{ "id": 1546832, "name": "Bowman v. State", "name_abbreviation": "Bowman v. State", "decision_date": "1909-12-20", "docket_number": "", "first_page": "168", "last_page": "176", "citations": [ { "type": "official", "cite": "93 Ark. 168" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "65 Ark. 475", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 609240 ], "opinion_index": -1, "case_paths": [ "/ark/65/0475-01" ] }, { "cite": "75 Ark. 437", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "75 Ark. 246", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502492 ], "opinion_index": -1, "case_paths": [ "/ark/75/0246-01" ] }, { "cite": "50 Ark. 492", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723936 ], "opinion_index": -1, "case_paths": [ "/ark/50/0492-01" ] }, { "cite": "69 Ark. 322", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722514 ], "opinion_index": -1, "case_paths": [ "/ark/69/0322-01" ] }, { "cite": "45 Ark. 165", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892059 ], "opinion_index": -1, "case_paths": [ "/ark/45/0165-01" ] }, { "cite": "35 Ark. 639", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873845 ], "opinion_index": -1, "case_paths": [ "/ark/35/0639-01" ] }, { "cite": "30 Ark. 328", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881110 ], "opinion_index": -1, "case_paths": [ "/ark/30/0328-01" ] }, { "cite": "19 Ark. 156", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725477 ], "opinion_index": -1, "case_paths": [ "/ark/19/0156-01" ] }, { "cite": "61 Wis. 215", "category": "reporters:state", "reporter": "Wis.", "opinion_index": -1 }, { "cite": "8 Allen 214", "category": "reporters:state", "reporter": "Allen", "opinion_index": -1 }, { "cite": "92 N. C. 172", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "78 Ala. 119", "category": "reporters:state", "reporter": "Ala.", "opinion_index": -1 }, { "cite": "66 Cal. 15", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2249617 ], "opinion_index": -1, "case_paths": [ "/cal/66/0015-01" ] }, { "cite": "115 Ill. 463", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "76 Ark. 280", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "73 Ark. 407", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504013 ], "opinion_index": -1, "case_paths": [ "/ark/73/0407-01" ] }, { "cite": "72 Ark. 590", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "18 N. E. 817", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "126 Ill. 150", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5405454 ], "opinion_index": -1, "case_paths": [ "/ill/126/0150-01" ] }, { "cite": "90 N. C. 688", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "24 Mo. 475", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8856689 ], "opinion_index": -1, "case_paths": [ "/mo/24/0475-01" ] }, { "cite": "6 Tex. App. 19", "category": "reporters:state", "reporter": "White & W.", "opinion_index": -1 }, { "cite": "6 S. W. 540", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "24 Tex. App. 433", "category": "reporters:state", "reporter": "White & W.", "opinion_index": -1 }, { "cite": "12 So. 582", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": -1 }, { "cite": "70 Miss. 554", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1781478 ], "opinion_index": -1, "case_paths": [ "/miss/70/0554-01" ] }, { "cite": "80 Ill. 251", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2681143 ], "opinion_index": -1, "case_paths": [ "/ill/80/0251-01" ] }, { "cite": "45 Cal. 323", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2335179 ], "opinion_index": -1, "case_paths": [ "/cal/45/0323-01" ] }, { "cite": "11 S. W. 1117", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "74 Tex. 287", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2186775 ], "opinion_index": -1, "case_paths": [ "/tex/74/0287-01" ] }, { "cite": "50 Ark. 336", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "91 Ark. 582", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1511787 ], "opinion_index": 0, "case_paths": [ "/ark/91/0582-01" ] }, { "cite": "55 Ark. 342", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1322279 ], "opinion_index": 0, "case_paths": [ "/ark/55/0342-01" ] }, { "cite": "73 Ark. 148", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504019 ], "opinion_index": 0, "case_paths": [ "/ark/73/0148-01" ] }, { "cite": "27 Ark. 235", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885731 ], "opinion_index": 0, "case_paths": [ "/ark/27/0235-01" ] }, { "cite": "35 Ark. 588", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "35 Ark. 118", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873890 ], "opinion_index": 0, "case_paths": [ "/ark/35/0118-01" ] }, { "cite": "78 Ark. 228", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "79 Ark. 194", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1495703 ], "opinion_index": 0, "case_paths": [ "/ark/79/0194-01" ] }, { "cite": "10 Ark. 454", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "64 Ark. 240", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907367 ], "opinion_index": 0, "case_paths": [ "/ark/64/0240-01" ] }, { "cite": "89 Ark. 428", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515286 ], "opinion_index": 0, "case_paths": [ "/ark/89/0428-01" ] }, { "cite": "61 Wis. 215", "category": "reporters:state", "reporter": "Wis.", "opinion_index": 0 } ], "analysis": { "cardinality": 838, "char_count": 18895, "ocr_confidence": 0.673, "pagerank": { "raw": 7.1995045264666e-07, "percentile": 0.9675573749666486 }, "sha256": "dff1816fa2ee7a6f6373d7dec9acee65f8e043dca15c883ae9b0cced88d11ce3", "simhash": "1:e1e7cabc2f9ecd91", "word_count": 3326 }, "last_updated": "2023-07-14T19:33:20.707045+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bowman v. State." ], "opinions": [ { "text": "Hart, J.