Poole v. Arkansas Brief and Abstract for Appellant

    IN THE

Supreme Court Of Arkansas
L. C. P oole __________________ Appellant

Vs. No. 5023
State of Arkansas ------------------  Appellee

APPEAL FROM 
ST. FRANCIS CIRCUIT COURT

H on . E lmo T aylor, Cireuit Judpe

BRIEF AND ABSTRACT FOR APPELLANT

H arold S harpe 
Forrest City, Arkansas

Attorneij for Appellant

T R E V A T H A N  P R I N T I N G  C O M P A N Y .  B A T E S V IL .L E .  A R K A N S A S



I N D E X
Page

Statement __________________________  1
Points To Be Relied O n _______________  4
Information ________________________  5
Motion Of Defendant To Quash J u ry ___  5
Affidavit of Circuit C lerk_____________  7
Ruling On Motion____________________ 10
Abstract Of Testimony_______________  13

Stale’s Evidence — Testimony_______  13
Peggy Ann Gracey______________  13
Ruben Homewood ______________  15
Kenneth McDonald_______________ 21

Defendant’s Proof — Testimony_____26
Joe Willie W illiams______________ 26
Jack Ferguson __________________ 29

Mrs. Claud Jackson_______________ 30

Marvin G unn____________________ 31

Tommy Bridges _________________ 31

Dave Parkman __________________ 32

Mrs. Minnie Stevens______________ 35

Genevia Boyd __________________  37



I N D E X

Page

Dave Parkman (Recalled)_________38

Annie Rea Poole________________  38

Lee Willie E ckford______________ 39

Ruthie Mae Eckford _____________ 40

L. C. Poole____________________ 41

Defendant’s Motion To Dismiss and 
Denial of Motion ________________ __45

Defendant’s Request for Additional 
Instructions and Denial by the Court___ 46

Jury Trial and Sentence______________ 47

Motion for New T ria l________________ 49

Order Denying New Trial and
Granting Appeal _____________________51

Argument __________________________ 53

Points I and I I _____________________53

Point I I I _________________________ 67

Conclusion 71



IN THE

Supreme Court Of Arkansas
L. C. P o o l e __________________ Appellant

Vs. No. 5023
State of Ar k a n s a s____________ Appellee

APPEAL FROM 
ST. FRANCIS CIRCUIT COURT

Hon . E lmo T aylor, Circuit Judge

RRIFF AND ARSTRACT FOR APPELLANT

STATEMENT OF CASE

Appellant was charged with the crime of 
assault with intent to rape, the jury found 
Appellant guilty and set his sentence at three 
years at hard labor in the State Penitentiary.

Apparently, a jury did not accept the 
version of the facts as presented by the Ap­
pellant and his witnesses.



2
Peggy Ann Gracey, prosecuting witness, 

testified that at approximately 6:15 P. M., 
Saturday night, January 28, 1961, she was 
walking on Front Street, in Forrest City, in 
the vicinity of a viaduct, at which time a negro 
grabbed her by the throat, put one hand over 
her mouth and one arm around her neck. 
After she screamed, she was pulled under the 
viaduct. A few minutes later, two white men 
appeared under the viaduct and the negro ran. 
One of the white men chased the negro.

Peggy Ann Gracey testified that she was 
positive that no part of her body, other than 
her mouth and throat was touched by the 
negro. She stated that the negro told her she 
would be killed if she did not stop screaming. 
No demands for sexual intercourse were 
made.

After the chase, the police arrested the 
Appellant who was identified by Ruben 
Homewood, who had chased a negro for about 
five blocks. No person other than the Appel­
lant was shown to Peggy Ann Gracey, the 
prosecuting witness, for identification pur­
poses. One other person was shown to Ruben 
Homewood for identification purposes.

Appellant’s alibi was that he left his 
place of employment, Ferguson’s Drug Store,



3
at approximately 6:05 P. M., Saturday night, 
January 28,1961, picked up some cleaning and 
pressing and went home. Appellant testified 
that while he was at home he changed pants, 
ate a sandwich and then returned to a place 
about x/4 block from the drug store for the 
purpose of having his shoes shined.

Disinterested witnesses for the Appellant 
included the owner of the drug store, who 
testified positively that Appellant left the drug 
store at 6:05 P. M., and a white lady at the 
cleaners testified that Appellant secured 
cleaning and pressing prior to 7:00 P. M. 
Members of Appellant’s family testified that 
Appellant was at his home from 6:15 P. M. 
to a few minutes past 6:30 P. M.

