{
  "id": 8723283,
  "name": "Johnny VERSER, Mose COTTON and Howard COTTON v. STATE of Arkansas",
  "name_abbreviation": "Verser v. State",
  "decision_date": "1974-05-20",
  "docket_number": "CR 74-15",
  "first_page": "609",
  "last_page": "612",
  "citations": [
    {
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      "cite": "256 Ark. 609"
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    {
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      "cite": "509 S.W.2d 299"
    }
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    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "cite": "253 Ark. 854",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "opinion_index": 0,
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      "cite": "272 S.W. 359",
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      "reporter": "S.W.",
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    {
      "cite": "168 Ark. 1012",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
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  "last_updated": "2023-07-14T14:44:14.527021+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Johnny VERSER, Mose COTTON and Howard COTTON v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "J. FRED Jones, Justice.\nJohnny Verser, Mose Cotton and Howard Cotton were convicted in Desha County Circuit Court of the crime of sodomy and were sentenced to three years each in the penitentiary. On appeal to this court they designate the points upon which they rely for reversal as follows:\n\u201cThe trial court erred in denying the defendants\u2019 plea of former jeopardy.\nThe trial court erred in finding the appellant, Howard Cotton, guilty of the crime of sodomy upon the uncorroborated testimony of the prosecuting witness.\nThe trial court erred in admitting the statements of each defendant because said statements were taken without due process of law and in violation of the constitutions of the state of Arkansas and the United States.\u201d\nWe find no merit to the points relied upon which we now discuss in the order listed.\nOn June 14, 1973, the appellants were arrested by the Dumas police and charged with disturbing the peace and assaulting Jessie Malone on June 11, 1973. Each appellant posted bond in the amount of $99.00 for appearance in the Justice of the Peace Court. The appellant, Johnny Verser, appeared injustice of the Peace Court and entered a plea of guilty to the charge of disturbing the peace and assault upon Malone but the other two appellants, Mose and Howard Cotton, failed to appear and forfeited their bond in the Justice of the Peace Court. On June 21, 1973, the appellants were arrested a second time and charged with the offense of sodomy described in the information as the commission of \u201can immoral sex act with Jessie Malone, a male person,\u201d which allegedly occurred on June 11, 1973. The cases were consolidated for trial, a jury was waived and the appellants were tried before the trial judge sitting as a jury.\nThe testimony of the prosecuting witness, Jessie Malone, was to the effect that the three appellants beat him on three separate occasions on the night of June 11, 1973, and following the second beating they forced him to commit an act of sodomy with each of them. Malone testified as to how he came in contact with the appellants at a cafe on the evening of June 11, 1973, and how they enticed him into their automobile on the pretense of first taking him by Martha Berry\u2019s house where he could leave some beer he had purchased for her, after which they would drive around and drink beer together. He said that instead of taking him by Martha Berry\u2019s house they took him out into the country where they drank his beer, then beat him over the head with one of their belts. He said that the three appellants beat him to the ground and drug him into the woods between the road and a bayou where they beat him some more. He said the appellants then left him on the bank of the bavou and drove off in the direction of Dumas. He said he finally got out on the road and was trying to catch a ride into town when the appellants, who had turned around somewhere along the road, stopped again. He said that the appellants got out of their automobile, beat him again and then forced him to commit the acts of sodomy. He said the appellants then left him again but soon returned and beat him some more and threatened to kill him.\nOn cross-examination Malone testified that he was acquainted with Mose and Howard Cotton and on the day prior to their attack upon him, he had some difficulty with one of their brothers who accused him of stealing $15.00. He said he struck the Cotton brother with a cold drink bottle.\nMose Cotton testified that he had known Jessie Malone for some time and that Malone had purchased beer for him. He said that on the day prior to the incident involved in this case, Malone had struck his brother with a bottle and that was the reason the appellants assaulted him. The appellants admitted the unnatural sex acts as described by Malone but they denied they forced Malone to commit the acts.\nThe appellants argue that Verser's plea of guilty and the forfeiture of the bonds by the Cottons amounted to \u201ca prosecution\u201d in the Justice of the Peace Court for the same crime for which they were later tried and convicted in cirpuit court. They argue that since the sodomy charge arose out of the same transaction or incident, that prosecution for any part of a single crime bars further prosecution based on the whole or a part of the same crime, citing 15 Am. Jur. \u00a7 58, Criminal Law.\nAssault is a misdemeanor defined as \u201can unlawful attempt coupled with a present ability to commit a violet injury upon the person of another,\u201d Ark. Stat. Ann. \u00a7 41-601 (Repl. 1964), and simple assault is punishable by a fine not exceeding $100. Disturbing the public peace is a misdemeanor and the statutory definition, \u00a7 41-1401, includes many specific acts, such as challenging to fight and fighting. but an act of sodomy is not among them. The common-law crime of sodomy is a felony punishable by imprisonment in the penitentiary for not less than one nor more than 21 years, \u00a7 41-813. It has been defined as including \u201cunnatural sex relations between persons of the same sex, or with beasts, or between persons of different sex, but in an unnatural manner.\u201d Strum v. State, 168 Ark. 1012, 272 S.W. 359.\nIn the very recent case of Connor v. State, 253 Ark. 854, 490 S.W. 2d 114, in reference to the definition of the crime of sodomy, we said:\n\u201cWhether it is called sodomy, buggery, or crime against nature \u2014 as it is often called interchangeably \u2014 it boils down to a simple definition that it is an unnatural sex act which is condemned. It is the opposite of a natural sex act. ...\u201d\nConsequently, by simple definition alone, there is no relation between the misdemeanors of assault and disturbing the peace and the felonious crime of sodomy.\nWe find no merit to appellants second contention that the trial court erred in finding the appellant, Howard Cotton, guilty of the crime of sodomy upon the uncorroborated testimony of the prosecuting witness. The appellants, Johnny Verser and Mose Cotton, gave testimony in corroboration of the prosecuting witness and we conclude it was sufficient to sustain the conviction. Furthermore, the trial court, sitting as a jury, had a right to conclude from the evidence that the prosecuting witness Malone was not a willing and voluntary participant in the acts of sodomy and was, therefore, not an accomplice whose testimony required corroboration. Hummel v. Staff, 210 Ark. 471, 196 S.W. 2d 594.\nWe find no merit to the appellants\u2019 third contention that the court erred in admitting the statements of each defendant because they were taken without due process of law and in violation of the provisions of the Constitutions of the state and the United States. From the testimony of Chief Morgan and from the testimony of the appellants themselves, we conclude that the statements made by the appellants were voluntary.\nThe judgment is affirmed.",
        "type": "majority",
        "author": "J. FRED Jones, Justice."
      }
    ],
    "attorneys": [
      "John F. Gibson, Jr., for appellants.",
      "Jim Guy Tucker, Atty. Gen. by: Robert S. Moore, Jr., Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Johnny VERSER, Mose COTTON and Howard COTTON v. STATE of Arkansas\nCR 74-15\n509 S.W. 2d 299\nOpinion delivered May 20, 1974\nJohn F. Gibson, Jr., for appellants.\nJim Guy Tucker, Atty. Gen. by: Robert S. Moore, Jr., Asst. Atty. Gen., for appellee."
  },
  "file_name": "0609-01",
  "first_page_order": 645,
  "last_page_order": 648
}