Opinion
No. 4729
Opinion delivered April 27, 1953.
1. CARNAL ABUSE — EVIDENCE. — Where appellant's signed confession was introduced in evidence, the victim, a girl 13 years of age, was called as a witness for the defense and she admitted the crime charged had been committed, the evidence, together with the testimony of the physician who examined the victim, was sufficient to sustain the verdict. 2. CRIMINAL LAW — MOTION FOR INSTRUCTED VERDICT. — Where appellant, instead of standing on his motion for a directed verdict, gave additional testimony, the sufficiency of the evidence will be determined from all the evidence and not just that portion which had been presented when his petition was filed. 3. CRIMINAL LAW — INSTRUCTIONS. — There is no error in refusing requested instructions where the ground is covered by others which are given.
Appeal from Baxter Circuit Court; John L. Bledsoe, Judge; affirmed.
Tom Gentry, Attorney General, and Thorp Thomas, Assistant Attorney General, for appellee.
The appellant was charged with, and convicted of, the crime of carnal abuse (41-3406 Ark. Stats.). The motion for new trial contains seven assignments, which we group and discuss;
I. Sufficiency of the Evidence. Assignments 1, 2, and 3 present this issue. The age of the girl was shown to be 13 years, and a physician testified as to a physical examination of her. Appellant's signed confession was introduced as to the crime charged. The girl was called as a defense witness, and admitted the crime had been committed by the appellant The evidence is sufficient to sustain the verdict. See Wadlington v. State, 216 Ark. 914, 227 S.W.2d 940; and Clack v. State, 213 Ark. 652, 212 S.W.2d 20.
II. Instructed Verdict In Assignment No. 6, the appellant complains of the refusal of the Court to give an Instructed Verdict at the close of the State's case. The appellant did not stand on his motion: instead, he offered evidence which, with the other evidence, was sufficient to sustain the conviction, as we stated in Topic I.
Our cases hold that when the defendant offers evidence after the refusal of such a motion, then the sufficiency of the evidence is determined by all of the evidence, and not merely that portion which has been presented when the motion was denied. Grooms v. Neff, 79 Ark. 401, 96 S.W. 135; Ft. Smith Cotton Oil Co. v. Swift Co., 197 Ark. 594, 124 S.W.2d 1; Rice v. Moudy, 217 Ark. 816, 233 S.W.2d 378. While the cited cases are civil cases, the same rule applies in criminal cases. See Robins v. U.S., 8th Circuit, 262 F. 126; and see also Annotation in 17 A.L.R. 925, where cases from many jurisdictions are cited to sustain the statement:
"In jurisdictions where it is held to be the duty of the court, in a proper case, to direct an acquittal, it is the general rule that, if the entire evidence is sufficient to sustain a conviction, the introduction of evidence by the defense, after the court has refused to direct a verdict of acquittal at the close of the prosecution's case, amounts to a waiver of the motion to direct."
III. Instructions. In Assignments 4 and 5, appellant complains of the refusal of the Court to give his requested instructions Nos. 1 and 2; and in assignment No. 7, appellant complains of the action of the Court in giving instruction No. 7. Our study discloses that instruction No. 7 covers the same matter as the refused instructions. There was no error in the Court's rulings regarding any of these instructions.
Affirmed.