{ "id": 1410994, "name": "Wills v. State", "name_abbreviation": "Wills v. State", "decision_date": "1936-11-16", "docket_number": "Crim. 4013", "first_page": "182", "last_page": "184", "citations": [ { "type": "official", "cite": "193 Ark. 182" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "83 S. W. (2d) 69", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "191 Ark. 102", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1418583 ], "opinion_index": 0, "case_paths": [ "/ark/191/0102-01" ] }, { "cite": "88 S. W. (2d) 82", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "191 Ark. 865", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1418559 ], "opinion_index": 0, "case_paths": [ "/ark/191/0865-01" ] }, { "cite": "78 S. W. (2d) 387", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "190 Ark. 279", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1421956 ], "opinion_index": 0, "case_paths": [ "/ark/190/0279-01" ] }, { "cite": "55 S. W. (2d) 782", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "186 Ark. 723", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725258 ], "opinion_index": 0, "case_paths": [ "/ark/186/0723-01" ] }, { "cite": "56 S. W. (2d) 182", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "186 Ark. 815", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725833 ], "opinion_index": 0, "case_paths": [ "/ark/186/0815-01" ] } ], "analysis": { "cardinality": 396, "char_count": 5302, "ocr_confidence": 0.482, "pagerank": { "raw": 1.9222317970149887e-07, "percentile": 0.7331346344902734 }, "sha256": "d50a19c721a4c9788ce9d747266dc96ad3493e3ca9ecc1c79418bf3fbe69922b", "simhash": "1:fa6f69e4b13b1453", "word_count": 946 }, "last_updated": "2023-07-14T16:27:08.157459+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Wills v. State." ], "opinions": [ { "text": "Johnson, C. J.\nThis appeal comes from a sentence to the state penitentiary, imposed by a jury in the Crawford circuit court wherein appellant, George Wills, was duly indicted for the crime of assault to rape. The most serious contention urged upon us for reversal, and the only one necessary to decide, is that the testimony adduced by the State is wholly insufficient to sustain a conviction for the crime charged. The testimony adduced by the State, as abstracted by the \u25a0 attorney-general, is as follows:\n\u201cNaomi Golden was fifteen years old. She lived at Mulberry. Appellant did not know her and she did not know him. The assault was made upon her in Van Bur\u00e9n. She had come to Van Bur\u00e9n in a truck with Fay Sikes and others to visit Fay Wise. On her way from Fay Wise\u2019s she overtook and tried to pass appellant and Gene Miller. Appellant said, .\u2018hello, baby.\u2019 She did not stop and he grabbed her and put his arms around her. They tore her shirt, invited her to go home with them and accused her of having a foul disease when she refused to go. Miller tripped her and caused her to fall into a ditch and she was later slung into the ditch, seemingly by appellant. Wills was hitting her while she was in the ditch. She did not say that Wills was not trying to have sexual intercourse with her. She had done some \u2018hollering\u2019 when knocked into the ditch and Mr. Fleming came down there.\n\u2018 \u2018 Orville Fleming testified: The boys had stopped her and were holding her and had tom her shirt. The girl started off a time or two and the boys would stop her. He spoke to Wills and Wills spoke to him. The girl would start off and the boys would stop her. One of the boys pushed the girl back and she and George fell off the embankment and Miller went away. Then the girl went to \u2018hollering.\u2019 She started up the bank and George seemingly pulled her back. He went down there and appellant had the girl down. He believed he was on top of the girl. At that time the officers came up and appellant, seeing who they were, resisted them.' He was drinking.\n\u2018 \u2018 Q. What did George do that made you think that he was going further than he did? A. She was under him. Q. She didn\u2019t make any struggle, did she? A. No, sir, she didn\u2019t, he had one hand on her shoulder and was holding her down. \u2019 \u2019\nWe agree with appellant\u2019s contention that the adduced and quoted testimony is insufficient to establish the charge of assault to rape although his conduct on the occasion of the assault is wholly indefensible and thoroughly reprehensible.\nWe have recently had occasion to define the charge of assault to rape and did so in the following language:\n\u201cIt is well settled that an assault with intent to rape is an effort to obtain sexual intercourse by force and against the will of the person assaulted, and the intent is to be ascertained from the commission of some act or acts at the time or during the progress of the assault. The force actually used need be of no specific degree or character, but comes within the meaning of the law if it is reasonably calculated to subdue and overcome; nor need it be persisted in until the assailant\u2019s design is accomplished; if the assault is actually begun and the intent can be inferred from the acts committed, the offense - is complete, notwithstanding the fact that the assailant may, for some reason, relent, and forbear from- the consummation of his purpose.\u201d Boyett v. State, 186 Ark. 815, 56 S. W. (2d) 182.\nThe gist of the charge of assault to rape is the intent to obtain sexual intercourse with the female assaulted and this intent and purpose must be made manifest by evidence adduced. The assault in the instant case was made upon one of the main thoroughfare's of the city of Van Bur\u00e9n and at a time when it was plainly observable to a number of people residing in the vicinity. The state\u2019s testimony carries none of the usual characteristics incident to rape cases, and the jury\u2019s verdict so finding rests on mere speculation and conjecture. Speculation and conjecture cannot be substituted for affirmative facts and circumstances. Magnolia Petroleum Co. v. Bell, 186 Ark. 723, 55 S. W. (2d) 782; Southwestern Gas & Elec. Co. v. May, 190 Ark. 279, 78 S. W. (2d) 387; Marathon Oil Co. v. Sowell, 191 Ark. 865, 88 S. W. (2d) 82; and Lewis v. Jackson, 191 Ark. 102, 83 S. W. (2d) 69.\nAs heretofore stated, appellant\u2019s conduct on the occasion of the assault is wholly inexcusable.- The jury\u2019s determination that he is guilty of an assault is conclusive, but its finding of the degree of assault, namely, assault to rape, is without testimony to support it. The next lowest degree in the generic class.of assault to rape is simple assault, and is defined as follows:\n\u201cAn assault is an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another.\u201d Section 2330, Crawford & Moses\u2019 Digest. The punishment is provided for in \u00a7 2332 by a fine not exceeding $100. \u25a0 , \u25a0\nAppellant will, therefore, stand convicted here of the crime of simple assault, and the punishment will be fixed at a fine of $100, the maximum provided by law.\nModified and affirmed.", "type": "majority", "author": "Johnson, C. J." } ], "attorneys": [ "Rains & Rains, for appellant.", "Carl E. Bailey, Attorney General, Guy E. Williams and J. F. Koone, Assistants, for appellee." ], "corrections": "", "head_matter": "Wills v. State.\nCrim. 4013.\nOpinion delivered November 16, 1936.\nRains & Rains, for appellant.\nCarl E. Bailey, Attorney General, Guy E. Williams and J. F. Koone, Assistants, for appellee." }, "file_name": "0182-01", "first_page_order": 200, "last_page_order": 202 }