Zinn v. State

• Decision Date: 08 July 1918
• Docket Number: (No. 112.)
• Citation: 205 S.W. 704
• Parties: ZINN et al. v. STATE.
• Court: Arkansas Supreme Court

205 S.W. 704

ZINN et al. v. STATE.

(No. 112.)

Supreme Court of Arkansas.

July 8, 1918.

Appeal from Circuit Court, Saline County; W. H. Evans, Judge.

Fred Zinn and Clyde Cheney were convicted of rape, and they appeal. Affirmed.

Mehaffy, Reid, Donham & Mehaffy, of Little Rock, and J. S. Abercrombie, of Benton, for appellants. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State.

SMITH, J.

Appellants seek by this appeal to reverse a judgment in the court below imposing a life sentence in the penitentiary upon a conviction of the crime of rape. The crime was alleged to have been committed upon Mrs. Olive Brummett, and, according to her testimony, the crime was one of revolting bestiality.

Appellants admit the act of intercourse, but say that Mrs. Brummett fully consented, and that she thereby compensated them for services in attempting to carry her from the city of Benton to the hamlet of Grape, in Saline county. Mrs. Brummett and her husband were moving back to this state after having lived for a time in Oklahoma, and they were making the trip in a wagon, when one of the mules died and they were unable to proceed further with the wagon, and Mr. Brummett remained with the wagon and sent his wife on to Grape to see his brother-in-law, who lived there, about getting another mule or horse with which to proceed on his journey. Mr. Brummett had told his wife that an acquaintance of his named Will Dodson lived at Grape and came frequently to Benton, and that upon her arrival at that place to inquire for Dodson, who would carry her to her destination. Upon her arrival at Benton she inquired for Dodson, but he was not in the city, and she was told that he would not be in town until 3 or 4 o'clock in the afternoon. She did not know Dodson, and was anxious to be on her way; so she inquired of others about getting to Grape, but could find no one to take her there until she met appellant Cheney, who offered to perform that service. She left in a buggy with Cheney and Zinn, who commenced drinking shortly after leaving town. They invited her to drink, but she declined. They commenced taking liberties with her person, which she repelled. Finally they drove to a point where the road lost its identity in the woods, and appellants stated that they had lost the road to Grape and did not know how to proceed further. They then announced their intention to have sexual intercourse with Mrs. Brummett, when she struck the horse with the whip and ran the buggy into a tree. She struck Cheney with the whip and made such resistance as she could by screaming, but no one heard or answered her call for help. She was taken from the buggy and ravished by first Cheney and then by Zinn. She says that in resisting Cheney she bit one of his fingers, but appellants smothered her cries by placing their hands over her mouth. She finally ceased to resist because she thought they were going to drown her in the river, and Cheney had intercourse with her for the third time. Appellants finally drank all their whisky, but before doing so Cheney proposed to Zinn to drench Mrs. Brummett with some of it if she would not drink voluntarily; but Zinn refused to assist, and this was not done. Mrs. Brummett made her escape and ran down the road to the home of a Mr. Starnes, but in doing so she had to leave her suitcase in the woods. Mrs. Starnes testified that Mrs. Brummett arrived at her house late in the afternoon. She was walking. Her clothing was wet and her hair full of sticks. She was excited and had been crying. Cheney followed Mrs. Brummett, and when he arrived he went into an outhouse, where he remained for about 30 minutes and then departed. Shortly after his departure Mr. Starnes returned home, and Mr. and Mrs. Starnes accompanied Mrs. Brummett in her search for her suitcase, which was found on the bank of the river. A photograph was offered in evidence showing the place where the grip was found, and other photographs were also offered in evidence showing the scene of the alleged offense. The accuracy of the photographs was established, but they were offered in evidence over appellants' objections.

Appellants testified that they had an understanding with Mrs. Brummett before they left Benton, and that they were only prevented from having intercourse with her in the courthouse, where they went for that purpose, by finding the room locked which they had intended to use. They left town together, and unrestrained liberties were taken with Mrs. Brummett's person as they drove along until finally they realized they had lost their road. They then stopped and selected the most suitable place for the acts of sexual intercourse, in which they then indulged. Cheney accounted for his lacerated finger by stating that he and Zinn disagreed over the road to take to Grape and in the fight which followed Zinn bit his finger.

Over appellants' objection the court gave an instruction reading as follows:

"(2) You are instructed that proof of actual penetration into the body shall be sufficient to sustain an indictment for rape."

This instruction was objected to specifically upon the ground that there was no controversy about penetration, and the jury would likely infer that if there was penetration the offense charged had been committed.

An instruction numbered 8 reads as follows:

"You are instructed that, in determining the guilt or innocence of the defendants, you will take into consideration all the facts and circumstances as testified to by the witnesses in the case, and if, from all the evidence in the case, you find beyond a reasonable doubt that the defendants raped the said Mrs. Olive Brummett, it will be your duty and you are instructed to find them guilty and assess their punishment at death in the electric chair or imprisonment for life."

This instruction was objected to on the ground that it was too general, and might permit the jury to lose sight of the elements necessary to constitute the crime of rape.

Instruction numbered 9 reads as follows:

"You are instructed that a reasonable doubt is not an imaginary, captious, or fictitious doubt, but it is such a doubt as a reasonable and prudent person would have after hearing all the evidence in the case, and if, after hearing all the evidence in the case, you are convinced, beyond a reasonable doubt, that the defendants committed the crime as charged in the indictment, you will find them guilty."

A general objection was made to this instruction, and it is now insisted that it permits the jury to take into consideration other matters than the evidence in the case in arriving at their conviction of guilt.

An instruction numbered 3 was requested by appellants, which told the jury that it was Mrs. Brummett's duty to give an alarm and make an outcry "when she first learned of defendants' design to have sexual intercourse with her." The court modified this instruction by adding after the word "design" the phrase "to forcibly and against her will."

Other instructions were asked which told the jury that it would be essential to find that Mrs. Brummett resisted and that such resistance was carried to the uttermost. These instructions were given, after...