Willis v. State, 4715

• Decision Date: 10 November 1952
• Docket Number: No. 4715,4715
• Citation: 221 Ark. 162,252 S.W.2d 618
• Parties: WILLIS v. STATE.
• Court: Arkansas Supreme Court

Page 618

252 S.W.2d 618

221 Ark. 162

WILLIS v. STATE.

No. 4715.

Supreme Court of Arkansas.

Nov. 10, 1952.

N. A. McDaniel and O. Wendell Hall, Jr., Benton, for appellant.

Ike Murry, Atty. Gen., Dowell Anders, Asst. Atty. Gen., for appellee.

McFADDIN, Justice.

On March 19, 1952, Curtis Willis was indicted for the crime of rape ¹ alleged to have been committed on his daughter, Billie Jean Willis. He was tried on that indictment and convicted of carnal abuse ² and brings this appeal presenting the points now to be discussed.

I. Sufficiency Of The Evidence. Billie Jean Willis testified that she was 15 years of age on January 4, 1952; that her father, the appellant, raped her on September 3, 1946; and that he continued to compel her to have sexual intercourse with him at frequent intervals thereafter, until about two weeks before the returning of the indictment. The prosecuting witness testified to the many acts of carnal abuse within the statutory period, and her testimony made a jury case independent of corroboration, even though she was in fact corroborated. Hodges v. State, 210 Ark. 672, 197 S.W.2d 52; Tugg v. State, 206 Ark. 161, 174 S.W.2d 374; Waterman v. State, 202 Ark. 934, 154 S.W.2d 813. One indicted for rape can be convicted for carnal abuse. Warford & Clift v. State, 214 Ark. 423, 216 S.W.2d 781, 8 A.L.R.2d 996. We conclude that the evidence was sufficient to take the case to the jury and to support the jury's verdict.

II. Bill Of Particulars. The indictment charged the rape to have been committed on September 3, 1946. The appellant moved the trial court to require the State to furnish him--in advance of the impaneling of the jury--with information as to any other and subsequent dates in which the State would claim there had been sexual intercourse by the appellant with his daughter. The appellant assigns as error the refusal by the trial court to require the State to furnish such information.

Since rape is a capital offense, Sec. 41-3403, Ark.Stats., there could be no valid claim of limitations by appellant against a rape committed 6 years before the indictment. See Sec. 43-1601, Ark.Stats. Thus, insofar as the offense of rape was concerned, Sec. 43-1015, Ark.Stats. applies and that section says:

'The statement, in the indictment, as to the time at which the offense was committed, is not material, further than as a statement that it was committed before the time of finding the indictment, except where the time is a material ingredient in the offense.'

When the accused presented his motion for detailed information, which amounted to a motion for a bill of particulars, he was being tried on an indictment which charged rape and it was immaterial whether there might be proof of any sexual intercourse after the one charged in the indictment, which was September 3, 1946. The statute on bill of particulars is Sec. 43-804, Ark.Stats., and says:

'The Bill of Particulars now required by law in criminal cases shall state the act relied upon by the State in sufficient details as formerly required by an indictment; that is, with sufficient certainty to apprise the defendant of the specific crime with which [he is] charged, in order to enable him to prepare his defense. * * *'

The indictment in this case definitely charged the appellant with rape, and made unnecessary any bill of particulars as to the rape. Here is the wording of the indictment:

'The Grand Jury of Saline County, in the name and by the authority of the State of Arkansas, accuse Curtis Willis of the crime of Rape committed as follows, to-wit: The said Curtis Willis in the County and State aforesaid, on the 3rd day of September, A.C., 1946 did unlawfully in and upon one Billie Jean Willis, a female person under the age of sixteen years, forcibly, violently and feloniously rape and assault her, the said Billie Jean Willis, then and there violently, forcibly and against her will and consent, did ravish and carnally know, and against the peace and dignity of the State of Arkansas.'

If the indictment had only charged carnal abuse, a date within the statutory period might have been material, because, by Sec. 43-1602, the limitation period for a felony less than capital is three years. Even in this rape case, it would not have been improper for the Court to have required the Prosecuting Attorney to inform the defendant of the dates of the acts of intercourse within the three-year period, but in the state of the record at the time the motion was made and acted on by the trial court, we see no error in the ruling of the trial court in refusing the motion for bill of particulars.

In the Court's Instruction No. 4 to the jury, the Court said:

'The alleged offense of carnal abuse must have occurred within three years before the filing of the indictment on March 19, 1952.'

Thus the defendant's rights were protected. In Venable v. State, 177 Ark. 91, 5 S.W.2d 716, we held that a statement as to the time of the commission of a carnal abuse is not material except as a statement that it was committed before the time of the finding of the indictment; and in Oakes v. State, 135 Ark. 221, 205 S.W. 305, 306, the defendant was charged with carnal abuse committed 'on the ___ day of _____, 191 _' and we sustained that indictment, saying:

'In a criminal prosecution, the state must prove that the offense was committed within the period of the statute bar, * * *.'

The defendant knew that under the indictment, he could be convicted of carnal abuse and also knew that any act of sexual intercourse by him with the prosecuting witness, within three years...