OPINION
Fаrmer L. Black, Jr. was convicted of rape in the Criminal Court of Shelby County and sentenced to serve 30 years in the penitentiary. The sentence was ordered to run consecutive to a sentence imposed on him in Arkansas for the crime of kidnapping. On the trial and his motion for a new trial he had privately retained counsel but having been certified indigent his appeal in error was prosecuted by the Public Defender of Shelby County. We have considered all of the assignments of error and finding no merit in them affirm the judgment of the Trial Court.
Black’s first three assignments of error are that there was no evidence to sustain the verdict, that the evidence preponderates in favor of his innocence and against his guilt, and that the verdict is contrary to the law and the evidence. The proof shows that the prosecuting witness was waiting for a bus at Poplar and Cleveland in Memphis on the evening of December 1, 1970 when the defendant, having put her in fear by violence and threats to take her life, forced her into an automobile and took her to a more secluded place in the city where he raped her. Afterwards he took her to the apartment house where she lived and she immediately reported the details of the crime to others. He was a stranger to her but her account of his physical appearance and conversation and оf the car he was driving led unmistakably to his apprehension and identification. A scar on the right side of his neck and a mangled right ear set him apart from others. Her report checked out so remarkably well that no doubt of his identity could be entertained. He did not testify and relied on an alibi which the court and jury rejected. The assignments are ovеrruled.
Part of the fourth assignment of error and all of the ninth complain that the defendant should have been granted a new trial on account of newly discovered evi
The defendant sought to introduce some kind of writing when the motion for a new trial was heard purporting to be the victim’s statement to the police but the Judge would not admit it because no affidavit had been filed showing ordinary diligence to obtain the evidence before trial. His ruling is in conformity with our practice. Rоss v. State,
The Judge went into the question raised in the ninth assignment and found that the State’s rebuttal witness testified the defendant swore in Arkansas that he had a dispute with his wife March 1, 1970 and when he got home she and her children were absent; and that he spent the night there and left the next morning, March 2. Hence, there was no conflict for newly discoverеd evidence to resolve. The record here bears out the Judge’s finding.
The fourth assignment further complains that during the State’s proof the defendant was ordered to and did stаnd up before the jury, presenting a front and side view of himself which no doubt revealed the disfigurement referred to. He did not testify. Our courts will not compel a defendant to pаrticipate in an experiment in the presence of the jury or even compel him to elect to participate or not. Stokes v. State,
The fourth and ninth assignments of error, in their individual pаrts and collectively, are overruled. The tenth assignment of error observes generally that if the defendant had known about the newly discovered evidence and prеsented the witnesses at the trial he likely would have been acquitted and it is overruled.
The fifth, sixth and seventh assignments of error complain that three witnesses were allowed tо relate what the victim told them about the crime. Upon being left at her apartment house by the defendant after the crime she reported the experiencе immediately to two female tenants there. She was separated from her husband at . the time but called him and upon his arrival in about 45 minutes, related the details to him. This all occurred within the space of an hour or two after the offense was committed. It was not er
The eighth assignment of error is the doctor should not have been allowed to testify because he could not give an opinion whether the victim had been raped. The doctоr examined her three or four hours after the offense occurred and found no physical evidence of penetration except the presence of non motile male sperm. He was unable to give an opinion that she had been raped or had engaged in sexual intercourse near the time in question. He said that usuаlly sperm cells remain motile eight to twelve hours after intercourse but can lose motility in three hours; and that menstrual flow causes loss of motility early. She was in a menstrual period. The fact that the doctor could not give an opinion about when intercourse occurred would go to the weight of his testimony, not its admissibility. The assignment is overruled.
It is сomplained that in examining witnesses the Attorney for the State got over to the jury that the defendant had at least been tried for a criminal offense in Arkansas and that, it is believed, the jury knew on this account he had been convicted for an offense there. The tactic is said to be unfair and prejudiced the defendant as shown by the thirty year sеntence fixed by the jury. It is agreed the objection was not contained in the motion for a new trial filed by privately retained counsel.
The defendant’s alibi was that he spent all of March 1, 1970 with his wife at her place of business and her home and left her the next afternoon, March 2, to go to Texas and seek employment; and that he had no dispute with her and she did not take her children and leave. The state countered with proof that he made statements and testified in court to the contrary in Arkansas. Although the jury rеasonably could not have concluded from the record that he was convicted of an offense in Arkansas it reasonably could have inferred he was tried for some unidentified offense there. But the inference arose out of proof of the circumstances under which the defendant’s statements were uttered. A part of the proof clearly was admissible and a part might have been excluded if objected to. The State’s rebuttal proof on the subject is regarded as a run of the mill presentation and no calculated design to inject inadmissible evidence into the hearing or deprive the defendant of a fair trial.
In any event the alert Trial Judge kept thе inquiry about the Arkansas incident remarkably free of objectionable material that might prejudice the defendant. We think the jury’s verdict is based on the gravity of the crime insteаd of the inference that the defendant had been tried elsewhere on some undisclosed offense.
All of the assignments of error are overruled and the judgment is affirmed.