*1 38
operation management of tlie store was under the Mr. Honeycutt; Otis that he Mr. a W. Luebben, Oscar paid salary Certified Public were both a Accountant, practically attended to all of the and that the details; by substantially greater work done the executor was not customary acting than the usual one in that duties of capacity. inventory by
The first a filed the executor shows personal property estimate of we believe that $77,977.98; personal actually property a this is fair value of the by administered the executor. valuation, On this executor’s fee would be limited to of the first thou- 10% of the bal- sand, thousand, next four 3% 5% Figured ance. Ark. Stats., 62-2208. on this § basis, executor would be In addi- $2,489.34. entitled to fee of tion, we believe the executor entitled to a fee of $250.00 property. work Ark. for done in connection with real 62-2208(b). Stats., then § The total executor’s fee would be $2,739.34. petition rehearing granted extent reducing the executor’s fee as indicated.
McDonald v. State.
4804-5 279 W. 2d S.
Opinion May 16, delivered *2 appellant. A. Johnson, E. for Gentry, Attorney Thorp Tom Thomas, General, Atty. appellee. Asst. General, appellant guilty A J. Seaborn J. found Holt, rape (Ark. 41-3401) § the crime of Stats. punishment imprisonment assessed his at a term of life penitentiary. judgment in the state From the this appeal. appeal (Case No.
Case 4805, consolidated with this 4804), No. relates to a motion for new trial on based alleged newly evidence.
— —1 appellant questions sufficiency For reversal first Assignment pros- (a), (b), (c). of the ecuting evidence,— 1— thirteen-year-old appellant’s daughter witness grade who was in the ninth in school. She testified that early July, 1954, 1:30 P. M. father, at about her berry . came in he said he wanted to take us .. nicking, going I him told I didn’t feel like because thought going I kind of was he do.” what got A short time before, their home bed with and tried to have intercourse with However, her. “Q. didn’t have intercourse with day? Q. on that A. sir. He No, didn’t force to have jumped A. intercourse with him? He tried out to, but my and he told me off bed, he would knock head acting Continuing for testimony: so smart with him about it.” kids
“I went with him and the three little ("Witnessbegins crying.) got were with us. And we so going there, out and he told the little kids we were go look for I told berries. him I didn’t want to —I stay go wanted to and he truck, him, made me with got jeans, *3 and so I and I had on and made down, blue he pull raped me them off and he to and we went back me, He the truck. tried start to it and it wouldn’t and start go again, so he made me back with him and when we go came it still back, wouldn’t and he made start, me the third . back . . Q. time. carried Each time he you you your in the woods, back did take off clothes? you put A. Yes, Q. sir. And them time back on each your when he finished? A. Yes, sir. Q. had What feeling your toward McDonald? father, Miss A. IWell, again. don’t ever want to have Q. to live with him Isn’t you strongly your it true that dislike Yes, father? A. got sir . . . And when we back to the truck, pulled got the truck and we started and we home, to a Highway bought little store on 67, and he the children some ice and cream, we went on Q. home. Where your mother? A. She was there at the house. We tried get daddy go to to let her with us and it. he wouldn’t do any He any her told there wasn’t use, it wasn’t of her go. you business—that she didn’t need Q. to Did tell your mother what occurred? A. then. No, Q. sir, night. When did ? tell her A. That if He told me told her, it would be too bad for me. He told I had me better not tell her. . . . Q. Do know what inter- course A. Q. is? Yes, sir. Did he have intercourse with you? A. sir.” The Yes, was afraid of her father. testified She as indicated that she resisted his
41- and and her brought he chased her back advances, that her and without consent. forcibly raped accusations, his daughter’s denied or Appellant how- her, he had ever tried to have illicit relations with the sole of the ever, which was jury, judge to to weight given it, evidently and be chose we believe the child’s version of what When happened. to her all the case give we its force in favor as strongest probative cannot it is must, say we not substantial and legally the jury’s sufficient support judgment. verdict Her testimony alone was standing legally sufficient to convict. It was not it necessary that be corroborated. Bradshaw We held in v. Ark. 189, 199 S. W. 2d 4): 747 (Headhote “Since one of essential ele- ments in the crime of the act must be com- forcibly mitted the will of prosecutrix, she is not an accomplice corroboration of her testi- mony is not necessary.” The words “forcibly ravish a female” mean the act “was done the will’ ‘against or female without her has the consent, which same State Peyton, v. meaning.” 125 S. W. 137 Am. St. Rep.
