Patrick v. State

| Ark. | Jun 17, 1918

"WOOD, J.

Appellant was indicted, tried and convicted of the crime of seduction and duly prosecutes this .appeal. The prosecutrix testified that defendant began keeping company with her in November, 1916. At that time she was not yet seventeen years of'age. He visited her every week or two from November until May. Defendant lived at Vilorda, Faulkner County, .Arkansas. He is the only man she kept company with from November to May. Defendant began to have sexual intercourse with witness in February or March, 1917. The reason she permitted the defendant to have sexual intercourse with her was because he promised to marry her. She would not have done so had it not been for such promise. She never had sexual intercourse with any other man. Her baby was born December 26,1917, and the defendant is its father. Defendant had intercourse with witness three or four times. The first time was at Fort Logan H. Roots; that was when he promised to marry witness.

On cross-examination the prosecutrix was asked: Q. The first intercourse was committed at Fort Logan H. Roots? She replied, “On that hill.”

The testimony of the prosecutrix shows that after the first act of intercourse defendant continued to have sexual intercourse with her in February or March up to May, 1917. She was asked, “Where did the intercourse occur?” and answered, “We were coming from town.” She was asked, “Was that in North Little Rock, Pulaski County, State of Arkansas?” and answered, “Yes.” She also testified that she received a letter from defendant after the acts of sexual intercourse in which he promised to marry her. She had burned the letter.

Witness Effie Wright was about fifteen years old and a sister of the prosecutrix. Effie testified corroborating the testimony of the prosecutrix as to her associations with the defendant. She stated that they were engaged to be married; that she overheard a conversation in February or March in which defendant told the prosecutrix that he loved her better than any other girl and wanted her to be his wife. She testified that she saw the letter which, her sister received from the defendant, in which he said that he would marry her. Effie also testified that next to the last Saturday in March she had a conversation with the defendant as follows: “He asked me how I would like to be his sister-in-law, asked me how much I would take for sister.”

Albert Wright, the father of Belle, testified to the frequent associations of defendant with his daughter Belle. Witness had a good opinion of defendant. Defendant took his meals .at witness’ house. He let his daughter go with defendant. He thought defendant was going to marry her. When he discovered that his daughter was pregnant he asked her who the man was and she told him that defendant was the man. Witness had the defendant arrested.

(1) Appellant contends that there is no evidence to corroborate the prosecutrix as to the alleged promise of marriage, and the alleged act of sexual intercourse, and that therefore there is no evidence to sustain the verdict. In Lasater v. State, 77 Ark. 468" date_filed="1906-01-20" court="Ark." case_name="Lasater v. State">77 Ark. 468, we held that the testimony of the prosecutrix in a seduction case may be corroborated by circumstances as well as direct evidence. In that case, page 472, we quoted approvingly from the opinion in Armstrong v. People, 70 N. Y. 43, as follows: “The promise of marriage is not an agreement usually made in the presence or with the knowledge of third persons-. Hence the supporting evidence possible in most cases is the subsequent admission or declaration of the party making it; or the circumstances which usually accompany the existence of an engagement of marriage, such as exclusive attention to the female on the part of the male, the seeking and keeping her society in preference, to that of others of her own sex, and all those facts of behavior toward her which, before parties to an action were admitted as witnesses in it, were given to the jury as proper matter for their consideration on that issue.”

Under the doctrine of the above case the testimony of the prosecutrix was corroborated by both the direct evidence of her sister tending to prove the subsequent admissions and declarations of the defendant of the promise of marriage as shown by his conversation and also by Ms letter. Tbe prosecutrix was corroborated as to tbe promise of marriage and also as to tbe act of sexual intercourse by the testimony of ber sister and father tending to prove tbe circumstances which usually accompany an engagement of marriage, and tbe opportunities thus afforded for sexual intercourse.

