302 BROCK v. STATE. [168 / BRo6k v. STATE. 7 • Opinion ,delivered March 23,1925. li 1. - R A.i. i—AssAurir WITH INTENT TO RAPE—EVIDENCE. E .i ridence held 1 1 stifficient to Support a Conviction . for assault With iritenVtO rapes 2. •11:Art—INsTauctiON. In a prosecution for assault with intent to • rape, an instruction that defendant would be guilty of • aSsault • with intent to rape if the prosecuting witness rejected his . advances, or if he made such advances in a lascivious . way without her consent, was erroneous, since to convict, the jury must find that he intended to overcome her resistance by force or intimida-. tion.'' . . . - Appeal . from Crawford Circuit Court ; Ames Coch-rain, Judge ; reversed. • • ) )
ARK ] BROCK V. STATE. -303 W. H. Neal and C. M. Wofford, for appellant. H. W. Apple ,gate, Attorney General, and John L. Carter, Assistant, for appellee. HART, J. Bert Brock was convicted before a jury of the crime of assault with intent to rape, and his punish-. .inent fixed at three years in the State Penitentiary: The 'case'is here on appeal. The first assignment of error of appellant is that the evidence' is not- legally sufficient to support the verdict. • Bessie Dobbs was the prosecuting witness, and .was eighteen 'years of age at the time she claimed that Bert Brock made the alleged -assault upon -her in Crawford County, Arkansas. According to her testimonY, in November,',1923, she „was carrying the mail: Trom Rosedale to Evansville, in Crawford County, Arkansas. She said. that she knew Bert Brock and Clay Cusick. We quote Trom.her testimony the- following : "Q. They are charged here with making an assault upon you about the 5th of November; tell the jury what happened. A. I carried the mail When.I got back'to Odell, Bert and Clay were standing out there; and' when 'I stepped back to the door they were going off down the road, and when the postmaster got the mail fixed up, I took it -and went out and put it on the horse and started on. I got down the trail; they were both sitting there on a log, and . when I saW them I started to run bY them, and, Bert run and caught the horse's rein, and .Bert said, 'Get off of there, and I said, won't do it,' and he said, 'Get off of there and jazz,' and I hit him, and he hit me just as hard as he could on . the leg, and' turned . me loose, 'and I told him I was going to tell on them, and they said they did not give a damn what I told. Q. Tell the jury how he took hold of you. A. He tried to u11 me off. Q. Did he try to pull you off? A. He just thld me to get off and jazz with him. They had a gun. . Q: What kind of a gun was it? A. Some kind of a shotgun. Q. You hit him with a switch? . A. Yes sir. Q. Was it then he turned you loose? A. He turned the 'horse
304 BROCK V. STATE. [168 loose when he wag pulling on. me, but Clay had hold of the reins ; ,Was anybody with you? A. I was by myself." Howard White,,, a boy fourteen years old, testified that he knew . Bert Brock and Clay Cusick. He was on the porch of ,tho building in which the postoffice was kept at Odell, at the time it is charged that they made an assault upon Miss Bessie Dobbs. , He heard them say that they , were going down the road . and hold the girl up. This testimony, if believed by the jury, was sufficient to:warrant the verdict. Our statute provides that' whoever shall feloniouSly, wilfully and with malice aforethought assault any person with intent to commit rape shall,' on Conviction, be iniprisoned in the penitentiary not ',less. than: three nor more•than twenty-'one years. . :in-construing this`: statute thiS Court has 'held:that a 'conviction •or. an . :assault with intent •to coinmit rape will be set aside 'where . the . evidence fails to , show that the accused:did , an'act whieh-was the !beginning or part of:the centemplated crime.. Anderson v. State, 77 Ark. .37, :and 'McDonald. v. State,. 160 Ark. 185. . , The , testimony, of the prosecuting Witness tends to , show th.at Bert Brock and his companion had a. gun, and that. Brock stopped and attempted to drag her from her horse. She hit:him with her whip, and he hit her just as hard as he:coUld on the leg: . He had:demanded . that she get . off of her horse and "jazz" with him. : The jhry. might 'have inferred, from this testimony that he ,was*.guilty • of. something more than an intent or preparation to commit the alleged crime. The circumstances detailed showed the beginning of . an attempt to rape the-prosecuting witness, and that the unlawful attempt wag coupled with the present ability to' do the ihjury. Therefore the 'assault was complete. „The next kssignment of error is that the court erred giving instruction No. 3' to the jhry, which reads as follows : . , "If he put his hands upon her; and 'she objected Or rejected his advances, or if he did it in a lascivious way,
:BnocK V. STATE.; 305 \ without her consent, then he would be guilty of assault. The first thing you have to determine is whether he is guilty of aSsaUlt fo Taiie, and then for you to determine whether, he is guilty of any, grade of assault." In Mstruction No. 2 the 'court . had gone into the „ , ingredients necessary to constitute the Crime. A specific ■) objection W ._ a s . m , , a de • 'tO in g tr , uCt „ , i bii. 'NO: 3 on the ground that it tended to leave thei . M , Pre , ssi . o n on the jury that, if 1 1 Bert Bropk laid his hands on the prosecuting witness in a i s lascivious way,.without her.consent, they might find him , -guilty . . of an assault with, intent to rape. ,NVe think the instruction' is open to the construction Waded 'upon it,'and ne'cessarily cOnStituted prejudicial erret to the rights':of appellant. 'In a piosecutiOn for ass'aiilt With intent to raPe, force is a necessary element of the crime. It is necessary for the jury to find that the ,S - acCused. intended , to'use whatever forCe was necessary to overcome the prosecuting witness . and 'have sexual intercourse with her, and that he intended to use as much \ ,force: as , would , he, necessary to, aecomplish that purpose and oyercorne fier resistp,nce. Paul,y. State, 99 Ark.-558 ; .Kindl,e,v. State,J65 Ark. 284. 0,i course, if the circum- stances of the case shew that , the woman was put in fear ( of death or bodily harm to, such an extent that she was PROle,t9 resist,.this , w p nid Se. e,quiValent to force.. , • k This,:instruction . was erroneous because- it told the l 1 „jury ;that the defendant Would he guilty of ass „ a u • lt with intent to rape if the prosecuting witness rejected, his i advances, or, if he . rnade , such advances in.a lascivious Way without her consent. This left out ,of consideration the C\ -question .of. force. , : , therefore, for the error in giving instruction No.
3 over the specific objections .of.apoellant, the judgment k• must be reversed, and the cause will be remanded for a I new triat I/ , % ik
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.