The arresting officers and the officer at 
the Forrest City Radio Station, who received 
the first report of the alleged crime, testified 
on behalf of Appellant. The officer who re­
ceived the radio call stated that the records 
show that the alleged crime was reported at 
6:35 P. M.



4

POINTS TO BE RELIED UPON

I.

The testimony is insufficient to support 
the verdict of the jury and the lower court 
should have granted a directed verdict on the 
charge of assault with intent to rape to the 
Defendant at the close of the case.

II.

The lower court erred in its refusal to in­
struct the jury as to the penalty for assault, 
Section 41-602 and the penalty for assault and 
battery, Section 41-604, Arkansas Statutes of 
1947 Annotated.

III.

The lower court erred in denying the mo­
tion of Defendant to strike the jury of the St. 
Francis Circuit Court for the systematic ex­
clusion of negroes as jury commissioners in 
St. Francis Circuit Court and the systematic 
exclusion of members of the Negro race as 
members of the juries of St. Francis Circuit 
Court.



o
ABSTRACT

INFORMATION (Tr. 1)

The Information, dated February 6, 1961, 
filed February 7, 1961, charges L. C. Poole, 
Defendant, with the crime of assault with in­
tent to rape, alleged to have been committed 
as follows, to-wit:

“The said L. C. Poole in the County and 
State aforesaid, on the 28th day of Jan­
uary, 1961, unlawfully, wilfully and 
feloniously did assault the person of 
Peggy Ann Gracey with the intent to rape 
and ravish her, the said Peggy Ann 
Gracey.”

MOTION OF DEFENDANT TO QUASH 
PETIT JURY (Tr. 2)

MOTION OF DEFENDANT

Defendant, L. C. Poole, for his Motion 
herein states:

1. Defendant is a member of the Negro 
race. The Negro race comprises 40% of the 
population of St. Francis County, Arkansas.

2. Over a period of more than 30 years, 
members of the Negro race have been system-



6
atically excluded as jury commissioners in 
the St. Francis Circuit Court, and there has 
not been a Negro to serve as a jury commis­
sioner for more than the past 30 years.

3. Over a period of more than 30 years, 
members of the Negro race have been system­
atically excluded as members of the juries of 
St. Francis Circuit Court.

4. Said systematic exclusion over a 
period of many years, members of the Negro 
race as jury commissioners and members of 
the juries of the St. Francis Circuit Court has 
resulted in the denial of due process to De­
fendant and in the denial of equal protection 
to Defendant.

WHEREFORE, PREMISES CONSIDER­
ED, Defendant prays the present jury of the 
St. Francis Circuit Court be stricken, and that 
a jury be selected in accordance with the laws 
of the State of Arkansas and the United States 
of America.

/s /  Harold Sharpe 

Attorney for Defendant



7

AFFIDAVIT OF CIRCUIT CLERK (Tr. 3)

STATE OF ARKANSAS )
)

COUNTY OF ST. FRANCIS )

On this day comes before the under­
signed, County and Probate Clerk of St. Fran­
cis County, in and for the County and State 
aforesaid, Harold Wood, to me well known, 
who being first duly sworn, says, upon oath, 
I am and have been since January 1,1959, Cir­
cuit Clerk and Recorder of St. Francis County, 
Arkansas. I am well aware of the records of 
St. Francis County regarding the petit jury 
list setting forth the names of the jurors who 
have served on the petit jury since 1948 
through February — April 1961 Term of St. 
Francis County Circuit Court. According to 
my best knowledge of the individuals whose 
names appear on the list of petit jurors, the 
following is a list of the members of the Negro 
race who have served on the petit jury of St. 
Francis County Circuit Court, according to mg 
best knowledge of the individuals whose 
names appear on the petit jury lists



8
Year Term 
1948 March Term 
1948 March Term 
1948 March Term
1948 September Term
1949 March Term 
1949 September Term 
1949 September Term
1949 September Term
1950 Either Term
1951 March Term 
1951 March Term
1951 September Term
1952 March Term 
1952 March Term 
1952 September Term
1952 September Term
1953 March Term 
1953 March Term 
1953 March Term
1953 September Term
1954 May Term

