Where the passion of lust that prompts rape exists, or if there is an absence of that moral sense of responsibility which supplies the social balance — in either extreme it is sometimes contended that baseness alone is proof of mental incapacity. It is therefore said of the criminal that when extenuation fails, and he becomes convinced that denial and explanation must fall under a compact factual structure, there is recourse to a plea called insanity. It is a defense wholly appropriate in meritorious instances; but at the same time it is one so habitually invoked that courts should not be impulsively swayed by that psychic philosophy which has for its foundation the flimsy premise that reprehensible conduct alone is its own proof that intent was lacking.
Poole's crime is considerably lower and more sordid than rape as the word is ordinarily applied. Hilda, his own daughter, was thirteen years of age just four months before the crime was perpetrated. It was not the father's first attempt. Whether entirely successful on previous occasions is a matter of conjecture, depending upon construction to be given Hilda's testimony and that of a physician who physically examined her. When the outrage occurred the night of April 13, 1945, Hilda lived with her parents in a cottage near the St. Francis Levee District's building in West Memphis. Shortly after nine o'clock the father, who had been drinking (but according to officers was not drunk) directed Hilda to go with *Page 756 him. He took her by the arm and guided their course to a secluded spot approximately three hundred feet from the residence . . . . Mrs. Poole, near death from tuberculosis, heard her daughter screaming; and, suspecting in treatment, telephoned for officers. Two arrived within ten minutes. They, also, heard the little girl crying and screaming. One of the men directed his flashlight to a break in the hedge. It is sufficient to say that the position of father and child as observed by the deputies, the absence of essential clothing covering either, and information gained by Holland and Burrow as they observed the unspeakable transaction, were enough to convince the jury even if the transaction had been denied; but it was not.
Hilda testified that she had been beaten, threatened with death, and in other respects intimidated. She also testified that later, in Mississippi, and again in Kansas City, the same course of conduct was pursued after the law's protection had failed. A more pathetic story is seldom heard.
The judgment is reversed because, as the majority believes, prejudice resulted when admissible evidence was excluded from the jury. As a matter of fact the evidence was not excluded.
The adjudication of February 18, 1946, affirmatively discloses that the judgment rested upon a report by Dr. A.C. Kolb, then Superintendent of Arkansas State Hospital, and the statement of Poole's attorney, who said Dr. James R. Falls had examined the defendant. It was the belief of the Superintendent and Dr. Falls that Poole was then non compos mentis, and had been at the time the rape occurred. The attorney's statement was, of course, nothing but hearsay. Dr. Kolb's report was official.
It subsequently developed that Poole was not insane. Witnesses who observed him and who had done business with him did not in any respect discount his mentality. *Page 757
In the meantime, between the February, 1946, judgment and trial in September, 1947, Poole remained in State Hospital but a short time.
Mrs. Poole, emaciated and virtually helpless when Hilda's pleading cries prompted the call for help in April, 1945, had died. The unnatural father's explanations to Hilda when he returned to Mississippi and before the motherless family moved to Missouri, was that it was "her fault — your fault that they put me in jail."
Dr. Kolb was succeeded as Hospital Superintendent by Dr. G. W. Jackson. Both testified at the trial that resulted in Poole's conviction. Dr. Kolb was called by the defendant. His qualifications were readily admitted by Prosecuting Attorney James C. Hale. As the majority opinion discloses, Dr. Kolb's report upon which error is now predicated was before the jury, all details available for discussion; and it was discussed, commented upon, read from, and explained from every angle the defendant might have wished. But unfortunately for Poole, Dr. Kolb very frankly told the Court, when questioned by Judge Harrison, that in his opinion the defendant, when he raped Hilda, probably knew the nature and quality of the act he was doing, and may have known that it was wrong. Other witnesses were certain the accused was sane at the time of the act, and at trial. So a factual issue was presented and the jury found against Poole. The judgment is being reversed because, as it is said, the jury was erroneously instructed to disregard the adjudication of 1946.
The majority opinion cites McCully v. State, 141 Ark. 450,217 S.W. 453, and says it is "directly in point." Perhaps so; but I do not see the point. In that case there had been an adjudication of insanity by the Probate Court, where by Art. VII, Sec. 34, of the Constitution, exclusive original jurisdiction in matters relative to persons of unsound mind and their estates is vested. But see Amendment No. 24 to the Constitution.
In the McCully opinion Mr. Justice WOOD relied upon Eagle v. Peterson, 136 Ark. 72, 206 S.W. 55, *Page 758 7 A.L.R. 553, where also the adjudication of insanity was by the Probate Court. Judge HART, who wrote the Eagle-Peterson opinion, declared the true rule to be that an adjudication of lunacy is not conclusive, but only prima facie evidence; and, he added, in criminal cases the record of inquisitions of lunacy or insanity is competent to go to the jury as evidence on that issue, but the weight of such evidence is for the jury.
In the case at bar the evidence went to the jury. There was no instruction, that any part of Dr. Kolb's testimony be excluded. In it, (responding to the subpoena or call) he discussed every essential of the former report, told how he arrived at conclusions, what the weight of medical evidence was; and he told the jury how difficult it was for one to express in a written report the fine shade of meaning he was orally undertaking to convey. Nowhere in Judge Harrison's instruction did he tell the jury to disregard one word of Dr. Kolb's report. His reference was to court orders — one in 1946, and the other made as a preliminary in anticipation of the plea of insanity.
Every element upon which Judge Killough's judgment was based was before the jury, except the defendant's attorney's construction of what Dr. Falls said he had found, and would tell somebody else if asked.
Judge WOOD, in the McCully case, and Judge HART, in Eagle v. Peterson, characterized an adjudication of insanity as prima facie evidence to which the jury was entitled for what it was worth. In St. Louis-San Francisco Railway Co. v. Cole, 181 Ark. 780, 27 S.W.2d 992, Mr. Justice MEHAFFY, in writing for a unanimous court, said that where by statute mere proof that an injury was caused by the operation of a train, there was a presumption of negligence, yet nevertheless this presumption disappeared when evidence in contradiction was introduced. See, also, Missouri Pacific Railroad Company v. Beard, Adm'r., 198 Ark. 346, 128 S.W.2d 697. Prima Facie evidence creates merely a temporary indifference of fact that vanishes when in conflict with reality. Western A.R.R. Co. v. Henderson, 279 U.S. 639, 49 S. Ct. 445, 73 L. Ed. 884. *Page 759
The whole effect of Judge Harrison's instruction was that the adjudication of 1946 and the fact that the defendant had later been sent to State Hospital for observation, were not to be regarded by the jury as officially binding orders. Had the defendant's counsel experienced surprise at Dr. Kolb's reply to the Court's direct question, counsel had the right to say so and to treat Dr. Kolb as a hostile witness, calling for the report for use in cross-examination and if necessary for impeachment purposes. Nothing of the kind was done, or hinted at.
Even if it should be conceded that by strictest rules of procedure the orders were admissible, it would still place too great a stress upon one's imagination to say that in the case at bar Poole's constitutional or statutory rights were prejudiced by a verbal exclusion of things that in effect had merged with something else, and the substituted facts were at hand.