Watt v. State

261 S.W.2d 544, 222 Ark. 483, 1953 Ark. LEXIS 823

• Court: Supreme Court of Arkansas
• Decided: October 19, 1953
• Docket: 4749
• Status: Published

Opinions

J. Seaborn Holt, J.

On an indictment charging a violation of the Carnal Abuse Statute (§ 41-3406, 1947), appellant was found guilty and his punishment fixed by the jury at a term of four years in the State Penitentiary. This appeal followed.

Appellant, a thirty-eight year old white man, and the father of a five year old child, was employed as a gasoline truck driver. On December 21, 1952, Dolly Lou Brown, a little seven year old colored girl, and her three year old cousin, William Anthony, were walking down U. S. Highway 165 near Parkdale, Arkansas. Watt was in his truck on the side of the road. While Dolly Lou and her cousin were passing the truck, Watt called her over to him and pulled her into the truck. Then he put his hand on her vulva, and inserted his finger into her vagina, thereby rupturing her hymen, and causing her to bleed. Her testimony relative to the insertion was corroborated by Dr. A. E. Cone. In fact, the evidence appears not to be in dispute. The primary and decisive question presented is whether the lewd and lascivious acts,.which appellant committed, are punishable under the above section.

The indictment charged: ‘ ‘ The Grand Jury of Ashley County in the name and by the authority of the State of Arkansas accuse Jesse Watt of the crime of Carnal Abuse committed as follows, to-wit: The said Jesse Watt in the county and state aforesaid, on the.........day of December A. D. 1952, did have carnal knowledge and did abuse sexually Dolly Lou Brown, a female under the age of sixteen years,” etc.

The above § 41-3406 on which it was based, provides: “Every person convicted of carnally knowing or abusing unlawfully, any female person under the age of sixteen (16) years, shall be imprisoned in the penitentiary for a period of not less than one (1) year nor more than twenty-one (21) years.”

For reversal, appellant says: “A. The court erred in not directing a verdict for the defendant. B. Insufficiency of the evidence to sustain a conviction of carnal abuse. C. The court erred in refusing to give defendant’s requested instructions Nos. 1 and 3.”

A. SB.

At the close of the State’s case, appellant offered no evidence, but rested, and in his requested Instruction No. 1 asked for a directed verdict of not guilty, insisting that the evidence was not sufficient to warrant a conviction. This request was denied. It appears that this court has never had before it for consideration a similar situation as is presented by this case.

Appellant earnestly insists that since no act of sexual intercourse took place or was attempted by him, he could not be convicted under the above section of the statute. We do not agree.

While it is true that the crime of “abusing unlawfully” is included in the crime of carnal knowledge, it does not follow that carnal knowledge is included in the term ‘ ‘abusing unlawfully” as used in the statute. If the word “carnal” was intended by our lawmakers to be included in the term “abusing unlawfully,” why was it omitted? We hold that the act by its plain terms covers two distinct offenses. First, it makes unlawful, and punishable, carnal knowledge, or sexual intercourse, with immature girls, which requires actual penetration of the vagina by the male organ. In the second place, the act goes further and makes “unlawfully abusing” such child, by sexual acts, short of actual sexual intercourse, also an offense and punishable. This is the exact situation presented in this case — and we hold the evidence was ample to sustain the jury’s verdict of guilty.

On testimony similar in effect to that presented here, the Supreme Court of Alabama in Lee v. State, 21 Ala. App. 91, 13 So. 2d 583, held that this type of unlawful abuse was punishable under a statute which provided: “Any person who has carnal knowledge of any girl under twelve years of age, or abuses such girl in the attempt to have carnal knowledge of her, shall, on conviction, be punished, at the discretion of the jury, either by death or by imprisonment in the penitentiary for not less than ten years.” In that case the defendant went to a female child’s bed, put his hand on her private parts and “hurt” her. Medical testimony showed that the girl’s genital organs had been seriously abused. No claim was made that the defendant had actual carnal knowledge of the girl. . As in the case at bar, there was nothing more than an abuse of the girl’s genital organs by the finger of the defendant. The Court, affirming the conviction, observed: “The crime may be committed without any contact of the genital organs. The principal is illustrated by this quotation from Dawkins v. State, 58 Ala. at page 379: ‘It is said that often the chief injury to the child results from the use of the fingers of the male.’ ”

It will be noted that this Alabama statute appears even stronger in favor of appellant’s contention here than our own statute above. Where our statute uses the words “abusing unlawfully,” (omitting, as we have indicated, the word “carnal” from the sentence), the Alabama statute provides ‘ ‘ or abuses such girl in the attempt to have carnal knowledge of her,” making carnal knowledge one of the ingredients of the offense.

We think the case of Curtis v. State, 89 Ark. 394, 117 S. W. 521, relied upon by appellant, is distinguishable. There it was undisputed that the defendant had carnal knowledge of the girl in question. It was there said that “carnal abuse and carnal knowledge, as used in the statute, are synonymous terms,” but we did not say that “abusing unlawfully” a female under the age of sixteen years was synonymous with carnally knowing or carnally abusing sucb female.

C.

Appellant next argues that tbe court erred in refusing to give Ms requested Instructions 1 and 3. No. 1 was, as indicated, a request for an instructed verdict of not guilty and was properly refused. There was also no error in refusing Instruction No. 3, which provided: “You are told that the essential elements of the crime of carnal abuse, as charged in this case, are sexual intercourse and the age of the prosecutrix. The terms ‘ carnal knowledge ’ and ‘carnal abuse’ as used in the statute, are synonymous terms and mean sexual intercourse. The state must prove beyond a reasonable doubt that the defendant did have sexual intercourse with Dolly Brown, and that the said Dolly Brown was at that time under the age of sixteen years. And, upon the whole case, you entertain a reasonable doubt that the defendant had sexual intercourse with the said Dolly Brown, or that she was under the age of sixteen years at the time of said act of sexual intercourse, then you should find the defendant not guilty.”

This instruction was not a correct declaration of the law under our views above expressed. The court on its own motion correctly declared the applicable law on the facts presented in the following instructions:

“No. 3. — Every person convicted of carnally knowing or abusing unlawfully any female person under the age of sixteen years shall be imprisoned in the state penitentiary for a period of not less than one year nor more than twenty-one years. * * * No. 5. — If you find from the evidence in this case and beyond a reasonable doubt that the defendant, Jesse Watt, in this county and state within three years prior to the 21st day of December, 1952, did carnally know (or abuse unlawfully) Dolly Lou Brown, a female person then under the age of sixteen years, as charged in the indictment, you will find the defendant guilty,” etc., and in No. 6: “Unless you find from the evidence beyond a reasonable doubt that * * * defendant, Jesse Watt, did carnally know (or abuse unlawfully) the said Dolly Lou Brown, a female person then under the age of sixteen years, you will find the defendant not guilty.”

We have not overlooked other assignments of alleged errors (not argued here by appellant) but find each to be untenable.

Affirmed.

Justice McFaddin concurs.