{
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  "name": "Bailey v. State",
  "name_abbreviation": "Bailey v. State",
  "decision_date": "1949-04-11",
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  "provenance": {
    "date_added": "2019-08-29",
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    "parties": [
      "Bailey v. State."
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    "opinions": [
      {
        "text": "Griffin Smith, Chief Justice.\nThe verdict was: \u201cWe, the jury, find . . . John Bailey guilty of rape . . . and assess his punishment at life imprisonment in the penitentiary.\u201d\nFrom a judgment responsive to the verdict the defendant\u2019s appeal seeks reversal on four grounds: (1) The jury was misled by the Court\u2019s reply to questions propounded regarding the right to recommend clemency. (2) A failure to instruct \u2022 on lower degrees of crime, the only affirmative evidence showing rape, was prejudicial. (3) A preliminary hearing'was denied, hence the information should have been quashed. (4) Systematic exclusion of women from jury panels was a denial of due process.\nThe facts present a sordid picture. Appellant, a married man with one child in esse and another expectant, went with Lee Doyle to a place where beer w\u00e1s sold. Doyle told Bailey he had a \u201cdate\u201d with a girl whom he named. Doyle, presumptively at Bailey\u2019s request, telephoned his girl friend and asked that she procure a companion for Bailey. As a result of such overtures, Bailey\u2019s companion was virtually held prisoner for the night and repeatedly raped.\nAfter patronizing places of incidental amusement the four, in Bailey\u2019s car, drove to Boyle Park. During a short stop Doyle and his companion got out and walked to the rear. While they were talking and smoking cigarettes Bailey suddenly drove away, and was not seen again by Doyle that night.\nThe prosecuting witness, 20 years of age, employed by a Little Rock real estate firm, testified that it was after eleven o\u2019clock when the Boyle Park stop was made, on a dirt or gravel road. Shortly after Doyle and his companion got out of the car, Bailey became aggressive, but discontinued the struggle when it seemed likely the encounter might attract attention. Testimony on this phase of the assault was: \u201cI screamed and screamed so much that he got up and said, \u2018I\u2019m sorry: I didn\u2019t know yon were a nice girl. Come on and we will find the other couple. \u2019 \u2019 \u2019 With this comment Bailey drove off, but the prosecuting witness did not know where they went. There were no houses in sight, no lights, or people. The witness then said:\n\u201cHe stopped and didn\u2019t waste any time. He dragged me out of the car, threw me on the ground [on a blanket] and attacked me.\u201d\nIt is not necessary to repeat the details, which established completed rape. The witness said she kept screaming, and that a car approached; whereupon Bailey jumped up and said, \u2018Come on, let\u2019s get hack in the car.\u2019 Instead of complying with the request, the unfortunate girl ran to the other car and begged for protection. The occupants proved to be Willie Ford and (Miss) Billy G-arrin, who explained while testifying that in driving within Boyle Park they came to a dead-end road. In making a \u201cU\u201d turn a girl was heard calling for help. Ford was a paroled convict who worked for a bottling company. When the girl with Bailey begged.to he taken to North Little Rock, Ford declined through fear that his parole would be revoked. The prosecuting witness got in Ford\u2019s car and talked with Ford\u2019s companion, revealing part of the sordid story. Ford, however, persisted in his refusal to give aid. The prosecuting witness, who in the meantime had been taken by Bailey to his own car, begged the couple to follow them to town, and this they promised to do. En route Bailey drove so rapidly that contact was lost. Ford\u2019s companion stopped and telephoned officers, and Ford later made a report.\nThe prosecuting witness, in explaining Ford\u2019s refusal to assist, testified that Bailey \u201cdragged her\u201d from the rear seat of Ford\u2019s car and forcibly returned her to his own conveyance. Ford told her he had taken Bailey\u2019s license number, that he would follow them, and if anything happened he would telephone the Sheriff: \u2014 \u2022 \u201cThen he drove awfully fast an awfully long way to where he stopped again, and pulled off the highway onto a dirt road in the woods. Before he had completely stopped I jumped out of the car and ran a distance equal to half a block before he caught me and dragged me back. \u2019 \u2019 The transaction at that time was attempt to rape, but \u201c . . . he kept cursing me in the filthiest language he could [think of].