{ "id": 1727697, "name": "Warbington v. State", "name_abbreviation": "Warbington v. State", "decision_date": "1966-06-06", "docket_number": "5192", "first_page": "1073", "last_page": "1079", "citations": [ { "type": "official", "cite": "240 Ark. 1073" }, { "type": "parallel", "cite": "405 S.W.2d 281" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "214 Ark. 287", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720200 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/214/0287-01" ] }, { "cite": "211 Ark. 189", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1473174 ], "weight": 2, "year": 1947, "opinion_index": 0, "case_paths": [ "/ark/211/0189-01" ] }, { "cite": "238 Ark. 780", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1734197 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/ark/238/0780-01" ] }, { "cite": "222 Ark. 483", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1652823 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/ark/222/0483-01" ] }, { "cite": "237 Ark. 649", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737982 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/ark/237/0649-01" ] }, { "cite": "116 S. W. 2d 604", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "196 Ark. 97", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1462436 ], "opinion_index": 0, "case_paths": [ "/ark/196/0097-01" ] }, { "cite": "230 Ark. 646", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1700109 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/230/0646-01" ] } ], "analysis": { "cardinality": 586, "char_count": 9502, "ocr_confidence": 0.498, "pagerank": { "raw": 1.059989733099374e-07, "percentile": 0.5564766517275718 }, "sha256": "75da57de3d5f8daca5bec99e55ccb0a056474a68bd8831c24f7e381548c53289", "simhash": "1:ffe9cb1ff4e491dc", "word_count": 1692 }, "last_updated": "2023-07-14T18:11:15.698686+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Warbington v. State" ], "opinions": [ { "text": "Guy Amsler, Justice.\nOn September 30, 1965, appellant was convicted on three morals charges, involving a seven year old girl. The jury fixed his punishment for carnal abuse [Ark. Stat. Ann. \u00a7 41-3406 (Repl. 1964) ] at five years in the state penitentiary, two years for indecent exposure [Ark. Stat. Ann. \u00a7 41-1127 (Repl. 1964)] and one year for unlawful fondling of a child [Ark. Stat. Ann. \u00a7 41-1128 (Repl. 1964)]. Appeal was perfected in apt time.\nAppellant\u2019s first argument for reversal concerns \u201cmerger of offenses.\u201d Since all of the charges grew out of the same incident it is contended that the cause should be remanded for a trial on one charge at a time and that the other two either be dropped or presented separately. Neither before nor during trial, nor in his motion for a new trial did appellant raise this point. He permitted the court to consolidate the charges for trial, proceeded through two days of hearings and presented his motion for a new trial without uttering a word in protest.\nIn Carter v. State, 230 Ark. 646, 326 S. W. 2d 791, we said:\n\u201cThis alleged error was first raised by appellant in his motion for a new trial. It comes too late for this court to consider it. We have consistently adhered to the rule that before an alleged error, in felony cases of a lesser degree than capital, may be considered by this court on appeal, the complaining party must first make an objection, call for a ruling from the trial court, make and preserve an exception from an adverse ruling, and the matter complained of must be assigned as error in a motion for a new trial.\u201d\nHad the suggestion of overlapping crimes been brought to the attention of the able trial judge he doubtlessly would have taken such action, by way of severance or abatement, as the law and facts warranted. Having, without objection, gone to trial on all three charges, hoping perhaps that if the jury found him guilty it would be of a crime carrying a lesser penalty, he is not in a position to utter initial protest in this court. He was obliged to present his objection to the trial court. Matz v. State, 196 Ark. 97, 116 S. W. 2d 604; 21 Am. Jur. 2d, Criminal Law, \u00a7\u00a7 469, 470.\nSince the sentences were all made to run concurrently, it is apparent that the appellant was not prejudiced by a failure of the trial court to order some procedure other than that followed.\nIt is next contended that \u201cthe evidence is insufficient to sustain the crime of carnal abuse.\u201d The relevant facts may be stated rather briefly. Appellant h'ad spent the night before the incident complained of with an employee of his named Shipp who lived across the street from the little girl\u2019s home in West Memphis, Arkansas. Appellant, with Shipp and others had consumed some alcoholic beverages that night. The next morning about 8:30 Mrs. Shipp came over for a visit with the little girl\u2019s mother and shortly thereafter appellant arrived. He had a drink and then went to the store to purchase some items for one or both of the women. Sheila (the girl victim) accompanied him. While on this mission appellant purchased a bottle of liquor. On returning he offered the women a drink but they declined and he took one alone.\nAppellant had planned a trip to Tennessee that day so he went to the Shipps\u2019 house to get his luggage and start on his journey. Sheila again went with him to say \u201cgoodbye.\u201d The little girl was gone longer than her mother thought necessary so she asked Mrs. Shipp to investigate.\nShortly after Mrs. Shipp left, the little girl came running home looking \u201creal scared\u201d and entered the bathroom. An examination by her mother revealed that she was bleeding and according to the mother \u201chad been torn and scratched.\u201d\nSheila was taken to the family doctor who found a small bruised area, with \u201ca very small amount of bleeding\u201d in the vestibule of the vagina-superior region. This was described as the area external to the hymenal ring. The injury was minimal.