Willis v. State
| Decision Date | 01 December 1947 |
| Docket Number | 4470 |
| Citation | 206 S.W.2d 3,212 Ark. 403 |
| Parties | Willis v. State |
| Court | Arkansas Supreme Court |
Appeal from Saline Circuit Court; Thomas E. Toler, Judge.
Affirmed.
N A. McDaniel, for appellant.
Guy E. Williams, Attorney General, and Oscar E Ellis, Assistant Attorney General, for appellee.
Appellant was charged by information filed by the prosecuting attorney with the crimes of rape and incest, alleged to have been committed by having sexual intercourse with his 15-year-old daughter forcibly and against her will. He was convicted of rape and his punishment fixed by the jury at life imprisonment in the penitentiary.
The first three assignments of error alleged in the motion for a new trial challenge the sufficiency of the evidence to support the verdict. The State's principal reliance for conviction is based on the testimony of the prosecuting witness, the daughter of appellant, who testified that her mother died five years prior to the trial, which was held on May 26th and 27th, 1947. She testified positively that appellant, on several occasions prior to Christmas in 1946, forced her to leave her bed, where she slept with two sisters, and go to his bedroom where he had sexual intercourse with her forcibly and against her will; that he threatened to kill her if she exposed him; and that she was expecting the birth of a child in July and appellant was the father of the child. She also testified that she wanted to go to a doctor, but appellant would not permit her to do so unless he went along; that she did not know what was wrong with her until appellant took her to the doctor in February, 1947. Appellant gave her some quinine capsules to take prior to the visit to the doctor. There was some corroboration of the testimony of the prosecuting witness by her 13-year-old sister and 19-year-old brother.
On cross-examination the prosecuting witness testified that she went to the picture show on two occasions with Charlie Cross, but that they were accompanied each time by her sisters and other relatives, who were named by the witness. Each occasion occurred more than a year prior to the trial and she had not since these occasions, been with the Cross boy. She denied telling several parties named by the appellant that she did not know who was the father of her expected child, and none of the parties named were called as witnesses to impeach this testimony. She also denied that she conspired with an older brother, who had returned from military service, to "get rid" of her father.
Appellant denied the charges of misconduct made by his daughter and testified that she told him she had been to a doctor twice prior to the examination in February, 1947, and that the doctor told her there was nothing wrong with her. The prosecuting witness threatened to get even with him when he punished her for going out with boys at night. He also testified that his oldest son objected because he refused to permit the prosecuting witness to attend parties and dances.
The guilt or innocence of appellant of the charge of rape was a question for the jury to determine under conflicting testimony. Viewed in the light most favorable to the state, the evidence is sufficient to sustain the verdict.
The principal contention for reversal of the judgment is that the trial court abused its discretion in refusing to grant appellant's motion for a continuance of the case. Information was filed against appellant on February 22, 1947, and the case set for trial for April 14, 1947. At appellant's request a subpoena was issued for several witnesses including one Opal Croslin. The sheriff was unable to obtain service on this witness and filed the subpoena with the clerk on April 12, 1947, after indicating on the face of the writ that Opal Croslin was "out of town." The return on the back of the subpoena showing service on "the within named" was not signed by the sheriff. When the case was called for trial on April 14, 1947, Opal Croslin was not present. The case was continued to May 26, 1947, on oral motion of appellant and all witnesses present were ordered by the court to appear on that date. Appellant made no inquiry about service of the subpoena on Opal Croslin and her absence was not called to the attention of the court when other witnesses were recognized to appear on May 26th.
When the case was called for trial on May 26, 1947, appellant filed a written motion for continuance because of the absence of Opal Croslin. The motion alleged that, if said witness were present, she would testify that shortly before appellant was arrested she talked to the prosecuting witness who told her: "that if something didn't show up this month that she would have to marry Charlie Cross, that her Daddy was catching on; that he had been suspicious for some time and had been threatening to have her examined and that he is insisting on it so strongly that I am going to have to go and be examined."
While the motion was being considered by the court on May 26, 1947, another subpoena was issued for Opal Croslin and the sheriff of Saline county was informed by officers in White county that the witness was at Bald Knob, Arkansas. The White county officers were directed to bring the witness to Jacksonville in Pulaski county, where they would be met by the Saline county sheriff and the witness returned to Benton to testify in the case. At this point the court ordered the trial to proceed. A jury was selected and opening statements of counsel for the state and defense were made.
When court was resumed on May 27, appellant renewed the motion and further testimony was heard. The sheriff testified that when he arrived at Jacksonville to return the witness, he learned that she had left Bald Knob for Newport in Jackson county before she could be apprehended by the White county officers. Officers at Newport had been unable to locate the witness.
Counsel for appellant testified that when the case was first called for trial on April 14, he looked at the subpoena filed by the sheriff, but assumed that Opal Croslin was present, having been informed by her brother and others that all witnesses were present. Relying on this information, and the notation on the back of the subpoena, he thought sh...
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Mitchell v. Stephens
...999 (1935); Gann v. State, 200 Ark. 947, 141 S.W.2d 834 (1940); Fields v. State, 203 Ark. 1046, 159 S.W.2d 745 (1942); Willis v. State, 212 Ark. 403, 206 S.W.2d 3 (1947); Batchelor v. State, 217 Ark. 340, 230 S.W.2d 23 (1950); Pemberton v. State, 221 Ark. 19, 251 S.W.2d 825 (1952); McDonald......
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Baker v. State
... ... (a) ... Mrs. Baker was arrested on April 18th, and was arraigned on ... May 2nd, so we cannot say that the trial court abused its ... discretion in overruling the motion for [215 Ark. 856] ... continuance filed on May 4th, which was the date of the ... trial. See Willis v. State, 212 Ark. 403, ... 206 S.W.2d 3 ... (b) At ... the time of the arrest, there was no endorsement on the ... information giving the names of the witnesses for the State; ... and defendant, in claiming such omission to be fatal, cites ... § 43-1004, Ark. Stats. of ... ...
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Baker v. State
...abused its discretion in overruling the motion for continuance filed on May 4th, which was the date of the trial. See Willis v. State, 212 Ark. 403, 206 S.W.2d 3. (b) At the time of the arrest, there was no endorsement on the information giving the names of the witnesses for the State; and ......