*1 supra, pointed State Jarvis, out that so much of as Section 41-1117 was pertain conflict with Act 2571 ing intoxicating liquors to the sale of had been minors repealed. presently The result is thаt Section 41-1117 any compound sale covers the to minors of called practical purposes, bitters, thus, tonics or for all has been nullified. provisions longer
Since the оf Section 41-1117 no control the sale intoxicants to a minor, it follows that erroneously charged, and the be conviction reversed. must It is so ordered.
Sammy Clark Arkansas May
Opinion Delivered apрear Act 1Sections of 1961 in the Arkansas penalty as 48-903. This Statutes Section statute deals with the knowingly beverages who sells or furnishes alcoholic to a compiler supersedes minor. comments act this Section error, 1 of Act 257 of We think this is in comment as Act entirely with 180 deals sales where the seller has minority. 180, including Act 277 changing of 1967 amended Act cf penalty.
Sff *2 appellant. Smith and Robert Shulls for Griffin Atty. Langston, Purcell, Joe Gen. and Don Asst. Atty. appellee. for Gen. ap- George This is the second Justice. Pose Smith, raped
peal charged having in this was case. Clark nine-year-old stepdaughter. he his At the first trial was imprisonment. sentenced to life found and judgment one of errors, two that reversed requested give in trial refusal to was thе court’s which jury submitting carnal offense of to the struction testimony in a lesser offense under the which abuse, charge rape. had submitted The court cluded rape, for the was definеd offense of against forcibly and female, of a the carnal as if the reversing we held will. her be carnal the offense would to the act child consented rape. Ark. Slate, 244 Clark rather abuse holding law of (1968). is now That proceedings. subsequent Mode controls case and (1961), 370 U.S. cert. den. (1962). testimony At the second trial the substantially the same as had been at thе first one. We summar- opinion ized the in our and need not set it first. xoroof (cid:127) jury again forth a second time. The found the accused again fixed his at life im- prisonment.
For reversal counsel for insist at including the second trial the court erred in its instruc covering tions to the the substance of statute, a new n tlieoffenses abuse, was not en assertodly after acted until the offense trial was com of 1967; in 1966. Act 362 mitted Ann. Stat. 1967). (Supp. an d- new statute subdivided *3 rape (including abuse) of the offense grees, carnal into three de subject ap which were defined аnd made the of punishment. propriate graduated The earlier statutes -3406) (§§ .expressly repealed, they were 41-3401and but remaining respect may in treated as force with to be of already § committed. See'Ark. Ann.- fenses Stat. 1956). (Repl. might language apply the new the of statute, gave defining court the trial this case,
to this instruction rape permissible degrees declaring the three of the degree: punishment for each charged in this case is with The defendant the guil- Rape Degree. A in the First male is of crime Degree engages Raрe ty First when he in the in of with a female who is less than sexual intercourse upon Any years age. male conviction of First of imprisoned Rape Degree in the be State Peni- shall 'years tentiary to life. from Degree Rape guilty in the Second of A male is engages in years sex- being or old more, he, when years of than-14 a female less intercourse ual Degree Second Any of age. found male Penitentiary imprisoned in Rape the State shall' be years. than nor more than three not less Degree Rape in tlie Third A male is engages female with a in sexual intercourse when he carnally less than 16 a female who is abuses or Any years be convicted male who shall old. imprisoned Degree Rape shall be in thе Third year Penitentiary one for not less the State years. ten nor more than appellant’s the agree insistence that with the degree under
foregoing was, first definition to the case, more unfavorable the law of the doctrine of appeal first have been. On than it should accused prosecutrix nine-year-old consented held that we be offense would of intercourse, act imprisonment punishable only, was then abuse years. court’s under But for from degree of consent of first definition respect absolutely first de- With immateriаl. was gree rape only whether the issue for engaged a female intercourse with in sexual had accused years age, her consent. with without less than 11 prosecutrix undisputed According evidence years of the offense. on the date nine old fixing at life im- action prejud- may been prisonment have the error show's icial. *4 automatically entitle dоes not error, however, By the verdict appellant its new trial. a
the
w'ith
intercourse
had
in fact
the accused had
found that
opinion
stepdaughter.
nine-year-old
our
Under
his
abuse,
appeal
of carnal
therefore
he was
the first
It
prosecutrix
the act.
consented to
not the
whether or
by comparing
the old
new statute with
the
seen
will be
dеgree rape
precisely
is
of third
the definition
that
one
abuse. The
of carnal
former definition
the same as
legislature
only
has
reduced
is that
difference
years imprisonment,
punishment
of ten
a maximum
may
after
commission
even
it
do
vdtich of course
Rep.
the offense.
