{ "id": 1705547, "name": "Bailey v. State", "name_abbreviation": "Bailey v. State", "decision_date": "1957-05-27", "docket_number": "4866", "first_page": "889", "last_page": "898", "citations": [ { "type": "official", "cite": "227 Ark. 889" }, { "type": "parallel", "cite": "302 S.W.2d 796" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "215 Ark. 935", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464752 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/215/0935-01" ] }, { "cite": "286 S. W. 937", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "171 Ark. 762", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1369399 ], "opinion_index": 0, "case_paths": [ "/ark/171/0762-01" ] }, { "cite": "222 Ark. 504", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1652869 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/222/0504-01" ] }, { "cite": "217 Ark. 252", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718966 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/217/0252-01" ] }, { "cite": "216 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1614188 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/216/0001-01" ] }, { "cite": "222 S. W. 2d 816", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "215 Ark. 618", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464757 ], "opinion_index": 0, "case_paths": [ "/ark/215/0618-01" ] }, { "cite": "213 Ark. 863", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467123 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/213/0863-01" ] }, { "cite": "225 Ark. 809", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1642535 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/225/0809-01" ] }, { "cite": "219 Ark. 367", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609232 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/219/0367-01" ] }, { "cite": "220 Ark. 750", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1660065 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/220/0750-01" ] }, { "cite": "197 Ark. 695", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723228 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/197/0695-01" ] }, { "cite": "279 S. W. 9", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "170 Ark. 175", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1371759 ], "opinion_index": 0, "case_paths": [ "/ark/170/0175-01" ] }, { "cite": "212 U. S. 278", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5710643 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/212/0278-01" ] }, { "cite": "100 U. S. 313", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4652 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/100/0313-01" ] }, { "cite": "218 Ark. 725", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1612048 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/218/0725-01" ] }, { "cite": "325 U. S. 398", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6156498 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/325/0398-01" ] }, { "cite": "94 L. Ed. 839", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "339 U. S. 282", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 362513 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/339/0282-01" ] }, { "cite": "224 Ark. 505", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1646534 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/224/0505-01" ] }, { "cite": "225 Ark. 38", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1642636 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/225/0038-01" ] }, { "cite": "210 Ark. 672", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723434 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/210/0672-01" ] } ], "analysis": { "cardinality": 825, "char_count": 15842, "ocr_confidence": 0.549, "pagerank": { "raw": 3.2427706578643704e-07, "percentile": 0.8684276573653522 }, "sha256": "d79e0a35444aca01143a575f9f9a8db22c4e987c565bff7fa9240bd6d3a13afe", "simhash": "1:8e4d3c6516a9971e", "word_count": 2746 }, "last_updated": "2023-07-14T16:33:25.767944+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bailey v. State." ], "opinions": [ { "text": "J. Seaborn Holt, Associate Justice.\nAppellant, Luther Bailey, was convicted of the crime of rape and the death penalty was assessed, \u2014 \u00a7 41-3401 \u2014 41-3402\u2014 41-3403, Ark. Stats. 1947. From the judgment comes this appeal.\nFor . reversal appellant has assigned 31 alleged errors in his motion for a new trial.' The first three assignments question the sufficiency of the evidence. The prosecuting witness (a widow, 49 years of age, mother of two daughters and supervisor with the Independent Linen Company) testified that in the early morning (about 12:30 a.m.) of June 14, 1956, she was awakened by the barking of her neighbor\u2019s dogs, heard noises in her house and got up to investigate. As she was going into the kitchen a man seized her, carried her into a bedroom where he forcibly and against her will, and holding a knife at her throat, had intercourse with her. There was actual penetration. Immediately following the first assault on her, he forced her to give him her purse, (later found in his car) containing about $190\u2014 cut the telephone wire \u2014 and while in her living room forcibly and against her will had intercourse with her again. He dropped his identification cards in her bedroom. He then left.