\u201d Other attempts were made.\nIn these circumstances, characterized by intermittent attempts and specific acts of penetration, the night was spent. At various times Bailey appeared to be sleeping, but when the prosecuting witness attempted to escape he would grab her. Shortly after daylight Bailey drove the girl home. She immediately reported to her mother and sister.\nPhysical examination by a physician whose qualifications were not questioned revealed bruises and scratches on the body of the prosecuting witness, whose sex organs were bleeding. The hymen was lacerated, indicating virginity just prior to the transaction charged in the information. The Doctor testified that \u201cfrom all the information I could obtain, the female organs had been entered.\u201d\nThe essential facts have been set out because of the contention that the jury should have been charged on attempted rape. The defendant did not testify.\nFirst \u2014 Was the Jury Misled as to Clemency Rights f \u2014-After deliberating for approximately fifteen minutes, the jury re-entered the court room and the foreman said: \u201cWe would like to know if we can recommend clemency in this and leave it up to the Court?\u201d Judge Fulk replied: \u201cIt is the law that the jury may recommend clemency, but it is not the law that the Court .has to grant it.\u201d The Foreman then said: \u201cWe wondered whether we might recommend it.\u201d Judge Fulk answered: \u201cYou have the power to make that recommendation, . . . but it is not binding on the Court, and I don\u2019t know how the Court would take it. \u2019 \u2019 Then the Foreman remarked, \u201cAll right, we understand.\u201d\nCounsel for appellant argues that the jurors were \u201cunquestionably\u201d led to believe that they might hope for clemency, even with a finding of guilt. But the jury could have exercised its own discretion to make the recommendation it thought proper. It is just as logical to believe that the Court\u2019s answer did not carry an inference of possible lenience, hence the fact-finders avoided the death risk and assessed life imprisonment. This is mere speculation, devoid of factual support, as is appellant\u2019s theory that the jury was misinformed. The Court correctly stated the law. A defendant cannot predicate. error upon the want of it.\nSecond \u2014 Failure to Instruct on \u201cAttempt\u201d and Assault. \u2014 In defining rape the jury was told that \u201cThere must be a penetration of the body; there must be force; and it must have been against the will of the female.\u201d To this instruction the Court added: \u201cThe burden of proof is upon the State to show these things to your satisfaction beyond a reasonable doubt, otherwise you would have to discharge the defendant.\u201d\nAppellant insists he was entitled to his Requested Instructions 13 and 14, shown in the margin. Conversely, appellee relies in part upon Whittaker v. State, 171 Ark. 762, 286 S. W. 937, where' it was held that the defendant could not complain of an instruction that he should be convicted of rape or acquitted; the defendant having requested an instruction to the same effect; nor, says the opinion, was it error to give the instruction complained of when testimony by the prosecutrix tended to prove that the accused was guilty of rape, and the defendant\u2019s testimony was to the effect that he was innocent of any crime.\nIn the case at bar there was testimony of conduct constituting rape, and in addition there were repeated attempts. An assault with intent to commit rape is included in the charge of rape. Pratt v. State, 51 Ark. 167, 10 S. W. 233. Chief Justice Cockrill\u2019s language in the Pratt case was quoted in a more recent opinion rejecting the appellant\u2019s argument that he suffered prejudice because when tried for rape and convicted of an attempt, the jury was instructed on the lesser degree. It was the defendant\u2019s contention on appeal that he should have been convicted of rape, or acquitted.\nOur statute defines rape as the carnal knowledge of a.female, forcibly and against her will. Pope\u2019s Digest, \u00a7 3403, Ark. Stats. (1947), \u00a7 41-3401. Other statutes define accessory to rape, administration of potion to a female, carnal abuse, abduction, seduction, and specific sex crimes. All are collected in a chapter of the Digests.