112 Ark. 442 | Ark. | 1914
The defendant was convicted of the crime- of assault with intent to commit rape.
The State relied mainly upon the testimony of the woman alleged to have been assaulted, and her testimony is sufficient to sustain the charge that the defendant assaulted her at the time and place named in the indictment with intent to have sexual intercourse with her forcibly and against her will. Other witnesses corroborated her testimony.
The defendant denied that he was present on the occasion named or that he assaulted the witness.
The evidence was sufficient to sustain the verdict.
Defendant requested “the court to give the following two, among other, instructions, which the court refused, and those rulings are assigned as error:
“No. 5. You are instructed that before defendant can be convicted of assault with intent to commit rape, you must believe from the evidence that he assaulted the prosecuting witness, and that at the same time, with the intent to use whatever force was necessary to overcome said witness, and for sexual intercourse with her, and unless you so find, you should acquit him of the felonious assault.”
“No. 6. Unless you believe from all the evidence in this case, beyond a reasonable doubt, that the defendant assaulted the prosecuting witness with the intent of ravishing her, and that he intended to use so much force as would he necessary to accomplish that purpose and overcome her resistance, then you are authorized to find the defendant not guilty of an assault to commit rape.”
We are of the opinion, however, that the substance of those instructions was covered by others given by the court in its oral charge.
Counsel for appellant rely upon the case of Paul v. State, 99 Ark. 558, as sustaining their contention that this constitutes reversible error.
In that case, however, the judgment was reversed and the cause remanded for a new trial on account of two other errors of the court. It was said in the opinion that the refusal to give those instructions was error, but it was not said that the case would be reversed on that account. The case was, in fact, reversed on other grounds, and the error in refusing those instructions was mentioned in view of another trial of the case.
Those two instructions were appropriate in this case, and the trial court should have given them, we think, as clear enunciations of the law on the subject. But, as before stated, the same idea was conveyed to the jury in other instructions, and we do not think that the refusal of the court to give these operated to the defendant’s prejudice.
Another ground urged for reversal is that the prosecuting witness, while on the witness stand, pointed the defendant out and referred to bim by using an epithet. Objection being made by defendant, the court admonished the jury that she must “just testify” and confine herself to answering questions.
Defendant contented himself with saving exceptions without asking the court specifically to give any directions to the jury. We are of the opinion that the incident did not constitute reversible error.
It is next insisted that the court erred in permitting the officer who arrested defendant to refer in his testimony to the fact that defendant was drunk. The officer stated that when he went to arrest the defendant he found him and his wife together and that he recognized him by being with his wife on account of the fact that she had been to police headquarters looking for defendant, claiming that he was drunk.
As soon as objection was made the court instructed the jury not to consider this statement, which removed any prejudicial effect which otherwise might have resulted.
Another error is assigned in the court’s refusal to suspend the trial during the progress thereof and postpone further proceedings to await the procurement of another witness to contradict the prosecuting witness concerning her testimony in the examining court.
Defendant had produced several other witnesses who testified to the same contradictory statements of the prosecuting witness, and if it was desired to have this particular witness he should have been summoned before the commencement of the trial. We do not think any error was committed in this ruling. It was a matter ■within the discretion of the court under the circumstances of the ease, and no abuse of that discretion is shown. Judgment affirmed.