\nAppellant drove to Savannah, Tennessee, and from there called Sheila\u2019s mother during the afternoon and according to the mother asked a number of times, \u201cAre you sure you and the children are all right?\u201d The jury could have weighed this circumstance as an indication of apprehension on the part of appellant concerning what had transpired that morning at the Shipp residence.\nThe little girl testified that after they entered the Shipp home appellant sat down in a chair and lifted her to his lap; that he placed his hand between her legs inside the front of her pants, moved one finger around; that it hurt and she immediately had a desire to go to the bathroom. Appellant released her but followed her to the bathroom exposing himself at the same time. Shortly thereafter Mrs. Shipp appeared on the scene. Appellant categorically denied any improper conduct with or toward the child. He offered no witness other than himself, except a number of his neighbors who vouched for his g*ood reputation.\nThe proof was ample for carrying the case to the jury on the question of carnal abuse. Holland v. State, 237 Ark. 649, 375 S. W. 2d 234 (1964); Watt v. State, 222 Ark. 483, 261 S. W. 2d 544 (1953).\nA further contention for reversal is that the trial court should have stricken the little girl\u2019s testimony \u201cas being totally unreliable.\u201d Harris v. State, 238 Ark. 780, 284 S. W. 2d 477 (1964), is relied on. A casual comparison of the testimony of the children in these two cases will demonstrate a marked difference in ability to relate facts.\nThe direct and cross-examination of Sheila covered 33 pages of the transcript and while there were instances of inability to remember and some minor conflicts, her testimony as a whole evidenced a remarkable ability, for a seven year old child, to remember details and give expression to her views. To illustrate, on cross-examination:\n\u201cQ. Did you, personally, talk to Mr. Harrison? [the prosecuting attorney]\nA. No, sir. My mother and father did.\nQ. What?\nA. Sitting there.\nQ. Where did they talk to him?\nA. In here.\nQ. Did you talk to Mr. Fogleman about this too?\nA. No, sir. Not here. Mr. Fogleman wasn\u2019t here.\nQ. Where did you talk to Mr. Fogleman about this?\nA. Up there at West Memphis City Hall.\nQ. At City Hall. Have you talked to him since that time, since that at City Hall?\nA. Not that I remember, except for this morning.\nQ. What?\nA. Except for this morning, I think, he asked me one question.\nQ. Who else have you talked to about this ease, this matter?\nA. No one.\nQ. Have you talked to your mother about it?\nA. Yes, sir. My mother and father asked me about it?\nQ. Asked, you what?\nA. About it.\nQ. About it, when was this?\nA. The day that it happened.\nQ. Sheila, have you talked to your mother and father about this since that Municipal Court hearing?\nA. No, sir. Because, Mother told me to go ahead, forget it, because it was over with.\nQ. When did she tell you that?\nA. The day after.\nQ. The day after the hearing in Municipal Court?\nA. Yes, sir. She didn\u2019t know we were going to have to come up here, I guess.\nQ. She didn\u2019t know it, you guess, and you haven\u2019t talked to her about it this past week any time?\nA. Not that I remember.\nQ. And haven\u2019t talked to her about what you were going to say up here ?\nA. No, sir. All I told them, I, just going to tell the truth.\nQ. When did you tell them that?\nA. The day that they told me we were going to have to go in West Memphis, I said, \u2018Mother, don\u2019t worry, I will tell the truth\u2019.\u201d\nAgain on cross-examination:\n\u201cQ. You did talk to your mother that day, before you went to the doctor, didn\u2019t you?\nA. Yes, sir.\nQ. She was real excited?\nA. She was worried.\nQ. What?\nA. Worried.\nQ. Worried. When was she worried?\nA. After I told her.\u201d\nWe unhesitatingly conclude that there was no abuse of discretion by the trial judge in refusing to strike Sheila\u2019s testimony.\nThe motion for a new trial alleges error in refusing appellant\u2019s requested instruction no. 3, which was a \u201ccautionary\u201d instruction relating to the testimony of Sheila. It would have told the jury to \u201cconsider her testimony with great care and caution, being careful to give it only such weight and credit as it should receive. You should consider her faculty of accurate memory and her ability to observe and relate past events.\u201d\nThe court gave the customary instruction on weight of the evidence and credibility of the witnesses and it would appear that appellant\u2019s instruction no. 3, if given, would have removed the child\u2019s evidence from the general rule as to weight and credibility without supplying a proper yardstick. The admonition to give her testimony \u2018 \u2018 only such weight and credit as it should receive \u2019 \u2019 would have placed the jurors in the position of having to determine for themselves what criterion to utilize in evaluating her evidence and this is not a procedure to be encouraged.\nWe have said that the giving of a cautionary instruction is discretionary with the trial court and that such discretion will not be limited unless grossly abused to the prejudice of the accused. Bradshaw v. State, 211 Ark. 189, 199 S. W. 2d 747 (1947); Caldwell v. State, 214 Ark. 287, 215 S. W. 2d 518.\nThere was no abuse of discretion by the court in refusing appellant\u2019s requested instruction no. 3 and appellant was not prejudiced thereby.\nAffirmed.", "type": "majority", "author": "Guy Amsler, Justice." } ], "attorneys": [ "Marvin B. Gambill, Memphis, Tenn., for appellant.", "Bruce Bennett, Attorney General, Fletcher Jaclcson, Asst. Attorney General, for appellee." ], "corrections": "", "head_matter": "Warbington v. State\n5192\n405 S. W. 2d 281\nOpinion delivered June 6, 1966\n[Rehearing- denied July 25, 1966.]\nMarvin B. Gambill, Memphis, Tenn., for appellant.\nBruce Bennett, Attorney General, Fletcher Jaclcson, Asst. Attorney General, for appellee." }, "file_name": "1073-01", "first_page_order": 1097, "last_page_order": 1103 }