Eape 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.
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 dеnied. 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 aрpeals from convictions for offenses other than capital crimes. Section 2 is: “If the court in which conviction is had shall refuse to grant an appeal to the supreme court, such an appeal may be 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 poAver “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 Avhich the appeal Avas not prayed or the record Avas not filed in the time presсribed, Avhen 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 Avas modified by Act 158 of 1899, Avhich, as heretofore shoAvn, permits circuit courts to allow appeals “for all offenses exceрt capital.”
The term “capital offense” Avas 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 рredicated. 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 (accоmpanied 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, hоwever, 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 day 3 — 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 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 McG-ehee with her sister, Mrs. Inez Humphrey, was awakenеd. 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 “pаralyzed 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 оf January 20-21. After being arrested appellant was brought to Little Bock 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, appеllant 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 footnoted
Mrs. Benson’s explanation of the transaction, in part, is shown below. 4 5
Thе 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 Avas no testimony to support argument in appellant’s brief that his confession Avas Avrongfully obtained. The defendant did not take the Avitness stand to deny the confession.
There is the suggestion that the judgment be 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 cаse of a white-man and slave., A subsequent act of the legislature, passed 17th December, 1838, made distinction as to the punishment. It that, whenever a. white man should be convicted of the crime of rape, he should suffer 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 suffer the punishment of death. The first section of the act оf 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 incоnsistent 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 laAv or first act in regard to the penalty, reenacts its present provisions, and declares in all cases the punishment fоr the crime of rape shall be death; Avhicli had always been the case upon conviction of a slave, by all the statutes passed on that subject. The motion on this point, as Avell as on the other taken to the indictment, Avas properly overruled. ’ ’
Act 187, approved March 20, 1915, gives the jury a right in all cases Avliere 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.
In Webb v. State,
. The trial court instructed the jury that it might fix the defendant’s punishment at electrocution, or at life 8 ■ aprisonment.
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.
Notes
Por methods applicable to computation of time in criminal cases, see McNutt v. State,
Italics supplied.
Unless the sixtieth day should fall on Sunday. If this occurs, a filing on Monday, the sixty-first day, would be permissible.
“While this conversation was going on Mrs. Benson was sitting on the side of the bed, in her nightgown. I told her to let’s go into the next room. I still had the stick I was using as a pistol. I went into the other room because someone [else] was in the bed in this room. We lay down on the bed. I told her to lie down. ... I did what I intended to do. . . . She laid down when I told her to. . . . She told me it wouldn’t do me any good [and] I told her I wouldn’t hurt her. I asked her if she was going to tell anyone about it.”
“It was in the neighborhood of four o’clock, judging by the light. I didn’t look at a watch. It was before daylight. The first thing I knew- — I had my back turned to the side of the bed — I was facing the other side — somе one was shaking my shoulder. My brother comes and goes, and I didn’t think anything about it: just laid there a few minutes. I was so sleepy I couldn’t quite get up. [The in-trader] shook my shoulder again. Finally I turned over to see what it was, and I couldn’t believe it! I was so scared when I saw him I was paralyzed. I saw a сolored man standing there. He had a gun in his right hand: a small pistol. He asked ior money and I told him I didn’t have any. Then he said, ‘Get up.’ At first I just sat on the side of the bed. Naturally I was nervous and scared to death, and started shaking. He said I was making too much racket, that I would wake the child up. He made me go into the other room. I was so frightened I didn’t know what else to do. . . . He said if I didn’t make a racket he wouldn’t have to shoot me: that he didn’t want to have to shoot anybody. ... I just hardly know what happened. The next thing (when I knew anything at all) I got up. I couldn’t say whether I got down [on-the bed] of my own accord, because I was paralyzed with fear. I thought I was going to get killed. I had an orphan nephew living there and I thought more of his welfare than I did of anything else. ... He said that if I told, he would come back and kill me; that he read the papers and would know whether I reported it or not. . . . He took down his clothes and assaulted me: had intercourse with me.”
See Pleasant v. The State,