{
  "id": 1502486,
  "name": "Carothers v. State",
  "name_abbreviation": "Carothers v. State",
  "decision_date": "1905-06-10",
  "docket_number": "",
  "first_page": "574",
  "last_page": "576",
  "citations": [
    {
      "type": "official",
      "cite": "75 Ark. 574"
    }
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  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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    "name_long": "Arkansas",
    "name": "Ark."
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      "cite": "65 Ark. 564",
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      "cite": "54 Ark. 663",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "cite": "11 Ark. 406",
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      "reporter": "Ark.",
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      "cite": "46 Ark. 141",
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      "reporter": "Ark.",
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    {
      "cite": "54 Ark. 660",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "case_paths": [
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    {
      "cite": "65 Ark. 559",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "case_paths": [
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  "analysis": {
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  "last_updated": "2023-07-14T18:36:39.073648+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Carothers v. State."
    ],
    "opinions": [
      {
        "text": "Hiss, C. J.\nCarothers was indicted under section 2008, Kirby\u2019s Digest, for carnal abuse of Dou Eldridge, a female under the age of 16 years, was convicted, and has appealed.\n1. The indictment was returned May 6, 1904, and alleged the offense to have been committed on May 10, 1904. It was essentially similar to the one in Conrand v. State, 65 Ark. 559. The court in that case held that an indictment charging the offense in the past tense was not vitiated by the insertion, evidently by clerical error, of a date in the future.\nThe trial judge, in his charge, told the jury that the indictment charged that the crime was committed in 1904, \u201cand the proof shows that it was in 1903, which makes no difference.\u201d The instruction is criticised for assuming that the crime was proved. While the instruction is not happily worded, yet its meaning, in view of the facts and the connection in which it was used, is clear. However, there is no exception to this instruction, and no assignment \u2022 of error based upon it in the motion for new trial, and hence it is not properly for review here.\n2. The appellant complains of the following action pf the court: \u201cThe defendant thereupon asked the court to instruct the jury that if the act of sexual intercourse was committed forcibly and against the will of the prosecuting witness, then the crime was rape, and not carnal abuse, which was by the court refused.\u201d\nThe prosecutrix testified that the first act of intercourse was without her consent and against her will. She also testified to four other subsequent acts of intercourse, where the lack of consent is not shown. Discarding the first act, still the evidence sustains the verdict; But the fact that the intercourse was procured in a manner to constitute rape will not be a defense to an indictment under this statute. The charge of rape does not include this crime,'as pointed out in Warner v. State, 54 Ark. 660, but the fact of sexual intercourse with a female und\u00e9r 16 years of age, with or without her consent, whether obtained by force or from lust, constitutes the crime denounced by this statute.\n3. The appellant testified in his own behalf, and denied the crime charged, and explained the occasion of the trip when the first act was charged to have been committed. He testified 1 regard to all the material questions before the jury. The State was permitted to cross-examine him as to whether one Riggs, a friend of his, had offered the father of the prosecutrix $1,000 to get the girl out of the county, in order to prevent her testifying against him. He denied all knowledge of any such action. There was evidence on behalf of the State tending to prove that an effort had been made by another party to get the girl away. The first case in which this court passed on the act of 1885 (Kirby\u2019s Dig. \u00a7 3008) permitting the defendant to testify in criminal cases was McCoy v. State, 46 Ark. 141, and the following rule announced: \u201cA defendant in a criminal case takes the stand like any other witness. He is subject to the same liabilities on cross-examination as are other witnesses.\u201d This rule has been followed \u2019 and applied in many cases since. It was entirely competent to attempt to prove by this witness\u2014 defendant \u2014 that he was attempting to silence testimony against him. Some of the questions asked assumed facts not proved, but he denied all knowledge of the matter inquired of, and no prejudicial error is seen in this regard.\nThe circuit court is necessarily vested with a large discretion in controlling the examination of witnesses, and it is only for an abuse of such discretion prejudicial to the appellant that reversals can be obtained. Scott v. State, ante, p. 142.\n. 4. On the whole case, the court is unable to find prejudice to the appellant. The prosecutrix was severely attacked, and her moral character questioned, and the probability of her evidence assailed. The jury has, however, believed her and discredited the appellant, and their decision upon all such matters is final.\nThe judgment is affirmed",
        "type": "majority",
        "author": "Hiss, C. J."
      }
    ],
    "attorneys": [
      "Cravens & Covington and Atkinson & Patterson, for appellant.",
      "Robert L. Rogers, for appellee."
    ],
    "corrections": "",
    "head_matter": "Carothers v. State.\nOpinion delivered June 10, 1905.\n1. Indictment \u2014 allegation of future date \u2014 misprision.\u2014An allegation in an indictment that the offense was committed on a future and impossible date will be treated as a clerical error, and will not vitiate the indictment. (Page 575.)\n2. Carnal abuse \u2014 defense.\u2014Under an indictment for carnal abuse the fact that the intercourse was procured in a manner to constitute rape will riot be a defense. (Page 575.)\n3. Accused as witness \u2014 cross-examination.\u2014It was no abuse of discretion for the trial court in a prosecution for carnal abuse to permit the accused to be\u00bb cross-examined as to whether he had not attempted to get the prosecutrix out of the county in order to prevent her from testifying against him. (Page 576.)\nAppeal from Conway Circuit Court.\nWieeiam I\u00bb. Moose, Judge.\nAffirmed.\nCravens & Covington and Atkinson & Patterson, for appellant.\nAppellant could not properly be convicted of carnal abuse. 11 Ark. 406; 50 Ark. 330; 54 Ark. 663. The indictment shows that the finding of the indictment was prior to the commission of the offense. Kirby\u2019s Dig. \u00a7 2228; 65 Ark. 564.\nRobert L. Rogers, for appellee."
  },
  "file_name": "0574-01",
  "first_page_order": 596,
  "last_page_order": 598
}