Threet v. State

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Threet v. State, 161 S.W. 139, 110 Ark. 152 (Ark. 1913)
• Decision Date: 10 November 1913
• Parties: THREET v. STATE

161 S.W. 139

110 Ark. 152

THREET v. STATE

Supreme Court of Arkansas

November 10, 1913

Appeal from Faulkner Circuit Court; Eugene Lankford, Judge reversed.

Judgment reversed.

Appellant pro se.

1. The indictment should have been quashed on defendant's motion. Kirby's Dig., § 2220; 12 Ark. 636; 69 Ark 190.

It should have been dismissed because of misjoinder of offenses. Kirby's Dig., §§ 2230, 2231; 32 Ark. 203; 33 Ark. 177; 36 Ark. 55.

2. The court erred, both in the setting of the case for trial in the absence of the defendant, and in permitting his motion for change of venue to be withdrawn at a time when he was not present. Kirby's Dig., § 2339; Const. Ark., art. 2, § 10; 5 Ark. 431; 10 Ark. 325; 58 Ark. 239; 24 Ark. 620; 146 U.S. 374; 28 Am. Dec. 629; 110 U.S. 524; 85 Wis. 400; 99 Va. 816; 44 Ark. 331; 93 Miss. 774; Bishop's New Crim. Proc., § 273.

3. The court erred in not giving instruction No. 2 in the form requested by appellant. The modification thereof by adding the words, "consistent with her safety," presupposes that there was impending danger, a state of facts not proven. There was no evidence whatever of any threats having been made, until after the intercourse had taken place. As to the modification the instruction was abstract. 63 Ark. 177; 69 Ark. 130; 65 Ark. 222; 71 Ark. 351; 76 Ark. 348; 62 Ark. 559; 73 Ark. 407; 102 Ala. 130; 33 Cyc. 1502.

4. The court erred in refusing to instruct the jury, at appellant's request, in effect, that they might consider the failure of the prosecuting witness to make known to her parents or friends, or to the officers of the law, the alleged intercourse, along with all other facts and circumstances in proof, in determining whether or not the intercourse was against her will. 104 N.Y. 481; 10 N.E. 880; 33 Tex.Crim. 472; 26 S.W.987; 107 Mo. 147; 17 S.W.666; 92 Ark. 73; 66 Ark. 523; 23 Am. & Eng. Enc. of L. (2 ed.), 862, 863; Id. 860, 861; 135 Cal. 133; 91 Mo. 410; 42 Mich. 262; Wigmore on Ev., §§ 199, 200; 2 Bishop's Crim. Proc., 965; Wharton, Crim. Law, § 568.

5. Under the statute, the failure of a person charged with a crime to testify, creates no presumption against him, and it was reversible error to refuse to so charge the jury. Kirby's Dig., § 3038; 144 Mich. 17; 89 Ark. 401, 402; 9 Am. & Eng. Ann. Cases 648; 34 Mont. 12; 76 O. St. 537; 96 Ia. 426; 65 N.W. 387; 26 Tex.App. 465; 13 S.W.750.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The motion to quash did not allege that any members of the grand jury were prosecutors of, or complaining against, appellant, or summoned or bound over in recognizance as witnesses in the case. It was properly overruled. Kirby's Dig., § 2220; 79 Ark. 127-130.

The court also correctly overruled the motion to dismiss for misjoinder of offenses. The female was under sixteen years of age. 76 Ark. 267-269.

2. No prejudice resulted to appellant in setting the case in his absence. The record affirmatively shows a withdrawal of the motion for change of venue by appellant's attorney, and that thereupon the cause was set for trial on the third day thereafter. The record will control. 108 Ark. 191; Id. 208; 46 Ark. 41; 49 Ark. 176; 45 Ark. 165.

3. No error in the instructions. As to the modification of appellant's instruction No. 2, there was sufficient evidence in the record to justify the addition of the words, "consistent with her safety." There was no prejudice resulting from the refusal to give instruction No. 8, since the record shows that the prosecuting attorney was not permitted to refer to appellant's failure to testify.

OPINION

SMITH, J.

The appellant was indicted for the crime of rape, convicted and sentenced to death, and has appealed from that judgment. The allegations of the indictment are as follows:

"State of Arkansas, v.

"Robert Threet.

"Faulkner County Circuit Court.

