Gray v. State

Oct 2, 1916

Reporters:: , ,
Before:: Smith

Smith, J.

Appellant seeks by this appeal to reverse the judgment of the Clay cirсuit court convicting him of the crime of carnal ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍abuse, alleged to have been committed by carnally knowing one Nellie Nelson, a female under the age of sixteen years.

He strongly insists that the verdict is not supported by the evidеnce in that it fails to show the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍act of intercourse, or that the girl was under the age of sixteen at the time of the alleged act.

(1-2) The evidence is far from satisfying, but we cannot say that it is not legally sufficient to sustain the verdict. A child was born tо the prosecutrix, and while she admitted having made conflicting statements as tо its paternity she testified that appellant was ‘its father and that he had had sеxual intercourse with her on numerous occasions. She admitted that apрellant was not the first man who had carnally known her, and her admissions show her to bе a dissolute woman. Such fact ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍however, is no defense against the act of intercourse if the girl was in fact under the age of sixteen, and while the jury had the right to consider the character and reputation of the girl in weighing her evidence on the subject of her age as well as that of intercourse, the jury has passed upon her evidence, and we cannot say it is not legally sufficient to support the verdict, and if her evidence is believed she was under the agе of sixteen at the time of the intercourse.

Appellant urges that the prosecutrix’s own testimony shows her to have been more than sixteen, and so portions of the evidence do, for her testimony upon this subject is somewhat conflicting, but she stated her age with reference to her birthday as told her by her mothеr and with reference to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the time when she attained the age of puberty, hеr testimony being that she had intercourse with a man named Boyd before attaining that period of her life, and if her evidence upon these subjects was true shе had not attained the age of sixteen when she had sexual intercourse with appellant.

(3) The proof shows that the girl lived at the.home of appеllant’s parents, and her testimony was to the effect that her step-father wаs unkind to her and had himself attempted to carnally know her. There was proof that appellant’s mother was advised to take out letters of guardianshiр to prevent the girl’s step-father from annoying her, and this was done, and the aрplication therefor made by Mrs. Gray contained a statement of the age of the girl. Reference to this petition had been made during the progrеss of’ the trial, when Mr. Blood-worth, of counsel ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for appellant, said: “We havе both been referring to, this paper, Mr. Huddleston. Do you want to introduce it in evidеnce?” and in reply thereto the prosecuting attorney said: “Yes, sir, if Your Honоr please, I want to offer this in evidence,” whereupon the court directed that the paper be read in evidence, and the same was accordingly done. After the conclusion of the argument but before the final submission of the cause instructions were asked which directed the jury to disregard this writing, but the court refused to give these instructions.

Inasmuch as Mrs. Gray did not testify in the case we think the рaper should not have been admitted in evidence; but if there was error in its аdmission it was invited by appellant’s counsel, as he, mo doubt, expected tо derive some Advantage from its use. Moreover, the request for its withdrawal was nоt made until after the conclusion of the argument, when it then probably appeared that appellant would derive no benefit from its’ further consideration by the jury. We conclude, therefore, that no prejudicial error was committed in the refusal of the court to so direct the jury. St. Louis Southwestern Ry. Co. v. Mitchеll, 115 Ark. 339.

Upon the consideration of the whole case we are constrained to affirm the judgment of the court below, notwithstanding the misgivings we may have about the truthfulness of the story told by the prosecutrix. It is so ordered.