\nIt was said by Chief Justice Walker in Cameron v. State, 13 Ark. 712, that upon an indictment for a felony' the accused may be convicted of a misdemeanor \u201cwhere both offenses belong to the .same generic class, where the commission of the higher may involve the commission of the lower offense and the indictment for the higher offense contains all the substantive allegations necessary to let in proof of the misdemeanor,\u201d although at common law the rule was different.\nAssuming, without deciding, that conviction for assault and battery can be upheld where the indictment or information charges rape, (the transactions not being generically related) still,, the broad range of proof brought into play and the possibility of capricious conduct by fact-finders in reducing a serious charge to something relatively unimportant \u2014 these considerations require that Courts carefully scrutinize instructions that \u25a0might be seized upon by either side to emphasize inferences that at most are vague. Hence we have the rule that one who objects to an instruction not inherently wrong cannot complain of prejudice unless the particular vice is pointed to or a correct instruction is offered.\nHere the defendant\u2019s Requested Instruction No. 13 would have authorized a conviction for assault and battery, \u201c . . . which is the unlawful striking or beating of another person with the intent to inflict an injury, and fixing his punishment at not to exceed $200. \u2019 \u2019\nThe statutory definition of assault and battery does not contain the word \u201cintent.\u201d Pope\u2019s Digest, \u00a7 2978, Ark. Stats. (1947), \u00a7 41-603. It is the unlawful \u201cstriking or beating of the person of another\u201d that the statute denounces, and the intent to inflict injury is judicial construction. But a proviso supplied by Act of Jan. 6, 1857, p. 48, says that the section shall not apply to assault and batteries of an aggravated character \u201cin which the fine under existing laws could not be as low as ten dollars.\u201d Pope\u2019s Digest omits the reference to \u201cfines as low as ten dollars,\u201d and reads, \u201cProvided, this section shall not be construed to apply to assaults and batteries of an aggravated character.\u201d Other statutes, such as \u00a7 2960 of Pope\u2019s Digest, dealing with assault with a deadly weapon, use the expression, \u201cwith the intent to inflict upon the person of another a bodily injury.\u201d See Watkins v. State, 179 Ark. 776, 18 S. W. 2d 343.\nMr. Justice Wood, dealing with assault and battery in Moreland v. State, 125 Ark. 24, 188 S. W. 1, L. R. A., 1917A, 140, wrote the Court\u2019s opinion sustaining the conviction of the appellant, a family physician who kissed a married woman without her consent. He quoted with approval from Clark\u2019s Criminal Law, that \u201cThe least or slightest wrongful and unlawful touching of the person of another is an assault\u201d; and, while an intent to do violence is an essential element, the degree is immaterial. The violence frowned on by the cases where assault is involved is, as Judge Wood pointed out, \u201cthe slightest unlawful touching of the person of another.\u201d The intent to inflict a traumatic injury is not an ingredient. The mere \u201claying on of hands\u201d is sufficient.\nOur view is that in the circumstances of this case, where all the testimony tended to show rape and attempted rape, and where the use of physical force was a means of accomplishing sexual desires, the Court was not required to instruct that the crime of assault and battery could not be established unless the \u201cintent to inflict an injury\u201d were shown; nor was the statement that a fine of but $200 could be assessed a correct declaration of the law without adding the proviso relating to assaults of an aggravated character. Requested Instruction No. 14 was so closely tied in with No. 13 that rejection of No. 13 \u2014 which alone contained the definition\u2014 rendered No. 14 unacceptable.\nThird \u2014 Preliminary Hearing. \u2014 The defendant\u2019s preliminary hearing, set for August 11, was continued until August 13, arrest having been made without a warrant. On August 12th counsel for Bailey filed with the Clerk of the Circuit Court his motion to quash the information, alleging a denial of due process through failure to provide a preliminary hearing. We have repeatedly held that a defendant.is in lawful custody when an information has been properly filed with detention under it. The writ of habeas corpus is at all times available to one illegally held.\nFourth \u2014 Systematic Exclusion of Women From Jury Panels. \u2014 It was stipulated that in respect of the First Division of Pulaski Circuit Court, no woman had been selected by the Commissioners since 1925.