164 S.W.2d 442 | Ark. | 1942
Rape was charged by information. The jury convicted and assessed the death penalty. Pope's Digest, 3405. The appeal questions sufficiency of the evidence and alleges error in the admission of defendant's confession. *610
The attorney general, without discussing the matters assigned as errors, rests upon the proposition that the bill of exceptions was not filed within the time allowed. We think the point is well taken.
The verdict was returned February 4, 1942. Defendant's motion for a new trial was filed the following day, and overruled February 13. Appeal was denied. Fifty-eight days were allowed for bill of exceptions. It was approved May 6 and filed with the circuit clerk May 7. Excluding February 13, and allowing all of the fifty-eighth day, Monday, April 13, and not May 7, was the last day.1
Section 1 of Act 158, approved May 8, 1899, authorizes circuit courts to grant appeals from convictions for offenses other than capital crimes. Section 2 is: "If the court in which conviction is hard shall refuse to grant an appeal to the supreme court, such an appeal may he granted by any judge or judges of the supreme court, in manner as now provided by law." Pope's Digest, 4240. A headnote prepared by the editor who compiled the Acts reads: "Circuit court to grant appeals for all offenses except capital."
In Bromley v. State,
But, it may be argued, 4249 of Pope's Digest confers upon a judge of the supreme court power "to extend the time for filing the record."2
There is the further provision (Pope's Digest, 4250) that "The court may act upon and decide a case in which the appeal was not prayed or the record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit."
These sections are from title 9, chapter 1, 327, of the Criminal Code. Their effect was modified by Act 158 of 1899, which, as heretofore shown, permits circuit courts to allow appeals "for all offenses except capital."
The term "capital offense" was defined by Chief Justice McCULLOCH in Outler v. State,
In Adams v. State,
In the case at bar jurisdiction was acquired by this court when the judgment was filed April 14th, the sixtieth day after judgment. Certiorari was issued by the clerk directing that the record be brought up. But there is no record upon which error can be predicated. The record proper, according to Stevenson's Supreme Court Procedure, includes the pleadings, exhibits, statement showing service of summons, any material order of the court preceding judgment, the judgment itself, motion for a new trial, order overruling such motion, and the order granting appeal. Morrison v. St. Louis San Francisco Railway Co.,
Perhaps the only ground upon which the Bromley case and the Adams case can be harmonized is that which distinguishes the court's right to grant additional time when the motion for relief (accompanied by the judgment and such other parts of the record as appellant may care to present) is filed within sixty days, as contrasted with a similar request made after the sixty-day period has expired. Certainly, when the record is filed within sixty days, the supreme court has jurisdiction; and though it may be questionable whether a judge has power to extend time, we prefer, when there is uncertainty, to resolve the doubt in favor of a liberal construction, and to adhere to the practice recognized during the past few years.
It must be remembered, however, that no power reposes in this court to increase the time allotted for filing a bill of exceptions with the circuit court, and unless it is so filed within sixty days — that is, not later than the sixtieth day3 — only the record can be considered on appeal.
. . . .
It is always unsatisfactory to dispose of an appeal on technical grounds, and this is particularly true in criminal cases when the penalty is severe. But if this proceeding *613 should be disposed on its merits, rather than on the record alone, it would have to be affirmed.
. . . .
The morning of January 21, Mrs. Annie Benson, who lived at McGehee with her sister, Mrs. Inez Humphrey, was awakened. In the bed with Mrs. Benson was a young nephew. Mrs. Benson, who first thought her brother was attempting to awaken her, turned and looked into the face of a Negro, who demanded money. The intruder was informed there was none. Mrs. Benson testified he was armed with a small pistol, and she was "paralyzed with fear." The Negro, later identified as appellant, directed her to go into an adjoining room, where his lust was satiated.
Appellant admitted he was an itinerant burglar and could not remember how many houses he had entered or attempted to enter the night of January 20-21. After being arrested appellant was brought to Little Rock and questioned by Sergeant Templeton of the Arkansas state police; Prosecuting Attorney Henry Smith, of Pine Bluff, and Sheriff Howard Clayton, of Desha county. When asked how he awakened Mrs. Benson, appellant replied: — "I shook her with my hand. I had a stick so she would think it was a pistol. It didn't take long to get this woman up. I asked her if she had any money she could give me, and she said she did not. Other testimony is printed in the footnote.4
Mrs. Benson's explanation of the transaction, in part, is shown below.5 *614
The confession of appellant and the testimony of Mrs. Benson — some of which is not copied — were sufficient to establish the crime of rape. A holding in Threet v. State,
There was no testimony to support argument in appellant's brief that his confession was wrongfully obtained. The defendant did not take the witness stand to deny the confession.
There is the suggestion that the judgment he modified by substitution of life imprisonment for electrocution. This we could not do even if the bill of exceptions had been filed in time, although in Davis v. State,
A discussion of the law's evolution is found in Dennis a Slave, v. The State,
"By an act of the revised statutes, approved 16th February, A.D. 1838, and which was afterwards put into operation by the proclamation of the governor, it was declared, `that any person convicted of the crime of rape, should suffer the punishment of death.' The act, in respect to the punishment of the offense, made no distinction between the case of a white man and slave. A subsequent act of the legislature, passed 17th December, 1838, made distinction as to the punishment. It enacted that, whenever a white man should be convicted of the crime of rape, he should stiffer punishment for the offense, by confinement for a term of years in the jail and penitentiary house of the state. The act excepts the case of a slave out of this provision, and affirms that, whenever a slave is convicted of the crime of rape, he shall stiffer the punishment of death. The first section of the act of the last legislature, approved 14th December, 1842, declares, `that all persons convicted of the crime of rape, shall suffer the punishment of death.' The second repeals all laws inconsistent with the provisions of the first section. The inquiry then is, what laws were inconsistent with this provision. The answer is at hand, and cannot be mistaken. So much of the act of December, 1838, as changed the punishment of rape, when committed by a white man, from death to confinement in the jail and penitentiary. This is the only law inconsistent with the provisions of the act of 14th of December, 1842; and this the second section of the last act expressly repeals. This last act, so far from repealing the old law or first act in regard to the penalty, reenacts its present provisions, and declares in all cases the punishment for the crime of rape shall be death; which had always been the case upon conviction of a slave, by all the statutes passed on that subject. The motion on this point as well as on the other taken to the indictment, was properly overruled."
Act 187, approved March 20, 1915, gives the July a right in all cases where the punishment at that time was death, to render a verdict of life imprisonment in the state penitentiary at hard labor. Pope's Digest, 4042. *616
In Webb v. State,
The trial court instructed the jury that it might fix the defendant's punishment at electrocution, or at life imprisonment.
It will be observed that the discretion conferred by Act 187 relates to the jury, and not to the courts.
No errors are shown by the record proper, and the judgment must be affirmed. It is so ordered.
Mr. Justice MEHAFFY and Mr. Justice HOLT think the judgment should be modified by substituting life imprisonment for electrocution.