| Ark. | Sep 29, 1924
Appellant was convicted of an assault with the intent to commit rape, alleged to have been committed upon the person of Neulion Spann. He denied having made the assault, and, while the testimony upon this issue is in sharp and irreconcilable conflict, it is conceded that the testimony is legally sufficient to support the verdict.
Error is assigned in the admission and in the exclusion of certain testimony and in giving an instruction numbered 7, over appellant’s objection.
It is insisted that the court erred in permitting the prosecuting attorney to interrogate appellant on Ms cross-examination. This testimony related to a prior assault upon another female, and it is insisted that the effect of tMs cross-examination was to -show that appellant had been indicted for a similar offense and accused of another of like nature.
It appears, however, that the judge had before him at the time this question arose the opimon of this court in the recent case of Parnell v. State, 163 Ark. 316" date_filed="1924-03-31" court="Ark." case_name="Parnell v. State">163 Ark. 316, to which he referred and to which his ruling conformed, and -this was that appellant could not be asked on Ms cross-examination about a mere accusation or an indictment, but that he could be asked if he had committed the •offense or had been convicted of it.
The court excluded testimony tending to show that Miss Spann had fondled certain young men, yet. gavé instruction numbered 7, reading as follows: “Gentlemen of the jury, you are instructed that you may take into consideration any acts of Neulion Spann tending to lewdness, if any such acts are shown by the testimony, and also the general reputation of the said Neulion Spann for chastity; this evidence is to be considered by you for the purpose of determining whether the said Neulion .Spann did or did not consent to the alleged’ attempt of the defendant to have intercourse with her.”
The court properly excluded this testimony, as there was no issue in the case of consent. Maxey v. State, 66 Ark. 523" date_filed="1899-06-10" court="Ark." case_name="Maxey v. State">66 Ark. 523. Having excluded this testimony, instruction numbered 7 should not have been given, as it was abstract; but we do not think it was prejudicial, for the reason, as we have stated, that no contention was made that Miss Spann had consented. In the case of Brust v. State, 153 Ark. 348" date_filed="1922-05-01" court="Ark." case_name="Brust v. State">153 Ark. 348, we quoted from the case of Lockett v. State, 136 Ark. 473" date_filed="1918-11-04" court="Ark." case_name="Lockett v. State">136 Ark. 473, as follows: “ ‘Now, it was competent, of course, to impeach the credibility of the prosecuting wit-mess on cross-examination by interrogating her concerning particular instances of immorality on her part, but appellant was bound by her answers on that subject, and could not introduce witnesses to contradict her. McAlister v. State, 99 Ark. 604" date_filed="1911-07-10" court="Ark." case_name="McAlister v. State">99 Ark. 604.’ ”
It is next insisted that the court erred in permitting the State to interrogate W. M. Burnett in regard to a ■ difficulty ‘ between appellant and Miss Spann’s father, ’which occurred at appellant’s home about a month after the commission of the alleged assault, and the day before appellant was arrested on that charge. ■ Appellant had closed his case when this witness was called, and it’ is insisted (a) that the testimony was incompetent for any purpose, and (b) that, if competent at all, it wás’ hot proper as rebuttal. ’ ."
We do not'think either objection is well'taken: Tt ■ was the theory of the defense that the prosecution was a “frame-up,” designed to extort money from appellant, 'and'that it culminated when appellant insisted'that the father of Miss Spann pay him a debt secured by'a mórtgage on .certain live stock, and Ms refusal to, release -this mortgage.. A fight occurred at the time and-place-mentioned, the circumstances of which were detailed by appellant as a witness, and, according to his version* Mri Spann was the ag’gressor. According to .the testimony of Burnett, appellant was the aggressor .in this difficulty* and we think no error was committed in- permitting Mm to so testify. Appellant had attempted to show that-hé was being persecuted, and that there was an attempt to blackmail Mm, and, having offered testimony to •'establish that defense, there was no error in permitting the State to rebut it. Moreover, it rests within the sound discretion of trial courts-to permit testimony to be adduced out of time, and the exercise of that discretion will not be disturbed unless an abuse is shown, and theré appears to have been no abuse of this discretion here. Wells v. State, 151 Ark. 221" date_filed="1921-12-24" court="Ark." case_name="Wells v. State">151 Ark. 221.
No error appearing, the judgment is affirmed.