\nBy Amendment No. 8 to the Constitution of Arkansas qualifications of electors were fixed and equal suffrage conferred, but \u201cwomen shall not be compelled to serve on juries.\u201d See Act 402 of 1921; Pope\u2019s Digest, \u00a7\u00a7 8302-3-4; Ark. Stats. (1947), \u00a7 39-112, 113, 114. The Constitutional proviso and statute sections have been construed as a privilege women may claim \u2014 declarations of public policy pursuant to wbicb it has not been thought that jury commissioners abused their discretion when there was failure to include women on the lists of those summoned.\nCriminal court trials often involve testimony of the foulest kind, and they sometimes require consideration of indecent conduct, the use of filthy and loathsome words, references to intimate sex relationships, and other elements that would prove humiliating, embarrassing and degrading to a lady.\nUnder recognized requirements in this State, racial distinctions are disregarded in jury service. More often than not the fact-finders are not permitted to separate after a case has been submitted. Standards of deportment between men and women, and individual conceptions of personal propriety enter into the transactions; and while of course the State possesses power and could through an all-inclusive constitutional mandate say that in jury service there shall be no distinction between sexes, and while the right of Commissioners to call women unquestionably exists, it has not been thought that the policy constitutionally declared in 1920 was of a character depriving Commissioners of the discretion exercised in cases such as that with which we are dealing.\nIt is suggested that decisions of the Supreme Court of the United States are conclusive of the issue and bound the trial Court to quash the panel. Ballard et al. v. United States, 329 U. S. 187, 67 S. Ct. 261, 91 L. Ed. 181. Effect of that case is to say that due process failed when the defendant (a female) was tried by a California jury of men, a showing having been made that women had been systematically excluded from jury service. The decision did not rest upon mere difference of sex. The Ballard case, however, was in Federal Court, and it is noteworthy that California\u2019s constitution does not carry a savings clause in favor of women.\nIn exercising its supervisory power over the administration o\u00ed justice in the Federal Courts, the U. S. Supreme Court has said that \u201c . .\u2022 . the purposeful and systematic exclusion of women\u201d by those charged with the duty of calling jurors for the Federal District Courts in states where jury duty is imposed alike upon the two sexes, relieves the defendant of the burden of proving prejudice in a particular case; but this rule has not been extended to state court trials \u2014 and certainly there are no expressions indicating that the discretion permitted commissioners under a State constitution such as ours would be controlled without a showing of conduct resulting in prejudice. See State v. Taylor, 356 Mo. 1216, 205 S. W. 2d 734.\nIn Fay v. New York, 332 U. S. 261, 91 L. Ed. 2043, 67 S. Ct. 1613, a state prosecution was brought to the U. S. Supreme Court by certiorari. The opinion was written by Mr. Justice Jackson, who said that proof that only those women who volunteered or were suggested as willing to serve were subpoenaed for examination for service \u201cwas insufficient to show that women were intentionally and deliberately excluded, bearing in mind that New York gives women the privilege to serve, but does not impose a duty\u201d. A significant statement by Mr. Justice Jackson is:\n\u201cWhile this case does not involve any question as to the exclusion of Negroes or any other race, the defendants rely largely upon a series of decisions in which this Court has set aside State Court convictions of Negroes because Negroes were purposefully and completely excluded from the jury. However, because of the long history of unhappy relations between the two races, Congress has put these cases in a class by themselves. The Fourteenth Amendment, in addition to due process and equal protection clauses, declares that \u2018The Congress shall have power to enforce, by appropriate legislation, the provisions of this article\u2019. So empowered, the Congress on March 1, 1875, enacted that \u2018no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit -juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude\u2019; and made it a crime for any officer to exclude any citizen on those grounds. 