\nShe immediately went to the home of a next door neighbor and reported what had happened. This neighbor, Mr. Pitts, testified that the prosecuting witness, at between 1:00 and 1:30 \u00e1.m. on June 14, \u201ccame hammering on my door . . . she was dressed in a gown and had a robe on and a pair of shoes . . . She was very upset . . . nervous and crying . . on her leg there was a bruise and on her throat scratches and cuts or some kind of lacerations and also her hands and arms were bruised.\u201d He called the police and one of her daughters within five minutes \u2019 after she came in.He went with the police to her house, found it locked and entered by unlocking the back door. The light switch h\u00e1d been turned off. They found a billfold with appel-: lant\u2019s name on it on the floor of-her bedroom. A small window, in the pantry, some 6% feet from the ground* had been raised. There was a torn window screen on the ground. It had been on the window the day before. There was other evidence tending to corroborate the prosecuting witness. However, corroboration was not necessary to a conviction of rape. In Hodges v. State, 210 Ark. 672, 197 S. W. 2d 52, we said: \u201cHeadnote 1. Rape \u2014 Prosecuting Witnesses Need Not Be Corroborated. \u2014 In the prosecution of appellant on a charge of rape, it was not necessary that the testimony of the prosecuting witness be corroborated.\u201d Also see McDonald v. State, 225 Ark. 38, 279 S. W. 2d 44.\nAppellant admitted that he did have intercourse with the prosecuting witness, but stoutly insisted that she did not object but voluntarily submitted to him. This made a question of fact for the jury. We think there was ample substantial evidence to support the jury\u2019s verdict. The jury is the sole judge of credibility of the witnesses and the weight to be given their testimony.\nIn Assignment 4, error is alleged because the court denied his motion to consolidate along with the charge of rape, the charges of robbery and burglary. The answer is that \u00a7 43-1010 Ark. Stats. 1947 provides specifically what offenses may be joined in any indictment, and no provision is made for the joining of rape, burglary and robbery.\nIn Assignment 5, appellant says the court erred in refusing to allow him to take an \u201coral deposition\u201d of the prosecuting witness, relying on Act 335 of the Acts of 1953. We do not agree with this contention. We hold that Act 335 applies only to civil cases and that the legislature so intended. Reference is made repeatedly throughout the act to the \u201cparties\u201d, \u201ca party\u201d, or to any party \u2014 a defendant is not used. The applicable statute is \u00a7 43-2011 Ark. Stats. 1947 which provides: \u201cDepositions/ \u2014 -The court, or judge in vacation, or a judge of the Supreme Court, may authorize a defendant to take the deposition of a material witness where there are reasonable grounds to apprehend that, before' the\" trial, the witness will die or -.become mentally incapable of giving testimony, or physically incapable of attending the trial, or of becoming a nonresident of the state. The materiality of the testimony, and the reason for taking his deposition shall be shown by affidavit.\u201d Here no showing by affidavit was made by appellant that the prosecutrix was about to die, would become mentally or physically incapable to testify, or was about to become a nonresident, or that she would not be available at the trial. Had the legislature intended Act 335 to apply to criminal cases (as well as civil) it could easily have so declared. Furthermore, the appellant, himself, introduced in evidence the statement that the prosecutrix made to Deputy Prosecuting Attorney Jernigan.\nIn Assignments 6 and 7 appellant contends \u201cthat the court erred in not allowing the Jury Commissioners, for the March term 1952 to the March term 1956 inclusive, to testify, as these Jury Commissioners would have testified to the matters, allegations and other things set out in Luther Bailey\u2019s motion to quash the regular and special jury panels for the March 1956 term; that the court erred in overruling defendant\u2019s motion to quash the regular panel and the special panel of the petit jury.