{ "id": 1369399, "name": "Whittaker v. State", "name_abbreviation": "Whittaker v. State", "decision_date": "1926-09-27", "docket_number": "", "first_page": "762", "last_page": "768", "citations": [ { "type": "official", "cite": "171 Ark. 762" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "170 S. W. 80", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "114 Ark. 393", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536335 ], "opinion_index": 0, "case_paths": [ "/ark/114/0393-01" ] }, { "cite": "225 S. W. 308", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "146 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1585019 ], "opinion_index": 0, "case_paths": [ "/ark/146/0201-01" ] }, { "cite": "234 S. W. 636", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "150 Ark. 215", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1367926 ], "opinion_index": 0, "case_paths": [ "/ark/150/0215-01" ] }, { "cite": "239 S. W. 373", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "153 Ark. 40", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362315 ], "opinion_index": 0, "case_paths": [ "/ark/153/0040-01" ] }, { "cite": "255 S. W. 31", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "160 Ark. 531", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "256 S. W. 73", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "161 Ark. 278", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1388569 ], "opinion_index": 0, "case_paths": [ "/ark/161/0278-01" ] }, { "cite": "258 S. W. 995", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "162 Ark. 530", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1385525 ], "opinion_index": 0, "case_paths": [ "/ark/162/0530-01" ] }, { "cite": "259 S. W. 394", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "163 Ark. 129", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1383872 ], "opinion_index": 0, "case_paths": [ "/ark/163/0129-01" ] }, { "cite": "266 S. W. 939", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "167 Ark. 54", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1377006 ], "opinion_index": 0, "case_paths": [ "/ark/167/0054-01" ] }, { "cite": "270 S. W. 945", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "168 Ark. 396", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722295 ], "opinion_index": 0, "case_paths": [ "/ark/168/0396-01" ] }, { "cite": "275 S. W. 659", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "169 Ark. 332", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1373980 ], "opinion_index": 0, "case_paths": [ "/ark/169/0332-01" ] }, { "cite": "276 S. W. 1004", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "169 Ark. 708", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1373926 ], "opinion_index": 0, "case_paths": [ "/ark/169/0708-01" ] }, { "cite": "155 Ark. 443", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1360467 ], "opinion_index": 0, "case_paths": [ "/ark/155/0443-01" ] }, { "cite": "212 S. W. 567", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "138 Ark. 465", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1566987 ], "opinion_index": 0, "case_paths": [ "/ark/138/0465-01" ] }, { "cite": "195 S. W. 5", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 0 }, { "cite": "128 Ark. 565", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1581873 ], "opinion_index": 0, "case_paths": [ "/ark/128/0565-01" ] }, { "cite": "99 Ark. 604", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1314523 ], "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ark/99/0604-01" ] }, { "cite": "42 N. Y. 270", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 504984 ], "opinion_index": 0, "case_paths": [ "/ny/42/0270-01" ] }, { "cite": "14 S. W. 41", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "53 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911678 ], "opinion_index": 0, "case_paths": [ "/ark/53/0387-01" ] } ], "analysis": { "cardinality": 606, "char_count": 11950, "ocr_confidence": 0.51, "pagerank": { "raw": 5.219840170688146e-07, "percentile": 0.9407687475215737 }, "sha256": "ac83f9ed4a5319c219e5e40c18cb062f34eac130b459deaf36d0450bf6d0245d", "simhash": "1:45d7c9f51638ac83", "word_count": 2013 }, "last_updated": "2023-07-14T23:00:35.231048+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Whittaker v. State." ], "opinions": [ { "text": "Wood, J.,\nAppellant was. convicted in the Monroe Circuit Court of the crime of rape, and sentenced by the judgment of the court to imprisonment in the State Penitentiary for life. . The. judgment was, based upon, the verdict returned by the jury finding appellant guilty and fixing the term of imprisonment in the State Penitentiary for life.\nThe alleged victim of appellant was one Ruth Kemnson, who testified, giving the circumstances. of the alleged assault in detail, which we deem it unnecessary to set forth, inasmuch as we are. convinced that, the, testimony of the-prosecutrix and other witnesses for the State' was amply sufficient to sustain the verdict. After detailing the facts and circumstances of the assault, the prosr ecutrix concludes her testimony by saying that he (the appellant) \u201cgrabbed me and jerked me across the road, slammed me down on the ground, and said, \u2018Lay down here, or I will kill you/\u2019 He held my arms, forced my legs open, wrestled with me until' he penetrated me, actually raped me as brutally and harshly as he could.0 Appellant,' in his testimony, denied positively th\u00e1t he assaulted the woman, and there was testimony of another witness in his behalf tending to corroborate his testimony/ But the jury were the sole judges of the evidence and of the credibility of the witnesses, and it appears' from their verdict that they believed .the testimony of the prosecutrix rather than that of the appellant and his witness.