Woodard v. State

• Decision Date: 12 April 1920
• Docket Number: 337
• Citation: 226 S.W. 124,143 Ark. 404
• Parties: WOODARD v. STATE
• Court: Arkansas Supreme Court

226 S.W. 124

143 Ark. 404

WOODARD v. STATE

No. 337

Supreme Court of Arkansas

April 12, 1920

Appeal from Johnson Circuit Court; A. B. Priddy, Judge; affirmed.

Judgment affirmed. Judgment reversed.

W. E Atkinson and G. O. Patterson, for appellant.

1. It was error to refuse the peremptory instruction asked by defendant. There was no testimony except the prosecutrix's and she was not corroborated either as to the intercourse or promise of marriage. 130 Ark. 149; 11 Enc of Ev. 699; 67 Ind. 567-573; 40 Ark. 485; 77 Id 472; 72 Id. 23; 84 Id. 67; 86 Id. 30; 92 Id. 424; 77 Id. 16; 126 Id. 98; Smedley v. State, 130 Ark. 149; 102 Pa.St. 208; 104 Mo. 644; 35 Cyc. 1361, note 76; 64 Ind. 573; 90 Ala. 641; 93 Va. 815.

2. There was absolutely no corroboration of sexual intercourse and improper evidence of character was admitted. 91 Ark. 559; 120 Id. 458.

3. The 8th instruction was misleading and the 11th and 14th prejudicial and erroneous. 91 Ark. 555-560; 16 Cyc. 1280-1; 88 Ala. 116.

4. It was error to refuse the second request of defendant. 111 Iowa 69; 132 Id. 196; 78 Id. 123; 110 N.Y. 188.

5. It was error to refuse defendant's third and fifth requests, also the seventh. Cases supra.

6. Improper testimony was admitted on the part of the State, and illegal evidence as to character. Supra.

1. This is the second appeal in this case. The first was reversed, The testimony is substantially the same, but the corroboration is sufficient. The law is settled. 215 S.W. 708; 119 Ark. 436; 40 Ark. 482. The corroboration is sufficient. 77 Ark. 472; 92 Id. 421; 86 Id. 30; 4 Minn. 325.

2. There was no error in the court's action in admitting testimony as to character of appellant. 3 Enc. of Ev., p. 49.

3. There was no error in the instructions. 129 Ark. 180; 110 Id. 402. On the whole case the verdict is right.

OPINION

SMITH, J.

This appeal comes from a second judgment of conviction sentencing appellant to the penitentiary for the crime of having obtained carnal knowledge of one Bessie Miller by virtue of a false express promise of marriage.

The former judgment was reversed because of the refusal of the court to give a requested instruction declaring the law applicable to a promise of marriage conditioned upon pregnancy following intercourse obtained by reason of that promise. We held that consent based upon such a condition did not constitute seduction; but we also held that if the promise of marriage was unconditional, the fact that the time or manner of fulfilling that promise would be influenced, or controlled, by the fact of pregnancy did not destroy its character as an unconditional promise of marriage. Woodard v. State, 140 Ark. 258. The instruction on this subject set out in the former opinion was given at the trial from which this appeal comes; but the converse of it was also given, as in the former opinion we said it was proper to do. An exception was saved to this instruction; but it appears to conform substantially to the law as declared in the former opinion.

The difficult question on the present appeal is that of the sufficiency of the corroboration of the prosecutrix; it being earnestly insisted that there is a failure of corroboration both as to the promise of marriage and the act of intercourse, both of which facts are denied by appellant.

