Williford v. State, 5706

• Decision Date: 24 April 1972
• Docket Number: No. 5706,5706
• Citation: 479 S.W.2d 244,252 Ark. 397
• Parties: Carthel Dee WILLIFORD, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 244

479 S.W.2d 244

252 Ark. 397

Carthel Dee WILLIFORD, Appellant, v. STATE of Arkansas, Appellee.

No. 5706.

Supreme Court of Arkansas.

April 24, 1972.

Carpenter, Finch & McArthur, Little Rock, for appellant.

Ray Thornton, Atty. Gen., by John D. Bridgforth, Asst. Atty. Gen., Little Rock, for appellee.

BYRD, Justice.

Appellant Carthel Dee Williford was found guilty of incest and sentenced to 10 years in the Penitentiary. For reversal he contends the trial court erred:

'1. in overruling his demurrer to the information;

2. in allowing appellant to be interrogated about an alleged intercourse with another person;

3. in refusing a continuance to secure a rebuttal witness; and

4. in allowing the prosecutrix to testify to previous acts of intercourse.'

I. The information here charged appellant with incest committed as follows:

'The said defendant in Pulaski County, Arkansas, on or about the 24th day of July, 1970, did unlawfully and feloniously engage in sexual intercourse with his fourteen year old daughter, Rhonda Williford, against the peace and dignity of the State of Arkansas.'

The statute, Ark.Stat.Ann. § 41--811 (Repl.1964), under which appellant was charged provided:

'Persons marrying, who are within the degrees of consanguinity within which marriages are declared by law to be incestuous, or void absolutely, or who shall commit adultery or fornication with each other, shall be deemed guilty of incest.'

To sustain his demurrer appellant points out that the information is totally lacking in allegations of his marital status and fails to allege either adultery or fornication. In Martin v. State, 58 Ark. 3, 22 S.W. 840 (1893), a similar demurrer was held good but in so doing, this court recognized that the ruling was somewhat technical. Other courts hold to the contrary and indicate that the rule in Martin v. State, is a minority view. See Wood v. State, 72 Okl.Cr. 347, 116 P.2d 734 (1941). The technical views set forth in Martin v. State, supra, have been overruled by Init. Meas. 1936, No. 3, § 22, now codified as Ark.Stat.Ann. § 43--1006 (Repl. 1964). In Underwood v. State, 205 Ark. 864, 171 S.W.2d 304 (1943), it was pointed out that this section was adopted for the purpose of simplifying procedure in criminal cases and eliminating superfluous technical defenses. It follows that the trial court properly overruled appellant's demurrer.

II. The trial court did not err in allowing appellant to be asked on cross-examination if he was guilty of also molesting his step-daughter Janet Williford and in allowing the State to inquire if he had joined in a wife swapping incident. See Black v. State, 250 Ark. 604, 466 S.W.2d 463 (1971). While in Adams v. State, 229 Ark. 777, 318 S.W.2d 599 (1958), we held similar questions to be improper and highly prejudicial when they were asked without any basis whatever, it cannot be said that the prosecution here had no basis for asking the question relative to Janet Williford and the appellant made no objection to the wife swapping question.

III. Joe Poe, a State witness, testified that he had known appellant for some time and that in August of 1970, the prosecutrix and her two sisters talked to him about...