\nThis is an appeal by William Bowman from a judgment of conviction of rape, and is the second appeal in the case. William Bowman was indicted for the crime of rape. A demurrer to the indictment was sustained by the circuit court, and the State appealed to this court. The demurrer to the indictment raised the question whether the circuit court of Sebastion County for the Fort Smith District had jurisdiction over crimes committed in the territory locally known as the \u201cChoctaw Strip.\u201d This court held that it had such jurisdiction, and the cause was remanded with directions to overrule the demurer. The case is reported in 89 Ark. 428, under the style of State v. Bowman.\nOn the remand of the case the defendant again raised the question of jurisdiction by demurrer, which was filed and overruled on August 5, 1909. The decision on the former appeal became the law of the case, and the demurrer was properly overruled.\nThe ground of the motion to quash the indictment is that the act of Congress approved February 11, 1905, ceding the territory Commonly called the \u201cChoctaw Strip\u201d to the State of Arkansas, and the acts of our Legislature accepting the same, approved February 16, 1905, and March 14, 1905, are not effective, for .the reason that said acts do not describe any territory at all.\nThe act of Congress granting the land and the acts of our Legislature accepting the grant describe the land ceded as \u201call that strip of land in the Indian Territory, lying and being situated between the Arkansas State line, adjacent to the city of Fort Smith, Arkansas, on the Arkansas and Poteau rivers, described as follows, namely:\n\u201cBeginning at the point on the south bank on the Arkansas River, 100 paces east of old Fort Smith, where the western boundary line of the State of Arkansas crosses the said river, and running southwesterly along the bank of the Arkansas River to the mouth of the Poteau River to the center of the current of said river; thence southerly up the middle of the Poteau River (except whejre the Arkansas River intersects the Poteau River) to the point in the middle of the current of Poteau River opposite the mouth of Mill Creek and where it is intersected by the middle of the current of Mill Creek; thence up Mill Creek to the Arkansas State line; thence northerly up the State line to the point of beginning.\u201d\nIn the case of Beardsley v. Nashville, 64 Ark. 240, Mr. Justice Riddick, speaking for the court, after quoting as the rule of construction, the following: \u201cA deed is to be construed according to the intention of the parties as manifested by the entire instrument, although such construction may not comport with the language of a particular part of it,\u201d said: \u201cWhen a deed contains two descriptions of -the land conveyed which are inconsistent with each other, that description must control which best expresses -the intention of the parties, as manifested by the whole instrument and the surrounding circumstances.\u201d\nApplying these rules, there can be no doubt as to the territory intended to be ceded to the State of Arkansas. The general description, both in the act of Congress and the acts of our Legislature, in general terms describes it by permanent lines, so that it's location could not be mistaken. In the particular description it is perfectly plain that the use of the word \u201ceast\u201d in .the clause, \u201cBeginning at a point on the south bank on the Arkansas River 100 paces east of Old Fort Smith/\u2019 was a clerical mistake; for the point designated as the beginning point was one \u201cwhere the western boundary line of the State of Arkansas crosses the said river.\u201d Obviously, the word intended to be used was \u201cwest,\u201d instead of \u201ceast.\u201d The particular description in the present case can be made effective by either rejecting as surplusage the mistaken description \u201c100 paces east of Old Fort Smith,\u201d or by substituting the word \u201cwest\u201d for \u201ceast.\u201d Palms v. Shawano County, 61 Wis. 215; Endlich on Interpretation of Statutes, \u00a7 319.\nTherefore, the court correctly overruled the motion to quash the indictment. A change of venue was granted to the defendant, and the case was tried in Scott County.\nIt is conceded .by counsel for defendant that there was sufficient evidence to support the verdict, and this is clearly apparent from a reading of the record.