(2-3) On tbe main case several witnesses called on behalf of tbe State testified that they were acquainted with tbe general reputation of tbe prosecutrix in tbe community where she lived for chastity and morality, and that such reputation was good. Tbe appellant objected to this testimony on tbe ground that ‘ ‘ same was incompetent, irrelevant, immaterial, prejudicial, and an effort on tbe part of tbe State to bolster tbe testimony of the prosecutrix, ber reputation for chastity, morality or anything else not having been attacked or assailed.”

It was error to permit this testimony to go to tbe jury .at that juncture of tbe proceedings, because neither the chastity nor tbe veracity of tbe prosecutrix bad been questioned by tbe appellant. In tbe absence of proof to tbe contrary, tbe presumption is that prosecutrix was chaste at tbe time of tbe alleged act of sexual intercourse under promise of marriage. Therefore, tbe State was not called upon to affirmatively establish such fact by evidence to that effect before appellant bad attempted to prove that she was unchaste. Tbe majority of tbe court, however, .are of tbe opinion that tbe obvious purpose of tbe above testimony was to prove that tbe prosecutrix was chaste and that since such fact would have been presumed anyway, it was at most only harmless error to permit tbe State to prove it. Tbe admission of incompetent evidence to prove what the law would otherwise presume, is harmless. Braddock v. Wertheimer, 68 Ark. 423" date_filed="1900-11-17" court="Ark." case_name="Braddock v. Wertheimer">68 Ark. 423.

(4) Furthermore, tbe majority have reached the conclusion that tbe language in which tbe objection was couched constituted only a general objection to tbe testimony; that in tbe form presented it was. only an objection to testimony tending to prove tbe general reputation of the prosecutrix for chastity, morality, etc., and that this was not sufficient to present the specific objection that the court erred in permitting evidence of the good character of the prosecutrix for veracity before her general character as a witness had been assailed. See section 3140, Kirby’s Digest. The majority, therefore, conclude that there was no prejudicial error in admitting the above testimony as has been shown.

The writer dissents from the above view, being of the opinion that the language used in making the objection was sufficient to call the attention of the court specifically to the fact that the State was attempting to “bolster the testimony of the prosecutrix. ’ ’ In other words, that the State was introducing evidence of the good character of the prosecuting witness before her general reputation had been impeached, which, under section 3140 of Kirby’s Digest, supra, can not be done. Furthermore, the writer is of the opinion that, even if the language only presented a general objection, it was sufficient to present the-question of the competency and relevancy of the testimony. Vaughan v. State, 58 Ark. 353" date_filed="1894-01-13" court="Ark." case_name="Vaughan v. State">58 Ark. 353-373. The statute itself, supra, renders the testimony incompetent.

The important and interesting question as to whether the United States had exclusive jurisdiction over the offense charged against the appellant is ably presented in briefs of counsel for the appellant and also for the State. But the facts as to the venue do not call for a decision on the question of jurisdiction, and we therefore pretermit a discussion of that issue until it is squarely raised by the facts and a decision becomes necessary.

(5) Venue is an issue to be proved by a preponderance of the evidence. Douglass v. State, 91 Ark. 492" date_filed="1909-10-04" court="Ark." case_name="Douglass v. State">91 Ark. 492. The testimony tended to prove-that the first act of sexual intercourse under promise of marriage was “on that hill,” meaning the hill upon which Fort Logan H. Boots is located, that it was in Pulaski County and the State, of Arkansas. While the prosecutrix on direct examination testified that the first act of sexual intercourse was at Fort Logan H. Boots, yet on her cross-examination, in answer to the question, “The first intercourse was committed at Fort Logan H. Roots 1 ’ ’ she answered, ‘ ‘ On that hill.” Taking the testimony of the witness as a whole, the jury were warranted in finding that the first act of sexual intercourse occurred, as already stated, on the hill on which Fort Logan H. Roots is situated in Pulaski County, in the State of Arkansas.

There was no testimony that the identical place on that hill where the first act of sexual intercourse took place was covered by buildings, walls, or that it was within any permanent inclosure belonging to the United States. Therefore, no issue as to the jurisdiction is presented and the venue is established to give the Pulaski County Circuit Court jurisdiction.

A majority is of the opinion that there is no reversible error, and the judgment is, therefore, affirmed.