The lesser of offenses assault with intent to rape, and carnal abuse of a female under the of 16 age years, were presented to properly the jury by court, the but, as indicated, the elected to find appellant guilty of the greater offense of rape. — 2
— Appellant Assignment argues the State erred in offering as a witness appellant’s wife knowing could she not be compelled to testify her against (by husband virtue 20), and that this §§ offer 43-2019 — the prejudiced jury against him. We do not agree. On this issue the record discloses: “Essie Marie McDonald, being called as a witness for the after having duly first been sworn, was seated in the witness chair. By the Court: Let the record show Essie Do called. defendant, is wife McDonald,
Marie (Discussion rec- off the motion, Mr. Lowe? have ord.) By hold that Mrs. Mc- The Court will the Court: testify. By incompetent Lookadoo: to Mr. Donald By objection Court: an to this later. want to make may go stand aside back Mrs. McDonald, Jury, who the witness room. Gentlemen witness leaving and the the wife of the defendant, the stand is testify wife cannot held that a Court has injured; personally except she has been where husband Supreme has held this does not include Court (Witness your right, All call next witness. children. ” excused.) objection appears appellant made It position in no to com- and he is, therefore, court’s action plain time here. Lewis v. for the first 2d 6, 148 S. W.
—— 3 appellant Assignment 3 contends that he is enti- In newly grounds new trial on tled to a newly says: “That defendant evidence. He has obtained presented that could not have been discovered evidence the trial on his behalf and in his defense to the court at original trial. at the Because, same is in the nature of
“One. medical made to him or Attor- evidence and was not available his ney nor could have at at time of been found ’’ rely- rule is time because of concealment. Our that one ing on for a discovered evidence new trial must “Newly-discovered evidence, show: material applying, party dili- he could with not, which reasonable ’ ’ produced gence, at Ark. have discovered and the trial. § 27-1901. Stats. argues *5 H. that Dr. H.
In this connection prosecutrix physical examination of the Holt made a hymen still revealed the trial which that after testimony the- from that this was concealed intact and necessary appellant. a conviction it was To secure ‘‘‘ hymen prove been The carnal had broken. tliat the required knowledge to constitute must be that is hymen particular depth,’ and the in to no re, res but body ruptured Poe v. nor the torn.” need not be 292. The 129 S. W. record shows that 172, attorneys appellant at the trial in effect admitted to appellant’s during mo- trial consideration court they knew a medical exam- tion for a new trial that that prosecutrix prior to ination had been of the made days thirty it trial but since was made about after alleged rape, they of no had concluded it mate- be would rial On value. this issue the court as fol- commented attorneys lows: “The defense medi- were aware that a they cal examination had been were aware of made, day prior fact that that after con- trial, they qualified neurologist, sultation with a concluded examining physician that the examination of the would particularly light ap- be value, of material of the proximately days elapsed which had between the date act and the date of the examination attorneys . . . for the defendant had unrestricted prosecuting access to the witness, and the Mrs. mother, they questioned parties McDonald, length.” that those at proffered We hold that this medical evidence statutory requirement failed to meet the above for ad- mission. v. French 205 Ark. 386, 168 2d 829. S. W. Henry, hearing
Another doctor, also testified at the on the motion for a new trial effect that to have inter- hymen perforated. course the must be His hypothetical questions. was based on phys- He made no prosecutrix ical examination of the and admitted proper had never seen showing her. There was no by his could not have been obtained due dili- gence prior to the trial.
Three ladies hearing also at testified, motion for January new effect, about six alleged rape, they about months after the appellant’s presence went home prosecutrix had asked her mother whether the had had intercourse with the and that Mrs. *6 44 replied not did had tried to but
McDonald daughter differ- did not know and that her succeed, took her a doctor. and that she ence, argues Appellant Mrs. statements of above says: so admissible for the reason McDonald were daughter in for the make statements “The mother can daughter by, presence, silent stands if the is them. the state- no effort to refute What were makes offered? Those are declarations made, ments that were party, also the as she an interested interest, testimony its of those ladies State.” As we view testimony impeach the be to discredit and effect would given by she shows which testimony ground for a had never recanted. Such not newly- granted for a trial. “A new trial will not be new merely evidence which is cumulative of impeach on the trial tends to the credi- offered or which bility' 188 State, witnesses.” Norrid v. State’s Edge Ark. 63 S. 2d Headnote 4. See 32, 526, also, W. man v. 2d v. 34 and Reeder 753, S. W. 27 hold Ark. S. 989. So we W. 2d overruling in the court was motion for a new correct ground newly trial on the discovered evidence. Finding judgment is affirmed. error, Bobinson, dissents. J., participating.
