 66 Id. 506. See also 1 R. C. L. 584.

4. Proof of other crimes was not admissible. Jones on Ev., § 143. The question as to whether defendant had not been compelled to leave Pike County for seducing another girl was improper and prejudicial. 39 Ark. 278; 73 Id. 262; 72 Id. 586; 91 Id. 555.

5. Under peculiar circumstances affording a presumption of truth hearsay evidence is admissible. 12 Ark. 782; 1 R. C. L. 575.

6. The statute provides that the promise must be express. It was error to give the first instruction without this word. Kirby's Dig., § 2043. The peremptory instruction asked by defendant should have been given, as there was no proof that either defendant or prosecutrix were unmarried. 35 Cyc. 1345.

7. If prosecutrix consented through curiosity or passion, then no crime was proven. 35 Cyc. 1333; 79 Ala. 14; 112 Ga. 871; 132 Mich. 58. Passion, instead of the promise, may have been the inducing cause.

8. The trial was not in accord with well-established rules of law. 116 U.S. 616.

John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. The continuance was properly refused for want of due diligence. The matter was within the sound discretion of the court below. The burden to show abuse of discretion was upon appellant. 79 Ark. 594; 82 Id. 203; 91 Id. 497; 94 Id. 169; 103 Id. 352; 100 Id. 132; 78 Id. 36; 92 Id. 28.

2. It was not necessary to prove that defendant was unmarried. Kirby's Digest, § 2043; 95 Ark. 555; 98 Mo. 368; 16 So. 264; 69 Ark. 322; 73 Id. 139; 77 Id. 23; 84 Id. 67. Whether a person is married or unmarried may be proved by circumstantial evidence. 95 Ark. 555; 92 Id. 421; 66 Minn. 327; 52 N.J.L. 207; 8 Kan. 220.

3. The testimony of the prosecutrix was corroborated by defendant's own testimony. 84 Ark. 67; 92 Id. 421.

4. The confessions or admissions were not made under duress. Whether voluntary or not was a matter addressed to the sound discretion of the court below. 72 Ark. 145.

5. The question as to whether he left Pike County once before for seducing a girl was on cross-examination and merely affected his credibility as a witness. 100 Ark. 324; 74 Id. 397; 44 Id. 122, 141; 8 N.D. 548, etc.

6. The testimony of Westfall as to what Hamilton told was hearsay purely, and inadmissible.

7. No specific objection was made to the first instruction because it omitted the word "express." 95 Ark. 100; 73 Id. 315; Teel v. State, 129 Ark. 182. But if error, it was cured by No. 4 given by appellant. 17 Ark. 292.

8. There was no error in refusing No. 5 asked by appellant. It is ambiguous. There was no testimony as to "curiosity" or passion. Besides, it was covered by other instructions given. Trial courts are not required to duplicate instructions.

OPINION

WOODY, J.

Appellant was indicted at the March term, 1917, of the Pike Circuit Court for the crime of seduction, the indictment charging that Will Smedley, "on the 1st day of April, 1916, being a single and unmarried man, did unlawfully and feloniously obtain carnal knowledge of one Rosa Jackson, a single and unmarried female, by false expressed promise of marriage," etc.

I. The indictment was returned on the 21st of March. Appellant was arrested on that day. The case was called for trial on March 26. Appellant moved for a continuance, setting up that one Mike Hamilton was a material witness in his behalf; that he resided within four or five miles of Murfreesboro, in Pike County; that he had a subpoena issued for him on the morning of the 24th of March, 1917; that he was temporarily absent, but would return in a short time to his home; that if present he would testify that he had had sexual intercourse with Rosa Jackson two times in January, one time in February and three times in March, of the year 1916, and a number of times since that date. The motion was in due form. The court overruled the motion, and this ruling is made one of the grounds of the motion for a new trial.