18 Stat. 336-37, 8 U. S. C. Sec. 44. For us the majestic generalities of the Fourteenth Amendment are reduced to a concrete statutory command when cases involve race or color which is wanting in every other case of alleged discrimination. ... It is significant that this 'Court never has interfered with the composition of State Court juries except in cases where the guidance of Congress was applicable, . . . [hence] one who would have the judiciary intervene on ground, not covered by statute must comply with the exacting requirements of proving clearly that in his own case the procedure has gone so far afield that its results are a denial of equal protection or due process\u201d.\n\u2019We think the inference deducible from the Fay case is that where a State does not impose upon women as a class the inescapable duty of jury service,- a defendant who complains that due process was denied, or that he was not afforded the equal protection contemplated by the Fourteenth Amendment, must show something more than continuing failure of jury commissioners to call women for services in a division of the Court where the innate refinement peculiar to women would be assailed with verbal expressions, gestures, conversations and demonstrations from which most would recoil.\nAttention is called to the fact that the stipulation upon which appellant relies does not say that women have been systematically excluded from jury service. The court, seeking to express what it thought was intended, remarked that \u201cThe stipulation relates to defendant\u2019s motion to quash the panel because the jury commissioners have habitually excluded women from jury service solely because they are women\u201d.\nThe motion did not allege they had been \u201csystematically\u201d excluded. Our decision, however, does not rest upon this technical refinement; but rather upon the substantial ground that the record does not show that the defendant failed to receive a fair trial at the hands of a competent jury.\nAffirmed.\u2019\nRequested Instruction No. 13: \u201c. . . Under the information in this case you may find the defendant guilty of rape or you may find the defendant guilty of any of the offenses of assault which are included in the information. If you find the defendant guilty of assault with intent to commit rape, you may fix his punishment at any time not less than three nor more than twenty-one years. On the ather hand, if you have a reasonable doubt of whether it is rap\u00e9 or assault with intent to commit rape, you will find the defendant guilty of the lesser offense. If you do not find beyond a reasonable doubt that the defendant was guilty of either rape or assault with intent to commit a rape, [but] if you further find that the defendant committed an assault and battery on the prosecuting witness, it would be possible, under this information, if you found the evidence to justify it, to find the defendant guilty of assault and battery, which is the unlawful striking or beating of another person with the intent to inflict an injury, and fix his punishment at a fine not to exceed $200.\u201d\nRequested Instruction No. 14 would have told the jury that if it found the defendant guilty of assault and battery under the evidence, \u201cbut are not convinced beyond a reasonable doubt that he is guilty of assault to rape, it will be your duty to return a verdict for the lesser offense. Further, if you find that the evidence under the instructions of the court justify you in returning a verdict of guilty of assault to rape, as defined in these instructions, and have a reasonable doubt as to his guilt as to the charge of rape, as contained in the information, it will be your duty to give him the benefit of that doubt and return a verdict only for the lesser offense.\u201d\nAmendment No. 8, although adopted in 1920, was not so recognized until the decision in Brickhouse v. Hill was handed down, 167 Ark. 513, 268 S. W. 865, followed by the ruling in Combs v. Gray, 170 Ark. 956, 281 S. W. 918, decided April 12, 1926.",
        "type": "majority",
        "author": "Griffin Smith, Chief Justice."
      }
    ],
    "attorneys": [
      "Ross Robley and Elmer Schoggen, for appellant.",
      "Ike Murry, Attorney General and Arnold Adams, Assistant Attorney General, for appellee."
    ],
    "corrections": "",
    "head_matter": "Bailey v. State.\n4553\n219 S. W. 2d 424\nOpinion delivered April 11, 1949.\nRoss Robley and Elmer Schoggen, for appellant.\nIke Murry, Attorney General and Arnold Adams, Assistant Attorney General, for appellee."
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  "file_name": "0053-01",
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  "last_page_order": 86
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