\u201d\nMr. Louis Rosteck, Deputy Clerk of the Circuit Court, testified in effect that his record shows that two negroes were selected by the jury commissioners for the March 1952 term, out of a total of 24. It is the general procedure of this court to select 24 jurors on the regular panel and 12 alternates. These two negroes actually served. There was one negro on the jury panel for the September 1952 term. There were two negroes selected for the March 1953 term. Five negroes served during the September 1953 term; three were on the extra panel and two on the regular panel. For the special panel five jurors were selected out of 21. There is nothing to indicate on the record whether they were white or colored. There were two negroes on the March 1954 term. There were 24 persons on the special panel; only five were selected. The record does not indicate whether the remainder were colored or white. Two negroes were selected on the panel for the September 1954 term. There was a special panel for that term of 100 names; seven persons were selected; they were all white. He did not know whether the remaining people on the list were colored or white. Three negroes served on the March 1955 regular panel. One person was used from the special panel of 100 names. Four negroes were included in the 100. Only one person out of 100 was used on the September 1955 special panel. There were three negroes on the regular panel. Three negroes were selected on the regular panel for the March 1956 term. The first special panel selected has 150 names on it; it does not indicate colored and white. The first 100 on this list were ordered to report this morning; 27 of them are here; none are negroes; . . . \u201cRecord of Poll Tax receipts issued in Pulaski County for the years 1954 and 1955.\nTotal number colored\n(1954) 10,180 14.8% (1955) 8,557 13.3%\nTotal number white\n(1954) 58,484 85.2% (1955) 55,980 86.7%\u201d\nWe think the court did not err in refusing to allow the jury commissioners to testify. They had not been subpoenaed to appear as witnesses and were not present. Furthermore, after the court had denied his request that they be permitted to testify, appellant failed to show what the jury commissioners would have said had they testified. See Turner v. State, 224 Ark. 505, 275 S. W. 2d 24.\nAppellant next argues that the above testimony of Louis Rosteck alone was sufficient to show racial discrimination. We do not agree. We think Rosteck\u2019s testimony, \u2014 which speaks, for itself, \u2014 does not show an intentional and systematic limitation of negroes on the jury list. The rule appears to be well settled that an accused is not entitled to a jury composed in part of members who are of his race. Cassell v. Texas, 339 U. S. 282, 94 L. Ed. 839, 70 S. Ct. 629; Akins v. Texas, 325 U. S. 398, 89 L. Ed. 1692, 65 S. Ct. 1276. Neither was appellant entitled to proportionate representation, on the jury\u2022.panels. \u201cFairness in selection has never been held' to require proportional representation of races upon a jury' . . . The mere fact of inequality in the number selected does not in itself show discrimination,\u201d Smith v. State, 218 Ark. 725, 238 S. W. 2d 649. Also see Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667; Thomas v. Texas, 212 U. S. 278, 53 L. Ed. 512, 29 S. Ct. 393.\nIn Assignment 8, appellant contends, that the court erred in permitting witness Charles Pitts to testify as to the prosecutrix\u2019s physical appearance when he admitted her to his home, on the night the crime was committed, at about 1:30 a.m. on June. 14. We have held contrary to this contention in Snetzer v. State, 170 Ark. 175, 279 S. W. 9, \u201cHeadnote 4. Rape- \u2014 -Evidence.\u2014 In a prosecution for assault with intent to rape, evidence that the prosecutrix had a scratch on her face the day after the alleged assault, and that her side was so badly hurt that she consulted a doctor three or four days later, was competent.\u201d\nIn Assignments 9, 10, 11 and 15, appellant contends, in effect, that the court erred in allowing certain officers to testify as to a statement, or confession, made and signed by him. We do not agree. The record reflects that appellant made the statement freely, voluntarily and without threats, duress or any promise of leniency, and after being warned that it might be used against him. See Morris v. State, 197 Ark. 695, 123 S. W. 2d 513 and Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964. Furthermore, appellant' introduced his own statement in evidence in his defense.\nIn Assignments 12, 13, 14 and 16, appellant contends that the court erred in admitting'in evidence (a) a billfold belonging 'to appellant, found in the prosecutrix\u2019s bedroom, (b) her purse found in appellant\u2019s car and (c) certain photographs, showing\u2019the bruises \"on her body, as above indicated. \u2022 No error is shown here. The evidence reflects that appellant - admitted to two officers that the folder found in' the bedroom belonged to him. At the time of appellant\u2019s arrest Officer Turner found prosecutrix?s purse in appellant\u2019s car. Another officer testified that this purse was turned over to him by Officer Turner and was in substantially the same condition as when received. In Grays v. State, 219 Ark. 367, 242 S. W. 2d 701, where the facts were similar in effect to those presented here, we said: \u201cThe pocketbook was identified by the widow of the deceased as being his and, though some of the money had been taken out, the pocketbook had been in no way altered. It was competent to show a connection between the defendant and the murder.