\nThe girl alleged to have been raped was only 11 years old, and had known the defendant nearly all her life. He had stayed all night at her father\u2019s house on the night before, and had left the house with .him on the morning of the alleged rape. Eater in the morning he returned, and, as testified to :by Ella Banks, he grabbed her, threw her down and raped her. She described her resistance and his manner of accomplishing his purpose. We omit the details, and only state that they were abundantly sufficient to establish the crime of rape. Ella Banks was corroborated by her aunt, who ran for assistance after the defendant had overcome the prosecutrix. Ella Banks was examined by a physician in the presence of some of -the neighbors shortly after-wards, and her private parts were all torn and bleeding. Other evidence was also adduced to corroborate her testimony.\nThe defendant, William Bowman, testified that he stayed all night at the home of the father of Ella Banks the night before the crime was alleged to have been committed, and left the house in company with Mr. Banks the next morning. He testified that soon afterwards he went to a saloon in Fort Smith, got drunk and does not remember anything more until he was arrested. Said that he did not remember to have gone back to the neighborhood where Mr. Banks lived on the morning in question.\nIt is proved that the crime was committed in the territory hereinbefore referred to as the \u201cChoctaw Strip\u201d in the Fort Smith District of Sebastian County.\nAfter the appeal to this court, it was discovered that the transcript did not show that the mandate of this court upon the reversal of the case on the former appeal had ever been filed in the circuit court, and that there was no judgment of the circuit court overruling the demurrer of the defendant as directed by the mandate.\nIn the case of Lafferty v. Rutherford, 10 Ark. 454, the court said: \u201cWe are clearly of .the opinion that the circuit court has no power to retry a cause which has once been brought to trial and final judgment until the same shall have been regularly reversed by this court, and that fact shall have been directly communicated by this court, accompanied with instructions to proceed.\u201d\nIn the\" case of Hollingsworth v. McAndrew, 79 Ark. 194, the court said: \u201cThe remand of the cause by this court and the filing of the mandate with the clerk of the lower court within the time prescribed by the statute gave the lower court jurisdiction.\u201d\nUpon the representation of the Attorney General that the mandate had been filed in the circuit court before it again assumed jurisdiction of the case, and that the defendant\u2019s demurrer to the indictment had been overruled, permission was given to apply to the Sebastian Circuit Court for the Fort Smith District to have the record in these respects amended.\nIn the case of Goddard v. State, 78 Ark. 228, the court, speaking through Mr. Justice Riddick, said that \u201cthe rule is established in this State that a court has authority to amend its records so as to make them speak the truth as to what was done, and may do so upon any competent legal evidence.\u201d\nIn the case of Binns v. State, 35 Ark. 118, the court held: \u201cWhere there is a change of venue, and the transcript to the court to which it is changed contains no entry showing the opening of the court from which it was changed, at the term at which the indictment was found, and no entry showing the impaneling of the grand jury, the omitted entries may be obtained by certiorari, and the transcript perfected after a verdict of guilty; and a pending motion in arrest of judgment for these omissions in the transcript be then overruled.\u201d\nIn the case of Sweeney v. State, 35 Ark. 588, the court, through Chief Justice English, said: \u201cIt is well settled in this court that the record of the circuit court may be amended, so as to make it speak the truth, in a criminal as well as a civil case, after appeal or writ of error, the prisoner in a criminal case being brought into court and the amended record brought up to this court by certiorari.\u201d\nNotice of the application to amend the record was given to the defendant\u2019s counsel, and the defendant was brought into court when the same was heard and determined. The court found that the mandate of this court, with indorsement on it by the clerk of the date of its filing, showed that it was filed in the circuit court of Sebastian County for the Fort Smith District\" on the 7th day of June, 1909. This, with the presiding judge\u2019s own recollection, he being the judge who had presided throughout all the proceedings in this case, was sufficient evidence upon which the court could base a finding that the defendant\u2019s demurrer had been overruled in accordance with the directions of the mandate, on the 8th of June, 1909, and for the entry of a judgment nunc pro tunc.