\nThe court, over the objection of appellant, permitted the attorneys for the State to ask the appellant, on cross-examination, the following questions: \u201cQ. What did you do to that Raymond girl about four or five years ago ? A. I didn\u2019t do anything to the Raymond girl. ' Q. Didn\u2019t you rape her? A. No sir. Q. Didn\u2019t hurt her? A. No sir. Q. What about Tennessee Sawyer, what did you do to her?\u201d\nThe appellant objected to the questions, and the attorney for the prosecution stated: \u201cI want to show his immoral tendency. Court: Do you mean to ask by that question if he assaulted this party named with the intention of having intercourse with her? The attorney for the State: The Ramsey girl, yes sir. Q. What did you do to Tennessee Sawyer? A. She got shot accidentally. Q. Who got shot? A. Tennessee. Q. Yoii shot her, didn\u2019t you? A. Yes sir.\u201d\nHere the attorney for the appellant again objected to the questions and answers, and asked the court to exclude the same from the jury. The court stated: \u201cAny evidence establishing or connecting him with immoral crimes of a serious nature would shed light on his reputation. \u2019 \u2019\nThe attorney for the prosecution stated that the purpose of the questions was to test his credibility.\nThe court refused to exclude the testimony, to which ruling the appellant duly excepted.\nThe. prosecuting attorney further interrogated: the appellant, on cross-examination, as follows: \u201cQ. You know the Ramsey girl that lived over on the Mr. Bateman place two or three years ago? A. No sir. Q. Do. you know a family named Ramsey? I will ask you if you didn\u2019t rape a girl there, and you and your daddy paid them some money and kept it down? A. No sir.\u201d\nThe court further permitted the prosecuting attorney to ask the appellant, on cross-examination, the following questions: \u201cQ. Didn\u2019t you shoot this girl? A. Yes sir. Q. Didn\u2019t you shoot another negro last fall? A. Yes sir.\u201d\nThe court stated that the only purpose of the testimony was to aid the jury in determining the degree of .credit to attach to appellant\u2019s testimony, and further stated that this testimony was not evidence of his guilt of this particular charge. .\nThere was no error in the rulings of the court. The testimony, as shown by the statement, of the court in making its rulings, was admitted for the purpose of testing the credibility of the witness. The questions propounded to the appellant, and his answers thereto, were proper when limited, as the court ruled, to the one purpose of testing the credibility of the appellant as . a witness. \u2019 ; . .\nIn the leading case of Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41, this court, through Mr. Justice Hemingway, approved the general doctrine announced by the Supreme Court of Michigan in Wilbur v. Flood, as follows: \u201cIt has always been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon Ms character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or. should prevent any needless or wanton abuse of the power..; But, within this discretion, we think a witness may be asked concerning all antecedents which are really sigMficant, and which will explain his credibility.\u201d\nThe \"court also cited and quoted with approval from Real v. People, 42 N. Y. 270, as follows: \u201cA witness, upon cross-examination, may be asked whether he has been in jail,' the penitentiary or State prison, or ,any other place that would tend to impair his credibility, and how; much of his life he has passed in such places.\u201d\nOur own court, has steadily adhered to the rule announced in Hollingsworth v. State, supra, and the following cases may be examined as authority on this subject: McAlister v. State, 99 Ark. 604, 139. S. W. 684; Turner v. State, 128 Ark. 565, 195 S. W. 5; Webb v. State, 138 Ark. 465-469, 212 S. W. 567; Turner v. State, 155 Ark. 443-448, 195 S. W. 5; Tong v. State, 169 Ark. 708-712, 276 S. W. 1004; Mays v. State, 169 Ark. 332-334, 275 S. W. 659; Ogburn v. State, 168 Ark. 396-400, 270 S. W. 945; Wray v. State, 167 Ark. 54-57, 266 S. W. 939; Lytle v. 163 Ark. 129-131, 259 S. W. 394; Middleton v. State, 162 Ark. 530-539, 258 S. W. 995; Sweeney V. State, 161 Ark. 278-286, 256 S. W. 73; Bank of Hatfield v. Chatham, 160 Ark. 531-541, 255 S. W. 31; Turner v. State, 153 Ark. 40-46, 239 S. W. 373; Shinn v. State, 150 Ark. 215-220, 234 S. W. 636; Pearrow v. State, 146 Ark. 201-206, 225 S. W. 308; Paxton v. State, 114 Ark. 393-396, 170 S. W. 80.\nIt follows, from the doctrine of the above- cases, that the court did not err in permitting the attorneys for the State, in the cross-examination of the appellant, to propound the questions set forth above, and did not err in permitting the answears thereto. The State was bound by the answers of the appellant :to the questions, and these answers entirely exonerated the appellant from any culpability or any immoral or reprehensible conduct in connection'with the particular instances designated by the attorneys for the .State. \u2018 \u2018 Therefore no prejudice could have resulted to appellant from the cross-examination to which objection is urged.