Smith v. State
| Decision Date | 17 October 1921 |
| Docket Number | 166 |
| Citation | 233 S.W. 1081,150 Ark. 193 |
| Parties | SMITH v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Benton Circuit Court; W. A. Dickson, Judge; reversed.
Judgment reversed and remanded.
John Mays, for appellant.
J. S Utley, Attorney General, Elbert Godwin and W. T. Hammock, for appellee.
The court did not commit any error in refusing to instruct the jury on the lower offenses embraced in the indictment. 49 Ark. 543; 36 Ark. 242; 54 Ark. 336; 13 Ark. 317; 93 Ark. 20; 99 Ark. 648; 120 Ark. 179.
There was no error in permitting the testimony of Mrs. Niel Phillips to be read to the jury. 58 Ark. 353; 90 Ark. 514; 83 Ark. 272; 16 S.W. 577.
There was no error in permitting the prosecuting witness to introduce testimony showing her good character and reputation for chastity. 22 R. C. L. Sec. 42, p. 1208, 1209.
Huel Smith prosecutes this appeal to reverse a judgment of conviction against him for the crime of assault with intent to rape. Smith was indicted for the crime of assault with intent to rape, and was convicted of the crime, his punishment being fixed by the jury at a term of three years in the State penitentiary.
The first assignment of error is that the judgment should be reversed because the court refused to instruct the jury on the lower offenses embraced in the indictment.
The defendant was indicted for the crime of assault with intent to commit a rape, and the court fully and fairly instructed the jury on that phase of the case. The court, however refused to instruct the jury on the crime of simple assault.
The prosecuting witness was between eighteen and nineteen years of age at the time the offense is charged to have been committed. According to her testimony, she was well acquainted with the defendant, and went buggy riding with him on the night in question. The defendant first put his arms around her against her will and rode in that position for some distance. She would scream for help when they passed houses, but failed to attract the attention of any one. Finally the defendant stopped the horse, wrapped the buggy lines around the whip, and told her that he intended to have intercourse with her. She resisted him with all her power. He took both of her hands in one of his, pressed her down on the buggy seat, struck her on the face and neck and forced her to yield to his embraces. She resisted him in every manner possible. The defendant then proceeded to drive on, and presently she dropped her handkerchief out of the buggy. She asked the defendant to get out of the buggy to get the handkerchief, and, when he did so, the prosecuting witness whipped up the horse and left him. The horse in turning a corner overturned the buggy. The prosecuting witness then scrambled out and went for assistance to a nearby house. In a short time the defendant came there and asked if she wanted to go home with him. She refused to go and telephoned for her relatives to come or send for her. She reported the fact of the assault as soon as she reached the house.
The defendant admitted that he had intercourse with the prosecuting witness on the night in question, but claimed that it was with her consent. He described in detail their conversation during the ride, and said that there was no resistance whatever on the part of the prosecuting witness.
Under this state of the record, we think the court erred in refusing to give the instruction. This is not a case where the undisputed evidence shows that the defendant was guilty of the crime of assault with intent to rape or nothing, and the case does not come within the rule announced in Rogers v. State, 136 Ark. 161, 206 S.W. 152.
The jury were the judges of the credibility of the witnesses and the weight to be given to their testimony. According to the testimony of the prosecuting witness, the defendant first put his arms around her and held them there while they rode for some distance, although she screamed for help whenever they passed a house. The defendant did not deny putting his arms around the prosecuting witness, but said that she consented thereto. This action of the defendant, as testified to by the prosecuting witness, constituted a simple assault and would warrant the jury in finding him guilty of that offense if it should not believe the subsequent...
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