State v. Nichols, 26
7 Am.
(1870).
bearing upon
Thus the trial court’s error had no
jury’s
guilt
determination of
or innocence.
It af-
punishment
imposed.
fected
the extent of the
to be
among
situation
a
that
we have
choice
several correc-
may, depending upon
measures.
tive
re-
facts,
duce the
maximum for the lesser of-
it to the
offense,
reduce
minimum
fense,
lesser
point,
fix it
at some
ourselves
intermediate
remand
penalty,
trial court for the
case to the
assessment of the
absolutely
grant
conditionally.
new trial either
or
Bailey
the cases were discussed in
v. State,
Several
206 Ark.
(1943).
we think it best to follow the cоurse that
Here
we
essentially
upon
adopted,
facts,
similar
in Threat v.
(1913),
Reversed.
S81 J., concurs. Eooleman, Jo A. I Justice. in the concur result un Eooleman, majority opinion my
reached in the
on
of
the basis
und
erstanding
disposition being
I
of
made. As under
majority opinion,
remanding
stand
the court is
having
option
asking
case with the state
of
upon charge
court to sentence Clark
a
of carnal abuse, or
having
charge
rape
of
a new trial on the
of
with the court
giving
rape given
the instruction on
at the first
trial
requested.
on
instruction
carnal abuse as
only prejudice 1 can see in the court’s instruction
permitted
trial
the second
is
appellant guilty
rape
they
of
if
find
believed that the
years
age
11
10 and
child
over
less
of
and con
of
the law
sented to the act
intercourse. Undеr
prior
of
effective date
Act 362 of
existed
1967,
years
age
with a female
of
sexual intercourse
under
the crime of
she
have constituted
because
would
incapable
giving consent, as a matter of law,
of
is
presumed
a female
12 but over 10
under
it would be
consenting,
age
incapable
years
of
unless the
of
proof
the nature of
that shе understood
the act
showed
consenting
capable
v. Pier
of
thereto.
and was
State,
v.
50 Ark.
I do not age, years “law the ease” limits of .9 she was can be found crime of put plea issue the credibil of not Ilis abuse. uncontra even otherwisе ity evidence, state’s compels presumption innocence a because dicted, jury. guilt Underhill’s Criminal a determination Otherwise, the § 553. court Evidence, Ed. 5th Manning cases. See а verdict criminal direct could (Tex. 1912). prosecution In a State. is child, the child’s fact. aof *6 882 v. Hedrick State, 478; v. 144 Ark. 221
Young
71,
S.W.
Sutton, 230
v.
785;
Ark.
279
State
State,
1193,
170
S.W.
be proved
52
2d 921 (1949) Age may
N.C.
S.E.
244,
records
testimony,
as direct
many
ways
differеnt
such
in
and observation,
and
hearsay, opinion
inscriptions,
jury.
Ms
appearance
spection
person,
225
448,
v.
146 Ark.
S.W.
Terry Dairy
Halley,
Co.
Facts,
Ch.
Abbott
Young
State,
supra;
also
v.
Seе
2d
20 S.W.
State, 179 Ark.
XIV,
164; Gurley
1149,
v.
p.
v.
685
In de
Baugh,
(Mo. 1959).
323 S.W. 2d
886,
as to
consent,
of fact
termining
re
accept
in a criminal
is not
case,
required
jury,
State,
v.
117 Ark.
King
ject any testimony.
82,
Free
State,
1011;
2d
Smith v.
S.W.
852;
Peo
also
333. See
man
S.W.
Opinion