\nBesides, the record was amended so as to include the mandate and the date of its filing in the circuit court, which was on June 7, 1909, a date before the day when the court again assumed jurisdiction of the case. As we have already seen, the filing of the mandate of this court in the circuit court within the time prescribed by the statute gave the circuit court jurisdiction to retry the cause; and if we treat the demurrer of the defendant as not having been acted upon, and the case as having proceeded to final adjudication without judgment on the demurrer, the demurrer will be considered as waived. Kiernin v. Blackwell, 27 Ark. 235. Then, too, the demurrer which was filed and overruled August 5, 1909, and which has been heretofore discussed, was a special demurrer, and one of its grounds also raised the question of whether the \u201cChoctaw Strip\u201d was within the jurisdiction of the Sebastian Circuit Court for the Fort Smith District. That issue was, as we have already stated, settled adversely to the defendant in -the opinion on the former appeal, which is the law of the case.\nCounsel for defendant insists that the jury was not drawn according to law. The record shows that eleven jurors were obtained before the regular panel was exhausted. At that time the State had seven and the defendant seventeen peremptory chailenges. The defendant objected to the court having one talesman at a time summoned, and asked that as many as three be summoned, in order to permit him to draw. He based his request upon section 2348 of Kirby\u2019s Digest, which provides that where the regular panel is exhausted \u201cthe court shall order the sheriff to summon bystanders to at least twice the number necessary to complete the jury, whose names shall be placed in the box and drawn.\u201d Our statutes provide that a judgment shall be reversed for prejudicial errors only. The court has held that this statute was passed for the purpose of obviating \u201cthe necessity of reversing judgments of conviction on account of mere errors of form which do not affect the substantial rights of the defendant.\u201d Lee v. State, 73 Ark. 148; Hayden v. State, 55 Ark. 342. The error in not complying with' the statute was not prejudicial in this case because the defendant selected the remaining juror and failed to exhaust his peremptory challenges. We have had occasion to pass upon the question lately in the case of York v. State, 91 Ark. 582, where our former decisions on the subject are reviewed.\nIn his opening statement to the jury, one of the attorneys for the State said that the defendant \u201chad chosen to remove the trial of said cause from the county of its alleged commission and bring the same to Scott County for trial.\u201d The court admonished him to state to the jury the facts upon which the State relied for a conviction. The attorney then withdrew the remark, and said the State wanted the defendant to have a fair and impartial trial. It is manifest that no prejudice resulted to the defendant. The court admonished the attorney, and the remark was withdrawn. Besides, the reading of the indictment to the jury and the whole testimony in the case showed that the crime, if committed, was committed in Sebastian County.\nCounsel for the defendant predicates reversal upon the action of the court in giving instruction No. 4, which is as follows:\n\u201cIf the jury find from the evidence that at the time of the alleged commission of the offense the prosecuting witness, Elia Banks, was under the age of twelve years, and that on account of her tender j^ears she was incapable of understanding the nature of the act, her consent would be no protection to the defendant.\u201d\nThe objection made to the instruction is that there was no evidence to show that Ella Banks was incapable of understanding the nature of the act. This is true; but, as she was only eleven years of age, the presumption was that she was incapable of consenting, in the absence of proof to the contrary. Coates v. State, 50 Ark. 336. Besides, there was no testimony whatever tending to show that she consented to the act.\nThe court, after correctly instructing the jury upon the subject of reasonable doubt and that they were the sole judges of the weight of the evidence, defined the manner in which a witness may be impeached. The court then gave the following:\n\u201c10. But the credibility of a witness, though his character for truth is impeached, is still a question for the jury; and if the jury believes his testimony, it should be taken and considered, notwithstanding his impeachment.\n\u201c11. If an impeached witness be corroborated, his testimony should be taken and considered by the jury, notwithstanding his impeachment.\u201d\nCounsel for the defendant urges upon us that instruction No. 11 was erroneous because it invaded the province of the jury in telling it what weight to give to the evidence. Conceding this to be true, there was no prejudice to the rights of the defendant.