Smith v. State

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Smith v. State, 119 S.W. 655, 90 Ark. 435 (Ark. 1909)
• Decision Date: 17 May 1909
• Parties: SMITH v. STATE

119 S.W. 655

90 Ark. 435

SMITH v. STATE

Supreme Court of Arkansas

May 17, 1909

Appeal from Jackson Circuit Court; Charles Coffin, Judge: affirmed.

Judgment affirmed.

Stuckey & Stuckey, for appellant.

1. The venue is not proved. The brother's testimony was hearsay merely and incompetent. 8 Ark. 406; Id. 455; 6 Wall. (U.S.) 396.

2. No crime was committed unless the prosecuting witness was under 16 years of age. Kirby's Dig. § 2008. Of this there is no sufficient proof.

3. The verdict should have been set aside. The after discovered evidence that the witness had given birth to a child would have been admissible both as affecting her credit and as tending to prove that she was over 16 years of age.

Hal. L Norwood, Attorney General, and C. A. Cunningham, Assistant for appellee.

1. The material part of the brother's testimony was not that the prosecuting witness showed him the house, but that it was in Jackson County. It was correctly admitted. 4 Wigmore on Ev § 1791; 86 Ark. 36. The trial court's reason assigned for admitting testimony cannot be called into question. 2 Ark. 575.

2. The fact that the girl gave birth to a child, if a fact, would not affect appellant's case, if she was under 16 years of age at the time the crime was committed, and that question is settled by the verdict of the jury. It would be merely cumulative as tending to show she was over 16 years of age and affecting her credibility, and no ground for new trial. 72 Ark. 404.

OPINION

MCCULLOCH, C. J.

The grand jury of Jackson County returned an indictment against the defendant, charging him with having carnally known Ola Taylor, a girl under the age of 16 years, in that county. He was tried before a jury and convicted, and appeals to this court.

The prosecuting witness testified that she met the defendant and a man named Starnes in Newport on the night of July 18, 1908, and that they conducted her to a certain house in that city which is shown by other witnesses to be a bawdy house. An officer arrested them at that place, but afterwards released them on deposit of a sum of money in lieu of bail. She testified that the defendant and Starnes then carried her across the river in a boat, and thence to a certain unoccupied house, where she said the defendant had sexual intercourse with her. There was evidence sufficient to justify a finding that at that time she was under the age of 16 years.

She stated further that subsequently she carried her brother, John Taylor, to the house and showed it to him. John Taylor testified that the house in question was situated in Jackson County. This is the only testimony tending to prove the venue; and counsel for defendant insist that the testimony of John Taylor was inadmissible. Taylor testified that his sister showed him the house, and that he knew it to be in Jackson County. It is argued that this is hearsay testimony, and that it should not have been admitted.

It was competent to prove by the prosecuting witness that she pointed out the house to her brother, and then to establish the venue by proving by the brother the location of the house shown to him. The testimony of the two witnesses in this way proved the venue. It was competent to identify the house by the testimony of the prosecuting witness, and then to prove its location by the brother, John Taylor. This was not hearsay testimony. Arkansas & La. Ry. Co. v. Sanders, 81 Ark. 604, 99 S.W. 1109. Of course, the witness John Taylor should not have been permitted to prove the venue by testifying that his sister told him it was the place; and we do not understand that the court meant this by allowing him to testify that his sister had pointed it out to him. He made this statement merely as a means of identifying the house which his sister had shown him. Proof of the fact that it was the house in which the crime is alleged to have been committed was dependent upon the testimony of the prosecuting witness herself, and it was competent for that purpose.

Another one of the grounds assigned for new trial is that of...