The testimony upon this subject may be summarized as follows: Bessie Miller was a girl eighteen years old, who earned her own support by living with and as a member of the family of Dr. and Mrs. Oliver Basham. Appellant began to visit Miss Miller in January, 1918, and she says they became engaged on February 17th thereafter, and it was agreed that they should marry when appellant became nineteen years of age, he being at the time only sixteen years old, and that on the evening on the day on which she became engaged she told Mrs. Basham of her engagement. The testimony shows that thereafter appellant was received in the Basham home as an accepted suitor of Miss Miller, and the jury might have found that he knew that he was being so received by the Basham family. During a period of three months he called on Miss Miller every Sunday except two, visits on those days being prevented by inclement weather, and he and Miss Miller would spend the entire afternoon together in a room assigned to them in the Basham home, except when they left the home for a stroll over the neighboring roads or woods. It was during one of these strolls that Miss Miller says that she yielded to appellant's solicitations. He admits that he was present with Miss Miller at the time and place when and where she says the act of intercourse occurred; but he denies that it occurred. Miss Miller also testified that she yielded to appellant on two other occasions, those acts of intercourse being committed in the Basham home. A fully developed baby was born on December 25, and during the period of time when, in the course of nature, it would have been begotten Miss Miller went with no other young men. Dr. and Mrs. Basham testified that for a period of about three months appellant was constant in his attentions to Miss Miller, and that she received visits from no other young men during that time. Mrs. Basham testified that after Miss Miller told her about the engagement Miss Miller commenced to make quilts, and continued quilting during the time appellant visited her. It does not appear what visits appellant made except those on Sunday afternoons, evidently pursuant to a standing engagement; but the jury might have found from the testimony, not only that Miss Miller was making quilts, but that she continued to do so for such length of time as that appellant must have known that she was doing so. The Basham home was a country residence, consisting of three rooms and a large hall. It does not appear whether any quilt was in the frame when appellant was there or not. But, even in the absence of an affirmative showing on that subject, we cannot say that the jury was not warranted in drawing the inference from the testimony that appellant knew that Miss Miller was employing her spare time in this manner; nor can we say that if the jury so found that this finding was not some corroboration of the promise of marriage.

In the case of Lasater v. State, 77 Ark. 468, 94 S.W. 59, it was insisted, as it is here insisted, that there was no sufficient corroboration of the prosecutrix, and in that case, as in this, such evidence as tended to corroborate her was circumstantial in its nature, except that in the Lasater case certain letters of the defendant were produced which expressed tender affection for the prosecutrix. In that case the court said: "Mr. Justice Folger of the Court of Appeals of New York, in considering a question of this kind, said: 'It is settled that the supporting evidence is required as to two matters named in the act, and as to them only. They are the promise of marriage and the carnal connection. Kenyon v. People, 26 N.Y. 203; Boyce v. People, 55 N.Y. 644. It is settled by the same authorities that the supporting evidence need be such only as the character of these matters admits of being furnished. The promise of marriage is not an agreement usually made in the presence or with the knowledge of third persons. Hence the supporting evidence possible in most cases is the subsequent admission or declaration of the party making it; or the circumstances which usually accompany the existence of an engagement of marriage, such as exclusive attention to the female on the part of the male, the seeking and keeping her society in preference to that of others of her own sex, and all those facts of behavior toward her which, before parties to an action were admitted as witnesses in it, were given to the jury as proper matter for their consideration on that issue.' Armstrong v. People, 70 N.Y. 38. See also People v. Orr, 92 Hun 199, 36 N.Y.S. 398; 25 Am. & Eng. Enc. Law (2 ed.), 239."

We think the facts here recited fully warranted the jury in finding that appellant had sexual intercourse with Miss Miller; and we have also concluded that the jury was warranted in finding that there was substantial corroboration of Miss Miller's testimony that this intercourse was had by virtue of a promise of marriage. The appellant made no contention that he was visiting the girl for the mere purpose of sexual gratification. Indeed, he denied that he had ever had intercourse with her. But, as we have said, he continued his visits regularly to the Basham home, and the jury might have found that he must have known that he was being received there by Dr. and Mrs. Basham as an accepted suitor, and after some one had had intercourse with Miss Miller, as is evidenced by the subsequent birth of a child, and the testimony shows that during this period no other young man visited Miss Miller. A number of circumstances are discussed in the brief for appellant which are said to discredit Miss Miller's testimony; but these are questions which have been passed upon and settled by the verdict of the jury.

Testimony was offered for the purpose of questioning Miss Miller's chastity, although no witness claimed to have had sexual intercourse with her. A witness for appellant did testify, however, that about two years before the time of the alleged seduction he fondled and caressed Miss Miller and took liberties with her person which no chaste woman would have permitted; and there was some other testimony somewhat unfavorable to Miss Miller's reputation for chastity.

Upon that issue the court gave the following...