\nRose Frost, Ola Miller and Mary Coleman were the witnesses impeached. Their testimony was as to matters that were proved by evidence that was undisputed. The witnesses, Rose Frost and Ola Miller, testified that they went to the house immediately after the crime was alleged to have been committed, and that Ella Banks was crying; that they were present when she was examined, and detailed the result of the examination. Their statement was the same as that of the other witnesses who testified in regard to the same matters, and there was no contradiction to the testimony.\nMary Coleman testified that she saw the defendant going towards the Banks house on the morning in question, and- that he had a bottle of whisky, and said that he was going to stop -in there (meaning the Banks house) and \u201cget a maidenhead.\u201d This was also testified to by Steve Frost, and was not disputed by any other fact or circumstance adduced in evidence.\nThe sole defense of the defendant was that he became so drunk on the morning that he did not remember anything that occurred. He made no attempt to account for his whereabouts at the time the crime is alleged to have been committed. The only testimony adduced in his behalf except his own as to his drunkenness was that of witnesses to the effect that he had previously borne a good reputation. This defense was submitted to the jury under proper instructions. As above stated, there was ample evidence to sustain the verdict of the jury.\nWe have carefully examined the record, and find no prejudicial error therein. The judgment is therefore affirmed.", "type": "majority", "author": "Hart, J." } ], "attorneys": [ "C. T. Wetherby, for appellant.", "Hal L. Norwood, Attorney General, and C. A. Cunningham, Assistant, for appellee." ], "corrections": "", "head_matter": "Bowman v. State.\nOpinion delivered December 20, 1909.\n1. Appeal and error \u2014 former decision. \u2014 The decision of the Supreme Court upon a former appeal is the law of the case. (Page 169.)\n2. Statutes \u2014 clerical mistake. \u2014 Where the act of Congress ceding the territory called the \u201cChoctaw Strip,\u201d adjoining the city of Port Smith, to the State of Arkansas, and the acts of Arkansas accepting such grant, describe the land ceded by permanent lines so that its location may be understood, a mistake in the particular description of the strip, using the word, \u201ceast\u201d instead of west, was a merely clerical error, and will be disregarded. (Page .170.)\n3. Appeal and error \u2014 amendment of record. \u2014 The record in a felony case may be amended in the circuit court, so as to speak the truth, after an appeal or writ of error has been prosecuted; the prisoner being brought into court and the amended record brought up to the Supreme Court by certiorari. (Page 172.)\n4. Jury \u2014 selection\u2014prejudice.\u2014It was not prejudicial error, where 11 jurors had been obtained from the regular panel, to order one tales-man at a time to be summoned, instead of summoning twice that number, as required by Kirby\u2019s Digest, \u00a7 2348, if appellant did not exhaust his peremptory challenges. (Page 173.)\n5. Rape \u2014 consent\u2014instruction.\u2014It was not error to instruct the jury in a rape case that if the prosecutrix was under the age of 12 years she was incapable of understanding and consenting to the sexual act, even though there was no evidence as to her understanding the nature of such act, as the law in such case presumes that she was incapable of consenting, in the absence of proof to the contrary. (Page 174.)\n6. Witnesses. \u2014 impeachment\u2014instruction.\u2014An instruction to the effect that the testimony of an impeached witness should be considered by the jury, if they believe it, or if it he corroborated, w-as not prejudicial where the facts to which the impeached witnesses swore were established by other and uncontradicted witnesses. (Page 173.)\nAppeal from Scott Circuit Court; Daniel Hon, Judge;\naffirmed.\nC. T. Wetherby, for appellant.\nThere was error in drawing the jury. Kirby\u2019s Dig., \u00a7 2348; 74 Tex. 287; 11 S. W. 1117; 45 Cal. 323; 80 Ill. 251; 70 Miss. 554; 12 So. 582. There was error in the remarks of the prosecuting attorney. 24 Tex. App. 433; 6 S. W. 540; 6 Tex. App. 19; 24 Mo. 475; 90 N. C. 688; 126 Ill. 150; 18 N. E. 817.\nHal L. Norwood, Attorney General, and C. A. Cunningham, Assistant, for appellee.\nThe proceedings of the court are presumed to have been regular. 72 Ark. 590. Appellant cannot complain here for the first time that the demurrer was not overruled. 73 Ark. 407; 76 Ark. 280. The description of land in the act is sufficient. 115 Ill. 463; 66 Cal. 15; 78 Ala. 119; 92 N. C. 172; 8 Allen 214; End. on of Stat., \u00a7 \u00a7 27, 28, 39, 298-to 302. The word \u201ceast\u201d will be construed \u201cwest\u201d when it is evident that it was so intended. 61 Wis. 215. There was no error in drawing the jury (19 Ark. 156) for appellant had not exhausted his challenges. 30 Ark. 328; 35 Ark. 639; 45 Ark. 165; 69 Ark. 322; 50 Ark. 492. The error in the prosecuting attorney\u2019s remarks was cured b.y the court. 75 Ark. 246; 75 Ark. 437; 65 Ark. 475." }, "file_name": "0168-01", "first_page_order": 190, "last_page_order": 198 }