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Dissenting Opinion
McFaddin

ED. F. MCFADDIN, Justice (dissenting).

I.
Failure to Instruct on Life Imprisonment

I agree that the record in this case fails to show that the Jury was instructed regarding life imprisonment; and this case, on that point, is ruled by the case of Webb v. State, 154 Ark. 67, 242 S. W. 380, and Smith v. State, 205 Ark. 1075, 172 S. W. 2d 249. Therefore, I am convinced we should do here as we did in the cited cases; and this should be our direction, as quoted from Webb v. State, supra:

"The sentence of death . . . will be set aside, and the sentence reduced to imprisonment for life in the State Penitentiary at hard labor, unless the Attorney General elects, within two weeks, to have the judgment reversed and the cause remanded for a new trial."

II.
Proof of Other Acts of a Similar Nature

But I most earnestly dissent from all that part of the majority opinion which holds that the Trial Court committed error in admitting evidence of Alford's attempt to rape Mrs. Austin. Such evidence was entirely competent under the Instruction given by the Trial Court, as hereinafter quoted.

The majority opinion correctly states that the prosecution in any criminal case cannot prove the commission of the crime in question by the proof of the commission of other offenses of a similar nature; but such was not attempted to be done in the case at bar. That the evidence of the attack on Mrs. Austin was not admitted for such purpose is clearly shown by the Instruction which the Trial Court gave to the Jury, and which reads:

"The Court has admitted testimony of another offense similar to the one charged in the information. You will not be permitted to convict the defendant upon such testimony. Evidence of another similar offense, if you believe another has been proven, is admitted solely for the purpose of showing design, particular intention, knowledge, good or bad faith, and you should consider such evidence for this purpose and for this purpose alone. The defendant is not on trial for any offense except the alleged offense against Mrs. Morman and the defendant cannot be convicted on Mrs. Austin's testimony of another possible offense."

The majority opinion says: "If other conduct on the part of the accused is independently relevant to the main issue—relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal—then evidence of that conduct may be admissible, with a proper cautionary instruction by the Court." The Instruction copied above shows that a "proper cautionary instruction" was given in the case at bar.

The majority opinion admits that in some cases, proof of other acts of a similar nature is admissible as bearing on the "knowledge, intent or design"; and the majority opinion cites at least eight situations in which other acts of a similar nature have been held to be admissible by our cases. I take these eight situations and cases from quotations in the majority opinion:

  1. ". . . in trials for incest or carnal abuse the State may show other acts of intercourse between the same parties. Adams v. State, 78 Ark. 16, 92 S. W. 1123; Williams v. State, 156 Ark. 205, 246 S. W. 503."
  2. "Again, where the charge involves unnatural sexual acts proof of prior similar offenses has been received. Hummel v. State, 210 Ark. 471, 196 S. W. 2d 594; Roach v. State, 222 Ark. 738, 262 S. W. 2d 647."
  3. ". . . in the cases involving guilty knowledge . . . cases involving forgery, counterfeiting, false pretenses, knowledge that an establishment is a gambling house, and many other situations. Cain v. State, 149 Ark. 616, 233 S. W. 779; Holden v. State, 156 Ark. 521, 247 S. W. 768; McCoy v. State, 161 Ark. 568, 257 S. W. 386; Norris v. State, 170 Ark. 484, 280 S. W. 398; Wilson v. State, 184 Ark. 119, 41 S. W. 2d 764; Sibeck v. State, 186 Ark. 194, 53 S. W. 2d 5."
  4. In those cases ". . . in that guilt involves a specific mental attitude on the part of the defendant . . . Camp v. State, 144 Ark. 641, 215 S. W. 170. The recent similar offense was directly pertinent to the issue of intent."
  5. ". . . possession of a quantity of cocaine, as bearing upon the question of whether the morphine was being kept for her own use or for sale or administration to others. Starr v. State, 165 Ark. 511, 265 S. W. 54."
  6. "Again, where the issue was whether the accused had burned a car to collect insurance, proof that he had burned other insured vehicles was competent. Casteel v. State, 205 Ark. 82, 167 S. W. 2d 634."
  7. "The State was rightly allowed to prove that the defendant had gambled in other counties . . . to show the purpose of his wanderings, . . ." Davis v. State, 109 Ark. 341, 159 S. W. 1129.
  8. ". . . the many charges of assault with intent to commit a specified crime . . . since the accused's purpose is at issue, proof of other similar offenses is independently relevant. Stone v. State, 162 Ark. 154, 258 S. W. 116; Hearn v. State, 206 Ark. 206, 174 S. W. 2d 452; Gerlach v. State, 217 Ark. 102, 229 S. W. 2d 37."

Now, in the above eight numbered categories, I have quoted directly from the majority opinion to show cases in which the majority opinion admits that evidence of other similar offenses was admissible in each instance. I submit that when the majority admits—as it has—that in the eight categories above, the evidence of other similar acts was admissible, then the majority cannot be heard to say—with any degree of consistency—that the evidence of a similar attempted rape was not admissible in the case at bar.

In category 2 above, the majority admits that "where the charge involves unnatural sexual acts, proof of prior similar offenses has been received." I submit that rape falls in the same category as that quoted, because rape is forced sexual intercourse. In Needham v. State, 215 Ark. 935, 224 S. W. 2d 785, in discussing rape and unnatural sexual intercourse, this Court (speaking through the writer of the majority opinion in the present case), said:

"The argument now is that the accused may be a sexual pervert (he was so characterized by one witness for the defense) who did not either intend or accomplish an act of intercourse. The patent answer to this suggestion is that the proof still does not show the possibility of an assault with intent to rape; for one can intend to commit rape only if he intends to have sexual intercourse with his victim."

Thus, in the Needham case, the words were "for one can intend to commit rape only if he intends to have sexual intercourse with his victim." (Italics our own.) The quoted language from the Needham case constitutes judicial recognition that intent has been recognized as being involved in the offense of rape. So, if "other acts of a similar nature" are admissible where intent is involved, then I fail to see why the attack on Mrs. Austin was not admissible in the case at bar : it was certainly another act of a similar nature to show the intent with which the appellant attacked Mrs. Morman, for which act he was being tried.

Further, I point out that when the defendant was being tried for rape in the case at bar, be was also being tried for assault with intent to rape. At defendant's request, the Court gave Instruction No. 4, which reads:

"The crime of assault with intent to rape is embraced in the information charging the crime of rape; whoever shall feloniously, wilfully, and with malice aforethought assault any person with intent to commit a rape shall on conviction thereof be imprisoned in the penitentiary not less than three nor more than twenty-one years."

Now the majority opinion says in its category 8, (supra), that in cases of assault with intent to commit a specific crime ". . . proof of similar offenses is independently relevant." Appellant asked the Court to instruct the Jury on the crime of assault with intent to rape. How can the majority say, in the face of appellant's requested Instruction which was given, that evidence of other similar offenses was not admissible on the issue of intent? I submit that the majority opinion shows that the testimony about the attack on Mrs. Austin was correctly admitted by the Trial Court.

Because I entertain the views herein expressed, I respectfully dissent.