Underdown v. State
| Decision Date | 30 June 1952 |
| Docket Number | No. 4692,4692 |
| Citation | 220 Ark. 834,250 S.W.2d 131 |
| Parties | UNDERDOWN v. STATE. |
| Court | Arkansas Supreme Court |
Len Jones and Moore & Baker, Harrison, for appellant.
Ike Murry, Atty. Gen., Wm. M. Moorhead, Asst. Atty. Gen., for appellee.
The defendant was charged by information with the crime of rape. The jury found him guilty of assault with intent to rape and fixed his punishment at three years in the penitentiary.
The testimony on behalf of the State tended to show that the prosecuting witness attended a community Christmas program at Plumlee Schoolhouse with her parents and two younger sisters on the evening of December 23, 1951. When the prosecuting witness left the building with a girl companion, defendant persuaded her to enter a car parked nearby. The two were later joined by defendant's companion, Billy Joe Johnson, whose father owned the car.
Later Johnson drove with the defendant and the prosecuting witness to a secluded place off the highway a few miles from the schoolhouse. Johnson attempted to have intercourse with the prosecuting witness and being unable to overcome her resistance, enlisted the assistance of the defendant who held the prosecuting witness by the ankles while Johnson proceeded with the criminal assault. After penetration but before completion of the sexual act, Johnson desisted when the prosecuting witness severely bit his nose. When the prosecuting witness started to run away, the two young men agreed to take her back. They let her out a short distance from the schoolhouse.
The torn and bloody clothing worn by the prosecuting witness on the night in question was introduced. Johnson virtually admitted the assault but he and the defendant denied that the latter rendered the assistance as related by the prosecuting witness. The jury chose to believe the prosecuting witness and it was not necessary that her testimony be corroborated. Palmer v. State, 213 Ark. 956, 214 S.W.2d 372. When the testimony is considered in the light most favorable to the State, it is sufficient to sustain the verdict and judgment. Warford & Clift v. State, 214 Ark. 423, 216 S.W.2d 781, 8 A.L.R.2d 996.
Defendant earnestly insists that the trial court erred in overruling a demurrer to the information. Although there is no demurrer in the transcript and nothing to indicate the ground upon which it was based, the judgment recites the overruling of a demurrer filed by the defendant. It is now argued that the allegations of the information are insufficient to constitute a public offense in that there is no allegation that the assault was committed forcibly and against the will of the prosecutrix. The information first charged the defendant with the crime of rape stating that, at the time and place in question, he did unlawfully and feloniously assist Billy Joe Johnson to have carnal knowledge of the prosecuting witness. The information further alleged: 'The said assistance being that the said defendant did help the said Billy Joe Johnson to carry the said [prosecuting witness] to a secluded spot against her will and did hold the said [prosecuting witness'] legs apart and still while the said Billy Joe Johnson did have knowledge of the said [prosecuting witness] * * *.'
The gist of the defendant's contention is that although the information charges that the prosecuting witness was taken to a secluded spot against her will and that defendant unlawfully and feloniously assisted another to have carnal knowledge of her, it does not allege that the assault was committed forcibly and against her will. In State v. Peyton, 93 Ark. 406, 125 S.W. 416, an indictment for rape, which charged that the defendant did "feloniously and forcibly ravish and carnally know" the prosecutrix, was held sufficient on demurrer although it omitted an express allegation that the act was committed 'against the will' of the female. The court said:
The court also referred to the case of Beard v. State, 79 Ark. 293, 95 S.W. 995, 97 S.W. 667, in which it was said that an allegation of an 'unlawful assault' necessarily implied an allegation that the act was done against the will of the assaulted female. The language of an indictment or information should charge an offense with reasonable certainty so as to put the accused on notice of the nature of the charge he is called upon to meet. Davis v. State, 131 Ark. 542, 199 S.W. 902. Ark.Stats. § 43-1012 provides: 'No indictment is insufficient, nor can the trial,...
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...or impedes a criminal defendant in making a defense, a motion to quash under Section 16-85-407 may be proper. Underdown v. State, 220 Ark. 834, 250 S.W.2d 131 (1952). There is no prejudice or surprise in this case. Hoover admitted at trial that he was not surprised by the amendment. In any ......
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