{ "id": 1367865, "name": "Davis v. State", "name_abbreviation": "Davis v. State", "decision_date": "1921-11-14", "docket_number": "", "first_page": "500", "last_page": "504", "citations": [ { "type": "official", "cite": "150 Ark. 500" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "106 Ark. 131", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1345668 ], "opinion_index": -1, "case_paths": [ "/ark/106/0131-01" ] }, { "cite": "84 Ark. 128", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524361 ], "opinion_index": -1, "case_paths": [ "/ark/84/0128-01" ] }, { "cite": "72 Ark. 409", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505614 ], "opinion_index": -1, "case_paths": [ "/ark/72/0409-01" ] }, { "cite": "15 Ark. 624", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728577 ], "opinion_index": -1, "case_paths": [ "/ark/15/0624-01" ] }, { "cite": "14 Ark. 286", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1862728 ], "weight": 2, "pin_cites": [ { "page": "370" } ], "opinion_index": -1, "case_paths": [ "/ark/14/0286-01" ] }, { "cite": "21 Ark. 69", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1868338 ], "opinion_index": -1, "case_paths": [ "/ark/21/0069-01" ] }, { "cite": "58 Ark. 353", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329143 ], "opinion_index": 0, "case_paths": [ "/ark/58/0353-01" ] }, { "cite": "99 Ark. 604", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1314523 ], "opinion_index": 0, "case_paths": [ "/ark/99/0604-01" ] }, { "cite": "103 Ark. 119", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1352038 ], "opinion_index": 0, "case_paths": [ "/ark/103/0119-01" ] }, { "cite": "84 Ark. 16", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524440 ], "opinion_index": 0, "case_paths": [ "/ark/84/0016-01" ] }, { "cite": "106 Ark. 131", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1345668 ], "opinion_index": 0, "case_paths": [ "/ark/106/0131-01" ] }, { "cite": "72 Ark. 409", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505614 ], "opinion_index": 0, "case_paths": [ "/ark/72/0409-01" ] }, { "cite": "15 Ark. 624", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728577 ], "opinion_index": 0, "case_paths": [ "/ark/15/0624-01" ] } ], "analysis": { "cardinality": 418, "char_count": 8811, "ocr_confidence": 0.512, "pagerank": { "raw": 2.868860664001083e-07, "percentile": 0.8426423702694635 }, "sha256": "bf71ebcc0b9a1f62118155fb92525cf806b360594795f712e8e3f3e6145e05fd", "simhash": "1:452fcd22b4188e2d", "word_count": 1485 }, "last_updated": "2023-07-14T14:41:32.790141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Davis v. State." ], "opinions": [ { "text": "Humphreys, J.\nAppellant was indicted, tried and convicted in the Sevier Circuit Court for the crime of carnal abuse, and as punishment therefor sentenced to serve a period of two years in the \u00a1State penitentiary. Prom the judgment of conviction an appeal has been duly prosecuted to this court.\nAccording to the evidence adduced in behalf df the State, appellant had sexual intercourse with Nina Olmstead, a female under the age of sixteen years, on the night of the 26th day of April, 1920, in his home where she was employed to wait upon appellant\u2019s wife during her illness occasioned by childbirth.\nIn the course of the trial the court refused to permit appellant to show by other witnesses specific acts of immorality of the prosecuting witness, Nina Olmstead, with other men, because the State had not put the chastity of the prosecutrix in issue, to which ruling of the court an exception was saved. Bearing upon this particular question, appellant requested instruction No. 5, which was refused by the court, to which ruling appellant also saved an exception. Appellant\u2019s requested instruction No. 5 is as follows:\n\u201c\"While it would be no defense which would justify or excuse the defendant if other men- had been criminally intimate with the prosecuting witness, this fact, if you should find it to be a fact, should be considered as it might tend to discredit or impeach the testimony of the prosecuting witness and render her unworthy of belief.\u201d\nThe court also ruled that, if appellant interrogated the prosecuting witness in reference to specific acts of intercourse with other men. upon cross-examination for the purpose of discrediting her, he would be bound by her answers, to which ruling an exception was saved. The court gave a number of instructions to which general objections were made and exceptions saved by appellant.\nThe refusal of the trial court to permit appellant to show by other witnesses specific acts of immorality of the prosecuting witness was correct. Her chastity was not involved in the charge, and such proof would not have been responsive to the issue. Pleasant v. State, 15 Ark. 624; Plunkett v. State, 72 Ark. 409; Renfroe v. State, 84 Ark. 16; Peters v. State, 103 Ark. 119.\nIt is not admissible as affecting the credibility of the prosecuting witness because it related to matters collateral to the issue. McAlister v. State, 99 Ark. 604.\nThe holding of the trial court to the effect that appellant would be bound by the answers of the prosecuting witness on cross-examination with reference to specific acts of intercourse with other men was correct. The questions and answers related to collateral matters. This court held in the case of McAlister v. State, supra (quoting syllabus): \u201cWhile it is proper to permit a witness to be asked as to specific acts affecting his credibility, yet, if such matters are collateral to the issue, he cannot, as to his answer, be subsequently .contradicted by the party putting the question.\u201d The refusal of the court to give appellant\u2019s requested instruction No. 5 did not constitute reversible error because it was abstract. There was no evidence in the record upon which to base the instruction.