149 Ark. 1 | Ark. | 1921
Appellant was indicted and tried for rape at the January, 1921, term of the Clay Circuit Cnurt. Western District, Second Division, and convicted for an .assault with intent to commit rape, his punishment being fixed at imprisonment in the State penitentiary for five years. From that judgment is this appeal.
The prosecuting witness is a stepdaughter of appellant, and resided in his home, near Corning, at the time it is alleged the offense was committed. She testified that, on the morning of July 11, 1920, while her mother was milking at the water gap, about 100 yards from the house, appellant forcibly obtained carnal knowledge of her; that, when her mother returned to the house, she was in the kitchen, and appellant in the adjoining room fumbling with a trunk; that there was no door between the two rooms; that her mother asked why the house had not been cleaned, and she answered by saying, “You ought to make your man leave me alone; ’ ’ that she then informed her mother she was going to leave home, and her mother replied, “You are no better than your other sister.’’ The statement made by Mrs. Robinson to her daughter, near enough for the jury to have found that appellant heard it, was admitted in evidence, over the proper objection and exception of appellant, and appellant now insists that the court committed reversible error in allowing the statement to go to the jury. The statement, standing alone and disconnected from evidence subsequently adduced, did not imply a charge against appellant that, he had been guilty of similar conduct toward the other sister. Appellant was not called upon, therefore, to make a denial, even if he heard the statement. The statement was not therefore competent evidence as an admission of appellant that he had been guilty of conduct with the other sister, similar to that now charged against him. The statement, however, was purely hearsay evidence and clearly incompetent on that ground. The admission of it constituted reversible error, if prejudicial to the cause of appellant. We think it clearly prejudicial, when considered in connection with the evidence introduced later, tending to show a sexual intimacy between appellant and the other sister.
Appellant also contends that the court erred in giving instruction No. 12 upon reasonable doubt,, which is as follows: “The burden is upon the State to establish its case to your satisfaction beyond a reasonable doubt. This is a wise and sane provision of our law, which is designed in no case to enable any guilty person to escape just punishment, but, on the contrary, to shield and protect the innocent from unjust conviction. It means simply that if, after a consideration of all the facts and- circumstances adduced in proof in the case, there naturally arises in your minds a substantial doubt as to the guilt of the defendant, then it will be your duty to acquit him. It is not a far-fetched or chimerical doubt to be conjured up for the purpose of enabling .a guilty man to escape just punishment, but a reasonable doubt means a doubt that is reasonable, and one upon which you yourselves would be willing to act in any matter with which you might be confronted in the every-day walks of life.” A reasonable doubt is defined in this instruction -as one upon which a person would be willing to act in a matter confronting him in the every-day walks of life. This definition is broad enough to include the trivial affairs of life, and, for that reason, is inherently wrong. It should have been limited to the important or grave affairs of life. In trivial affairs of life, one would act upon a high degree of probability, whereas in important or grave affairs he would want to know to a moral certainty before acting. In the case of Byrd v. State, 69 Ark. 537, this court condemned an instruction which told the jury that “a moral certainty signifies only a high degree of probability;” and further said that “a high degree of probability is not sufficient; for the jury might think there was a high degree of probability that the defendant is guilty, and yet think there is a reasonable doubt as to his guilt from the evidence in the case. ’ ’
The objection to the instruction was general, but a general objection will reach an inherent defect, such as we find here. The court committed reversible error in thu,s defining reasonable doubt.
Other assignments of error are insisted npon for reversal, bnt we deem it unnecessary to discuss them, as some are not well taken, and others will not likely recur upon a new trial.
For the errors indicated the judgment is reversed and the cause remanded for a new trial.