The motion discovers that the absent witness lived within four or five miles of the courthouse. Three days elapsed after the warrant was served on appellant before he asked for a subpoena for this witness. While the motion discloses that he was temporarily away, it does not show that the witness was beyond the jurisdiction of the court. The burden was upon appellant to show that he had exercised due diligence, and the showing is not sufficient, at least to convince us, that the trial court abused its discretion, that is, that he acted arbitrarily or capriciously, upon the showing made, in overruling appellant's motion. Loftin et al. v. State, Use, etc., 41 Ark. 153, 155; Jackson v. State, 94 Ark. 169, 126 S.W. 843; Morris v. State, 103 Ark. 352, 147 S.W. 74; Striplin v. State, 100 Ark. 132, 139 S.W. 1128.

II. Counsel for appellant next contend that, inasmuch as the indictment alleged that the appellant was a single and unmarried man, and that the prosecutrix, Rosa Jackson, was a single and unmarried female, and that inasmuch as the statute is leveled at the crime of obtaining carnal knowledge of a female by virtue of any feigned expressed promise of marriage, that to sustain the charge it was necessary for the State to prove that the man and the woman involved were single persons, and that there was no such proof.

The statute provides: "Any person who shall be convicted of obtaining carnal knowledge of any female by virtue of any feigned or pretended marriage, or of any false or feigned expressed promise of marriage, shall, on conviction," etc. Kirby's Digest, § 2043. "The statute," says this court in Davis v. State, 95 Ark. 555, 557, 129 S.W. 530, "is leveled at the seducer, whether he be a married man or a single man. It was not necessary, therefore, that the indictment should allege that the defendant was a single and unmarried man." Such an allegation is in no manner descriptive of the offense, and it therefore may be treated as surplusage, and proof that the alleged seducer was unmarried was not essential to conviction.

Conceding, without deciding, that it was essential for the State to prove that the female was unmarried, there is ample testimony in the record to warrant the conclusion that the prosecutrix was unmarried. The prosecutrix, at the time of the alleged intercourse, was but a little over sixteen years of age, and she is referred to by appellant's counsel, throughout her examination as a witness, as "Miss Rosa." The testimony of the prosecutrix tends to show that her intercourse with the appellant was the first act of the kind. The prosecutrix speaks of the appellant's promise to marry her, and her whole testimony is predicated upon the idea that she was not a married person.

The mother of the prosecutrix testified concerning the association of appellant with the prosecutrix for nearly a year, visiting her every Sunday. One of the witnesses spoke of the young people associating together, including "Miss Rosa." And there are references in the testimony to appellant's promising to and obtaining a license to marry the prosecutrix.

From all the circumstances the jury were warranted in finding that the prosecutrix was an unmarried person. Whether or not she was married could be proved by circumstances. Nichols v. State, 92 Ark. 421, 122 S.W. 1003; Davis v. State, 95 Ark. 555, 129 S.W. 530.

III. The prosecutrix testified that she met Will Smedley in January, 1916, and began having intercourse with him about May, 1916. He promised that if she would have intercourse with him that he would marry her. She did not at first consent, but the next time he visited her, about two weeks after the promise, she yielded and the act of intercourse took place.

On a charge of seduction, corroboration of the female is required both as to the promise of marriage and the act of sexual intercourse. Kirby's Digest, § 2043; Cook v. State, 102 Ark. 363, 144 S.W. 221; Nichols v. State, 92 Ark. 421, 122 S.W. 1003, and cases cited.

Appellant contends that there was no corroboration. The appellant, when asked how many times he had intercourse with Rosa Jackson in 1916, replied: "I never tried to keep up with them." This was sufficient corroboration of the act of intercourse. Willhite v. State, 84 Ark. 67, 104 S.W. 531. Appellant testified that he began going with the prosecutrix in February, 1916, and had kept her company at different times throughout the year. The mother of the prosecutrix testified that appellant kept the company of the prosecutrix every Sunday from February 5 until December 28, 1916. One of the prosecutrix's relatives testified to the same effect, and also that he had not seen any other boys keeping her company during that time. The prosecutrix's mother also testified that when she told appellant that he had ruined her daughter through a contract of marriage that appellant replied:...