\nDuring the progress of the trial, the prosecuting attorney, over the objection and exception of the appellant, was permitted to say: \u201cI remember Judge Lake, in Howard County,' stating there that a girl had been seduced, and he was representing the State in the case, and claimed it only happened one time, and that standing up, and she and the boy living in the same community, and it was never repeated again, and the jury believed him.\u201d Judge Lake, while making his argument in defense of appellant, made some remarks tending to show the improbability of sexual relations having occurred between appellant and the prosecuting witness as testified to by her. These remarks related to matters outside of the record. The statement made by the prosecuting attorney was an attempt to answer these remarks. The error, therefore, if any, was invited error.\nThe prosecuting attorney was also permitted, over the objection and exception of the appellant, to say to the jury that \u2018 \u2018 the jurymen are the ones that enforce the law, 'and if the people know the law is not enforced, the law is going to be violated.\u201d We do not think error was committed in permitting the prosecuting attorney to make the statement. It was ruled in the case of McElroy v. State, 106 Ark. 131, that \u201cprosecuting attorneys have a right to appeal to the jury to do its duty in the punishment of heinous crimes.\u201d The statement simply emphasized the necessity of enforcing the law if it had been violated.\nWe have carefully examined the several instructions given by the court, and are unable to discover any reversible error in them. No. 1 defined the crime for which appellant was indicted in accordance with section 2720 of Crawford & Moses\u2019 Digest, and, in substance, instructed that the jury should convict appellant if convinced beyond a reasonable doubt that he had sexual intercourse with the prosecuting witness in the county within three years before the filing of the indictment. Instruction No. 2 announces the correct rule of law relative to the credibility of witnesses. No. 4 gave a proper definition of the term \u201creasonable doubt.\u201d Instruction No. 3 instructed on the credibility of appellant, who testified in his own behalf. While the practice of declaring the rule of law relative to the credibility of an accused separate from other witnesses is not commended, the court has ruled that it is not reversible error to do so. Vaughan v. State, 58 Ark. 353.\nThe judgment is affirmed.", "type": "majority", "author": "Humphreys, J." } ], "attorneys": [ "Lake & Lake, for appellant.", "J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee." ], "corrections": "", "head_matter": "Davis v. State.\nOpinion delivered November 14, 1921.\n1. Rape and carnal abuse \u2014 evidence op unchastity op prosecutrix. \u2014 Upon a prosecution for carnal abuse, it was not competent for defendant to prove that the prosecuting witness had had sexual intercourse with some person other than defendant, as her chastity was not involved in the charge.\n2. Witnesses \u2014 impeachment as to collateral matter. \u2014 Evidence of specific instances of immorality of the prosecuting witness in a prosecution for carnal abuse is not admissible as affecting her credibility, because it relates to matters collateral to this issue.\n3. Witnesses \u2014 impeachment as to collateral matter. \u2014 While it is proper to permit a witness to be asked as to specific acts affecting his credibility, yet, if such matters are collateral to the issue, he can not, as to his answer, be contradicted subsequently by the party putting the question.\n4. . Criminal law \u2014 abstract instructions. \u2014 Where there was no evidence upon which to base an instruction as to credibility of the prosecutrix in a prosecution lor carnal aouse, there was no error in refusing such instruction.\n5. Criminal law \u2014 invited error. \u2014 Where defendant\u2019s attorney went out o\u00ed tne recora in making a certain argument, a statement by the prosecuting attorney in reply that defendant\u2019s attorney had previously taken a different position was invited error.\n6. Criminal law \u2014 argument of attorney. \u2014 It was not error in a criminal case to permit tne prosecuting attorney to say to the jury that \u201cthe jurymen are the ones that enforce the law; and if the people know the law is not enforced, the law is going to be violated.\u201d\n7. Criminal law \u2014 instruction\u2014credibility of accused. \u2014 While the practice of declaring the law relative to the credibility of an accused separate from that of the other witnesses is not commended, it is not reversible error.\nAppeal from Sevier Circuit Court; James 8. Steel, Judge;\naffirmed.\nLake & Lake, for appellant.\nJ. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.\nInstruction 1 given by the court, correctly declared the law. C. & M. Dig. \u00a7 2720. Its instructions 2, on the credibility, of witnesses, and 3, relative to the credibility of the appellant as a witness, were correct. This court will not reverse because the credibility of the defendant is made the subject of a separate instruction.\nThere was no proof on which to base instruction 5 requested by appellant. It was not error to refuse it. 21 Ark. 69; 23 Id. 731; 217 S. W. (Ark.) 779.\nInstructions should not be based on rejected testimony. 14 Ark. 286; 21 Id. 370; 23 Id. 101. The reputation for chastity of the female is not involved in a prosecution for carnal abuse. 15 Ark. 624; 72 Id. 409; 103 Id. 119.\nEvidence of specific acts of immorality of the prosecuting witness was not competent; it was in no sense a defense against the charge. 72 Ark. 409; 15 Id. 624; 84 Id. 16; 103 Id. 119.\nThere was no error in the argument. If so, it was invited. Moreover, appellant did not request its exclusion. 84 Ark. 128. Prosecuting attorneys have the right to appeal to the jury to do its duty. 106 Ark. 131." }, "file_name": "0500-01", "first_page_order": 526, "last_page_order": 530 }