114 Ark. 239 | Ark. | 1914
This is an appeal from the judgment of conviction of the crime of assault with intent to commit rape. Appellant was seventy-four years of age at the time the crime was alleged to have been committed, and the accusation is that the assault was made upon a young woman in the city of Paragould.
The testimony is conflicting, but is sufficient to warrant the finding that he made the assault with intent to have carnal knowledge of said female forcibly and against her will.
The evidence of the injured female is that she resisted successfully, and that the appellant finally desisted before the consummation of the enforced act of intercourse.
Appellant’s testimony tended to show that on account of his extreme age and failing powers, he had lost all desire for sexual intercourse, and was physically unable to consummate such an act. In the trial of the case, his attorney asked the court to give an instruction to the jury to the effect that the offense was not complete unless the accused was capable of consummating the act of intercourse — in other words, that impotency was a defense to the charge of assault with intent to commit rape.
Our statute defines an assault as “an unlawful attempt, coupled with present ability to commit a violent injury on the person of another.” Kirby’s Digest, § 1583. That definition has been applied by this court in determining the essential elements of the crime of assault to commit murder, the court holding that “both the intention and the ability to commit a battery are necessary to constitute an assault.” Pratt v. State, 49 Ark. 179.
Professor Wharton, in his work on Criminal Law (eleventh edition, Vol. 1, § 690), lays down the rule broadly that impotency is a sufficient defense to an indictment for the consummated crime of rape, though not for an assault with intent to rape.
In another part of the same volume (section.223), he says: “If there be juridical incapacity for the consummated offense (e. g. infancy), there can be no conviction of the attempt; and, therefore, a boy under fourteen can not, according to the prevalent opinion, be convicted of an attempt to commit a rape, as principal in the first degree. It is otherwise when the incapacity is merely nervous or physical. A man may fail in consummating a rape from some nervous or physical incapacity intervening between attempt and execution. But this failure would be no defense to the indictment for the attempt. At the same time there must be apparent capacity. ’ ’
Mr. Bishop also lays down the rule that impotency is no defense to the charge of assault with intent to commit rape.
Appellant testified in his own behalf, and on cross-examination, counsel for the State drew out the fact that several years ago appellant had been convicted of a similar offense, alleged to have been committed on the person of another woman, and sought to draw out from him an admission that he had committed the offense. Appellant admitted that he had been so convicted, but denied that he was guilty of the charge. Objection was made to this line of examination, and an exception was duly saved, and is now pressed as grounds for reversal.
Counsel for appellant rely upon the statute of this State (Kirby’s Digest, § 3138, as amended by the Act No. 52, of 1905, p. 143), which declares that “A witness may be impeached by the party against whom he is produced, by contradictory evidence by showing that he has made statements different from his present testimony, or by evidence that his general reputation for truth or morality render him unworthy of belief, but not by evidence of particular wrongful acts, except that it may be shown, by the examination of a witness, or record of a judgment, that he had been convicted.of a felony.”
We are therefore of the opinion that there is no error in the record; and as the evidence was legally sufficient to sustain the conviction, the judgment must be affirmed.
It is so ordered.