\nThe court instructed the jury'as follows: \u201c1. The defendant in this case,'gentlemen of the jury, is charged.with the crime of rape. Rape is defined by the statute as the carnal knowledge of a female, forcibly and against her will. In order to constitute guilt, under the indictment laid here against the' defendant, it is incumbent' upon the' State to prove beyond a reasonable doubt the following allegations in this indictment: first, that this defendant, some time prior to the return of-this indictment, and in Monroe County, Arkansas, unlawfully, feloniously and forcibly, and against the will of the prosecuting witness, had carnal knowledge of. her person by penetrating her privates. - It must be done, as stated, forcibly and against her will and without her consent. If these allegations are proved, and that beyond a reasonable doubt, there is but one form of verdict that would be-responsive, 'that -is, guilty as charged in the indictment,- the punishment of which is death in the electric chairs or life- imprisonmerit. Under the evidence in this, case you .would .have to find, the defendant either guilty of-rape or-not guilty of. any offense; there is no evidence, here \u00a1that'would .authorize .this court in submitting any other. offense whatever than that laid in the indictment, whichiis rape.\nThe appellant objected generally to the giving of this-instruction, and also specifically, \u201cfor the reason that\u2019 the' court should not have told the jury that they could only find defendant guilty of rape; but should have told it that he could be \u2019guilty of assault- with intent to rape.\u201d\nAmong other prayers for instruction by the appellant was the following, which the court gave: \u201cThe jury are instructed that, although you may believe from the evidence that the defendant has bee'n guilty of assault and battery, or. assault with intent- to-commit, rape, or any other offense, still you cannot convict defendant unless you believe that he is guilty, and that beyond a reasonable doubt, of the, crime with .which he is charged, in the indictment.\u201d\nThe \"court did not' err in instructing the jury that, under the evidence in the'c\u00e1se, they would have to find the defendant' either .guilty Of\" rape or not guilty of'any off\u00e9is^J. The appellant did not' present any prayer (except the. aboye), for instruction on the.offense of an assault with intent to commit rape, which offense is embraced.,in an-\u00a1indictment for rape. On the contrary, the prayer for-the instruction supra, on the part of appellant,'.which the -court gave, was to the eff\u00e9ct that the appellant could not be convicted' under this indictment', although \u2019 the jury.\u2019mightbelieve, finder the evidence,'that he was guilty .of an assault with intent to commit rape.- Therefore appellantis certainly, in no attitude to- complain of dhe- ruling of the .courffin giving instruction No. 1 supra. If-the ruling was error, the appellant waived it by the prayer for the instruction which he asked, and which the court gave. Moreover, there was no testimony to justify the court in giving an instruction allowing the jury to return a verdict for an assault with intent to' commit rape. The testimony of the prosecutrix-certainly tended to prove that the appellant was guilty of the crime of rape, and nothing less. On the other hand, the testimony of the appellant-himself tended to prove that the appellant was not guilty of any offense. Therefore the court correctly instructed the jury that, under the testimony in the case, they should either find appellant guilty of the crime of rape as charged, or they should acquit him altogether.\nThere is no reversible error in the record, and the judgment is therefore affirmed.", "type": "majority", "author": "Wood, J.," } ], "attorneys": [ "Bogle '<& Sharp, for appellant.", "H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee." ], "corrections": "", "head_matter": "Whittaker v. State.\nOpinion delivered September 27, 1926.\n1. . Rape \u2014 sufficiency of evidence. \u2014 Evidence held to sustain a conviction of rap\u00e9.\n-2. Criminal law \u2014 province of jury. \u2014 The jury are the judges of the evidence and of the credibility of witnesses.\n3. Witnesses \u2014 impeachment of accused on cross-examination.\u2014 In a prosecution for rape, it was proper to permit, defendant to be cross-examined as to other offenses, where such testimony was limited by the court\u2019s rulings to the purpose of testing defendant\u2019s credibility.\n4. Criminal law \u2014 cross-examination of defendant \u2014 harmless error.- \u2014 In a prosecution for rape, cross-examination of defendant as to other offenses held not prejudicial, where his answers entirely exonerated him from any culpability or any immoral or reprehensible conduct in connection with the particular matters about which he was examined.\n5. Criminal law \u2014 invited error. \u2014 If it was error to instruct the jury either to find the defendant guilty of rape or acquit him, instead of submitting the crime of' assault with intent to rape, defendant cannot complain where he asked an instruction to the same effect.\n6. Rape \u2014 instruction.\u2014An instruction either to find defendant guilty of rape or not guilty of any offense was not- erroneous where the testimony of the prosecutrix tended to prove that defendant was guilty of rape and defendant\u2019s testimony tended to prove that he was riot guilty of any offense.\nAppeal from Monroe Circnit Court; George W. Clark, Judge;\naffirmed.-\nBogle '<& Sharp, for appellant.\nH. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee." }, "file_name": "0762-01", "first_page_order": 778, "last_page_order": 784 }