Norton v. State , 237 Ark. 783 ( 1964 )

George Rose Smith, J.

The appellant, aged nineteen, ivas charged by information Avith having raped a girl under the age of sixteen. The jury found him guilty of the lesser offense of carnal abuse and fixed his punishment at three years imprisonment.

There is no real 'question about the sufficiency of the eAÚdence. The accused admitted the act of intercourse but testified that it took place AAdth the cooperation and consent of the prosecuting AATitness. According to the proof she Avas then only fifteen years old; so her consent Avould not be a defense to the charge of carnal abuse. Ark. Stat. Ann. § 41-3406 (1947); Reed v. State, 175 Ark. 1170 (mem.), 299 S. W. 757.

It is insisted that the trial court erred in allowing the mother of the prosecutrix to state her daughter’s age, the objection being that the child’s birth certificate would be the best evidence. This identical contention was rejected in Tugg v. State, 206 Ark. 161, 174 S. W. 2d 374.

At the pretrial conference counsel for the accused asked for the names of the State’s witnesses. The prosecuting attorney supplied all the names except that of Katy Thompson, whose name he could not recall. He explained, however, that she lived in a certain neighborhood, that A. W. Keith, a deputy sheriff, knew her name, and that he (the prosecutor) would furnish the name when he returned to his office. In fact, however*, the prosecuting attorney overlooked the matter of communicating the requested information to the defense attorney before the trial. Even so there was no error in permitting Katy Thompson to testify, for the defense could have learned her identity simply by making a telephone call to the prosecuting attorney or to Keith. In the circumstances it cannot be said that the State unfairly produced a surprise witxxess.

The court was right in allowing Keith to relate an oral confession that was made to him by the accused. Under our holding in Finn v. State, 127 Ark. 204, 191 S. W. 899, this oral 'confession was not rendered inadmissible by the fact that a different confession, made several days later to a deputy prosecuting attorney, was reduced to writing. Moreover, on the witness stand Norton in substa-nce coxxceded the truth of his admissions to Keith.

We fiixd xio merit in any of the appellant’s assignments of error.

Affirmed.