dissenting. The majority overrule Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983), and hold that rape by sexual intercourse and rape by deviate sexual activity are the same crime and involve the same elements of proof. I cannot agree with that rationale.
The crime of rape by deviate sexual activity is a neuter gender crime. Either a male or a female can be the victim or the perpetrator of the crime. It includes homosexual conduct as well as most types of unnatural heterosexual conduct. Ark. Stat. Ann. § 41-1801 (Supp. 1985).
The crime of forcibly engaging in sexual intercourse is a separately defined crime and is limited to the heterosexual act of penetration of a vagina by a penis. Ark. Stat. Ann. § 41-1801(9) (Supp. 1985).
The acts are not of the same general character, and rape by sexual intercourse does not contain all of the elements of rape by deviate sexual activity. Thus, they are two separate crimes. Correspondingly, the charge of rape by sexual intercourse filed in this case did not include the charge of rape by deviate sexual activity. Under the instructions given, the appellant may stand convicted of rape by deviate sexual activity, a charge not made. Conviction upon a charge not made is a sheer denial of due process. Thornhill v. Alabama, 310 U.S. 88, 96 (1939).
Of course, the appellant may well have been found guilty of the crime with which he was charged. However, the conclusion does not follow that the case should be affirmed, for the appellant may just as well have been found guilty of the crime with which he was not charged, and that would constitute the denial of due process. Since it is impossible to determine from the general verdict of guilty the crime for which appellant was convicted, the conviction cannot be upheld. Stromberg v. California, 283 U.S. 359, 368 (1931). An appellate court should not speculate on which charge a defendant was found guilty in order to uphold a conviction.
Newbern, J., joins in this dissent.