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Perkinson v. State

Supreme Court of Arkansas
Jun 7, 1943
172 S.W.2d 18 (Ark. 1943)

Opinion

No. 4302

Opinion delivered June 7, 1943.

1. CRIMINAL LAW — ASSAULT WITH INTENT TO RAPE. — Where testimony of the prosecuting witness (who said she was raped), and testimony of the defendant (who admitted having attempted to have sexual intercourse with the prosecutrix) was at variance, it was for the jury to determine which of the two should be believed. 2. CRIMINAL LAW — INSTRUCTIONS. — It was not error for the court to instruct that "A person can be guilty of assault with intent to rape if he assaults a female with intention of having carnal knowledge of her forcibly and against her will, even though after the assault is made, she finally yields to his embraces and consents to the sexual intercourse. Such subsequent yielding and consent, if any, does not mitigate or justify the assault with intent to commit the crime."

Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge; affirmed.

G. C. Hardin and David L. Ford, for appellant.

Guy E. Williams, Attorney General, and Earl N. Williams, Assistant Attorney General, for appellee.


A jury convicted appellant (twenty-six years of age, and married) of assault with intent to rape. The transaction occurred in a taxicab operated by appellant. The prosecuting witness, eighteen years of age, was a passenger. She testified that the cab was driven to a secluded spot where appellant undertook to satisfy his sexual propensities.

The subject of the assault testified to facts which, if true, would constitute the crime alleged in the information. There was corroboration, including uncontradicted evidence that the accusing party called from the cab to a passing motorist, who was accompanied by others. They took the girl home. She immediately preferred charges. Appellant admitted he endeavored to persuade the prosecuting witness to cooperate in the satisfaction of his desires, and said he thought she had consented.

Facts are in sharp conflict; hence, it was for the jury to determine where credibility lay. It follows that the first point relied upon for reversal — that testimony is insufficient — fails.

It is next contended that Instruction No. 2, given on the court's own motion, was erroneous in that there was no testimony upon which it could be predicated. Inferences to be drawn from the girl's narration were sufficient, we think, to justify the declaration that "A person can be guilty of assault with intent to rape if he assaults a female with intention of having carnal knowledge of her forcibly and against her will, even though after the assault is made, she finally yields to his embraces and consents to the sexual intercourse. Such subsequent yielding and consent, if any, does not mitigate or justify the assault with intent to commit the crime."

Paxton v. State, 105 Ark. 316, 157 S.W. 396.

Affirmed.


Summaries of

Perkinson v. State

Supreme Court of Arkansas
Jun 7, 1943
172 S.W.2d 18 (Ark. 1943)
Case details for

Perkinson v. State

Case Details

Full title:PERKINSON v. STATE

Court:Supreme Court of Arkansas

Date published: Jun 7, 1943

Citations

172 S.W.2d 18 (Ark. 1943)
172 S.W.2d 18