\u201d As to the photographs in question, the prosecutrix and a physician testified that they accurately represented her injuries, showing the area and the condition of the bruises on her body. In Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17, we said: \u201cThe admission and relevancy of photographs must necessarily rest largely in the discretion of the trial judge. We find no abuse of discretion in the admission of photographs in the instant case. Admissibility of photographs does not depend upon whether the objects they portray could be described in words, but rather on whether it would be useful to enable the witness better to describe and the jury better to understand, the testimony concerned. Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible.\u201d See also Jones v. State, 213 Ark. 863, 213 S. W. 2d 974; Black v. State, 215 Ark. 618, 222 S. W. 2d 816; Smith v. State, 216 Ark. 1, 223 S. W. 2d 1011; Perkins v. State, 217 Ark. 252, 230 S. W. 2d 1.\nIn Assignments 17 and 18, appellant challenges the correctness of the court\u2019s striking the testimony of Irene Wright. She testified that appellant lived close to her and that she had received 'several telephone calls for him from \u00e1 person who identified herself as the prosecuting witness. She did not know the prosecutrix and was not sure that the voice was that of a white woman. We think this testimony' was properly excluded for the reason that the identity of the person who talked to the witness over the telephone was not satisfactorily identified. \u2018 \u2018 Generally, in order to introduce evidence of a telephone conversation or communication, otherwise unobjectionable, the identity of the person, who is claimed to have talked over the telephone, must first he satisfactorily established by the party seeking the introduction of the telephone conversation. To hold one responsible for statements and answers made over the telephone by unidentified persons would open the door for fraud and imposition,\u201d 20 Am. Jur., Evidence, \u00a7 366, p. 334.\nIn the remaining assignments, 19 \u2014 31, appellant contends that the court erred in giving certain instructions offered by the State and in refusing to give his requested instructions 1, 2, 3, 4, 5, 9, 12, 13, 14, 15 and 20. It appears that only a general objection was made by appellant to the court\u2019s refusal to give all of his requested instructions above with the exception of Instruction 20 (to which refusal a specific objection was made), which was a requested instruction on the lesser offense of assault with intent to commit rape. As indicated, other than the specific objection to the court\u2019s refusal to give his Instruction 20, only a general objection was made to the refusal to give the other instructions. It was appellant\u2019s duty by specific objection to point out any vice in these instructions. This he failed to do. See Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650. We have examined these instructions to which appellant was content to make only a general objection and find no error in any of them.\nWe think there was no error in the court\u2019s refusal to give appellant\u2019s Instruction 20 on assault with intent to commit rape. The prosecutrix\u2019s testimony tended to show that appellant was guilty of rape. The appellant admitted that he did have intercourse with her but testified that she did not object \u2014 hut consented. In these circumstances we think the court properly refused to instruct the jury on the lesser offense of assault to rape. We said in Whittaker v. State, 171 Ark. 762, 286 S. W. 937, \u201cMoreover, 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.\u201d See also Needham v. State, 215 Ark. 935, 224 S. W. 2d 785.\nAffirmed.\n(ORDER OF JULY 1, 1957)\nRehearing denied. Holt and Ward, JJ., upon reconsideration think the petition for rehearing in this case should be granted on the sole ground that the trial court erred in refusing to give the instruction, requested by appellant, on the lesser offense of an assault with intent to commit rape.", "type": "majority", "author": "J. Seaborn Holt, Associate Justice." } ], "attorneys": [ "Thad I). Williams, for appellant.", ", Bruce Bennett, Atty. Gen\u2019l.; Thorp Thomas, Asst. Atty. Gen\u2019l., for appellee. \u2022" ], "corrections": "", "head_matter": "Bailey v. State.\n4866\n302 S. W. 2d 796\nOpinion delivered May 27, 1957.\n[Rehearing denied July 1, 1957]\nThad I). Williams, for appellant.\n, Bruce Bennett, Atty. Gen\u2019l.; Thorp Thomas, Asst. Atty. Gen\u2019l., for appellee. \u2022" }, "file_name": "0889-01", "first_page_order": 913, "last_page_order": 922 }