"The grand jury of Faulkner County, in the name and by the authority of the State of Arkansas, accuse Robert Threet of the crime of rape, committed as follows:

"The said Robert Threet, in the county and State aforesaid, on the 1st day of March, A. D. 1913, in and upon one Gertie Hollingshead, a female under the age of sixteen years, forcibly, violently and feloniously, did rape and assault her, the said Gertie Hollingshead, then and there violently, forcibly and against her will, feloniously did ravish and carnally know.

"Against the peace and dignity of the State of Arkansas.

"J. B. Read, Prosecuting Attorney."

Appellant moved to quash the indictment because, under its allegations, he was charged with both the crime of rape and carnal abuse. The indictment sufficiently charges the crime of rape, and where it is alleged the female is under the age of sixteen years, the crime of carnal abuse is included in the charge. A similar indictment was approved in the case of Henson v. State, 76 Ark. 267, 88 S.W. 965, where it was said: "Carnal knowledge of a female is necessary to constitute rape; and when the female is under sixteen years of age, carnal abuse is included in that offense."

Appellant also moved to quash the indictment because certain members of the grand jury were specially interested in the prosecution against him, and at the time of his indictment, he was confined in the county jail of Faulkner County, and afforded no opportunity to challenge such persons from serving on the grand jury in the investigation of his case. No attempt was made to prove this allegation, and the mere fact that appellant was not afforded the opportunity to challenge grand jurors is not ground for reversal, when it does not appear that he was denied the benefit of some right secured by section 2220, Kirby's Digest, which gives every person held to answer a criminal charge the right to object to the competency of any one summoned to serve as a grand juror on the ground that, "he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution, and has been summoned or bound in a recognizance as such; and, if such objection be established, the person so challenged shall be set aside." Sullins v. State, 79 Ark. 127, 95 S.W. 159; Eastling v. State, 69 Ark. 189, 62 S.W. 584.

A reversal of the case is also sought because of the failure of the court to grant appellant a change of venue, and because, also, of the fact that the court set the cause for trial in the defendant's absence. An examination of the record discloses the following facts. Appellant filed a petition for a change of venue in proper form, alleging that he could not obtain a fair trial in Faulkner County because of the prejudice of the inhabitants of that county against him. This petition was supported by the affidavits of George Shaw and George W. Clark, appellant's attorneys, and two other citizens of that county. These affiants all testified in court, and after setting out their evidence, the record contains the following recital:

"About thirty minutes after the above testimony was heard, George Shaw, one of the attorneys for the defendant, appeared before the court and stated that he had talked with the mother of the defendant, who had talked with some of her white friends, and she was now of the opinion that the defendant would get better treatment in Faulkner County than anywhere else, and he (Shaw) stated they wished to withdraw the petition for a change of venue, which was granted."

The trial judge thereupon made a notation on his docket, showing the withdrawal of this motion, and at the same time ordered the case set down for trial on a certain day. After the trial, which resulted in appellant's conviction, he filed an affidavit in which he stated that his petition for a change of venue was withdrawn by one of his attorneys in his absence, and in the absence of the other attorney, and that he was not aware of this action until after the trial. The attorney who had withdrawn the petition, also filed an affidavit in which he stated that he had acted without the consent of defendant, or the other attorney, and in their absence, and this action was taken because of information he had received that appellant would be lynched if he was removed from the Faulkner County jail. It is not contended that the court was advised of this want of authority, nor of the motive which prompted counsel's action. But upon the day set for trial, all parties announced ready, and the trial proceeded. The court was not asked to make a ruling upon the petition for a change of venue, and no request was made for additional time to prepare for trial. Under the circumstances, the failure of appellant or his counsel who was not a party to the withdrawal of this petition, to ask a ruling on the petition for a change of venue must be held equivalent to a withdrawal of the petition. And, notwithstanding the cause should not have been set for trial in appellant's absence, no prejudice resulted from that fact, as additional time was not asked, and a trial might be had without any setting of a case. We conclude, therefore, that no error was committed in the court's failure to act upon the petition for a change of venue, nor in setting the case for trial in defendant's absence.

Appellant was a negro man, and Gertie Hollingshead, the girl alleged to have been assaulted, was only fifteen years old, and there appears to have been no question as to the fact that appellant had had sexual intercourse with her. But while the girl testified that she did not consent, but that she was put in fear and offered all the resistance she dared to offer she also testified to facts which tended to discredit that statement. The story told by the girl is, that the assault occurred at the home of a negress named Louvidia Sims, in...