Chief Justice not Seamstbr Bobinson, I don’t J., that ever dissenting. suppose in hu- before the entire of civilized a history society has un- man been life on weak and being imprisoned for such which the defendant upon evidence as that satisfactory was convicted this case. year daughter’s un-
The thirteen old by evidence or circumstances corroborated substantial Although any corroboration of the kind. necessary kind, a case of this victim is passing be
lack of corroboration should considered ground of motion for new trial on the appointed evidence. The trial court discovered lawyers two they part hut took no defendant, for the repre- subsequent attorney to the trial. case who appeal appellant on filed a motion for a new trial sents *7 alleging, newly alia, inter evidence. discovered prosecutrix
At trial, testified that her father period raped her three times within a of about 45 younger nearby; minutes. Her brothers and sisters were Negroes some were also close to the scene. There is no anyone outcry, evidence that heard an nor does the prosecutrix testify outcry. rape an she made The alleged day July, to have occurred on the first of says night, Prosecutrix she told her mother about it that yet charges no were filed the defendant until August two later months on 30, 1954. prosecutrix
The of convincing. is not admitted She that she dislikes her father and that such feeling long existed time before the “raped” have occurred. Her that her father part, her is a showing mere conclusion on her since no meaning rape. made that she knows the of word following question ais asked her and the she answer gave:
‘ (‘ sorry you Q. I am Wanda, to have to ask but this, penetrate private organs? did with his That is question I you, the you want to ask for the to hear. Do
understand what asked?
“A. No, sir.” questions It propounded can be seen two were question. to the witness as one Her answer was “no”. penetrate She could have meant that he did not her, or she could have meant that she did not understand the question. light developed In the of the evidence on the ground newly for a new motion trial on the discovered appear evidence, it would that when she “no”, said she penetration. meant there was no As heretofore attorney represented stated, the who the defendant on ground the motion for newa trial on the dis- n represent him at the trial. This did not evidence
covered attorney prior the State had trial, produce exam- prosecutrix examined but did physician called ining physician a witness. This as a new testified the motion for a witness on as day 4th Au- that he examined gust, charged before the defendant was a month almost “There was The doctor stated: with-the offense. physical girl, McDonald, Lou that this Wanda commonly experienced intercourse as we sexual had ever speak He further:- of it.” testified did find examination, in that
“Q. Doctor, hymen time? at that state “A. sir. Yes, hymen? *8 the What was state
“Q. imperforate. hymen The “A. Imperforate mean? does that
“Q. —what perforated. had never been “A. It means that it shape opening hymenal in was annularial Its —that in diameter. than one c.c. One circular —and less means tip admit the an inch. It would not c.e. is one-third of finger.” my little of that there was no
The doctor also testified he stated: cross-examination, trauma or disease. On of possible you it ‘‘Q. Doctor, isn’t true this-—it’s girl had as to whether or not this had could be mistaken examina- not, her father or from the intercourse with possible you just it I ask if tion made? wrong? could be possible, it because
“A. I see how could be don’t August would admit without severe child not on this pain pain examine in an effort to caused her some —I larger anything than an admit wouldn’t her —and she ordinary cigarette. cigarette; ordinary it an isn’t true Than
“Q. is a month, times of the there difference at different expansion? girl expansion in the difference of a —a change might I “A. there No, it; add that quite hymenal a wide variation of the of there is size the opening in different individuals.” hearing
It was further shown on the motion subsequent appellant, to the of arrest that, mother prosecutrix daughter’s presence of stated raped not the child was but she did know not standing differ- prosecuting ence. The witness was there when deny her mother made this statement and did not what the mother said. attorneys represented
When one who had defendant at the trial was called aas on witness purpose showing motion for a new trial for the he knew whether by that the had been examined prior testify. a doctor he refused to compel any court did him to do so. In event, a passing guilt or innocence of the defendant should have had the benefit of the of the doctor who physical subsequent made the examination to the time to have occurred. grant ground Therefore, would á new trial on the discovered evidence. *9 Thompson Harper. v.
5-641
Opinion May delivered
[Rehearing denied June 1955.]