Name of Negro 
Rev. R. J. Christmas 
Matt Curtis 
John W. Williams 
Mose Murry 
U. S. Bond 
P. H. Herring 
Isaac Smith 
C. L. Bondon 
None
Rev. E. M. Day 
Hence C. Roberts 
None
Walter Sims 
Henderson Baker 
Wallace Purifov, Jr. 
Amos Winfrey 
Jessie Miller 
Albert Parker 
Peter Turner 
Cl if fie Bond 
J. 0. Upchurch



9
1954 May Term
1954 September Term
1955 March Term
1955 March Term
1955 August Term
1956 February Term
1956 August Term
1956 August Term
1957 February Term
1958 August Term
1958 October Term
1959 February Term
1959 February Term
1959 August Term
1959 August Term
1960 February Term
1960 February Term
1960 February Term

1960 August Term

1961 February Term

Jessie Miller 
Dr. J. E. Burke 
Will Sykes 
Hense Roberts 
None 
None
Judge Turner 
Walter Hill 
Dr. E. C. Clay 
John B. Clark 
W. M. Elkins 
Oscar Stringfellow 
John Span 
Mrs. U. S. Bond 
Walter Sykes 
Cap Bohanon 
Dillard LeFlore 

Hense Roberts 

C. M. Brown 

Eugene Bovland

Subscribed in usual form



10

RULING ON MOTION TO QUASH JURY 
(Tr. 8-9)

THE COURT: Counsel for the defendant 
has filed a motion in this case alleging that 
the negro race comprises forty per cent of the 
population of St. Francis County and that 
over a period of more than thirty years mem­
bers of the negro race have been system­
atically excluded as jury commissioners of 
St. Francis County and that there has not been 
a negro serve as a jury commissioner for 
more than thirty years; that over a period of 
more than thirty years members of the negro 
race have been systematically excluded as 
members of the juries of St. Francis County 
Circuit Court.

Counsel for the defendant has stated that 
if the Court desires proof that he will offer 
proof of it.

The Court states at this time that with re­
ference to allegation No. 2, that the Court is 
well acquainted with the procedure in this 
court in this county for the past thirty years 
and that this Court will take judicial know­



11
ledge of the records of this Court and state 
that they do show that no negro has been a 
jury commissioner in this county for the past 
thirty years. However, the Court will also 
take judicial knowledge of the fact, as shown 
by the records of this court in this county, that 
over a period of thirty years that negroes 
have not been systematically excluded from 
jury service in this county, but negroes have 
been systematically included for jury duty 
for the last twelve and one-half years which 1 
have been the Judge of this court and 1 have 
named the jury commissioners and I have sat 
with the juries all of that time. There has not 
been a jury panel selected in this county with­
out including members of the negro race on 
said panel. Negroes have served on the juries 
in the trial of cases in each and every term 
of court since I have been judge of this court, 
and the records of this court will disclose that.

This court also states at this time that 
juries have never been selected in this county, 
or any other county of this district, or, as far 
as I know, any other court in the United States 
of America on the basis of population, there­
fore, the motion is overruled.



MR. SHARPE: The defendant excepts to 
the Court’s ruling, and we ask that at 
a later date for leave of the Court to 
attach to the motion a certified copy 
or copies of the jury lists for the past 
thirty years showing the number, or 
lack of numbers, of members of the 
negro race, because they are listed on 
the jury list with the small initial (c).



TESTIMONY OF WITNESSES 
STATE’S TESTIMONY

PEGGY ANN GRACEY — State’s Witness 
Testified on Direct Examination (Tr. 10-15)

I am 14 and I have lived in Forrest City 
since I was born. I left my mother at Kim­
ball’s and went up the street to go to my bro­
ther’s house, who lived on the corner in Dr. 
Rush’s house. I saw a white man I didn’t know 
while I was going east and he was going west. 
When I was under the street light, I saw the 
negro sitting in the courtroom (pointing) who 
was following me. I heard someone running 
and when I turned my head, he grabbed me 
by the throat, putting one hand over my 
mouth and one arm around my neck, and I 
pulled his hand off my mouth and screamed. 
There was no one else around there that I 
could see then. He said he would kill me if I 
didn’t stop screaming. He drug me under the 
viaduct. I was not screaming when Ruben 
Homewood came, because he had put his hand 
over my mouth. When he saw Ruben Home- 
wood coming, he turned and ran on the side 
of the viaduct and Ruben went on behind him 
(Tr. 12).

I turned and went to my mother. I did not 
see anyone on the way back. I called my

13



14
mother out and told her what had happened. 
She told Mr. Kimball, who called the police. 
When the police came I was with my mother 
and I went to the alley and identified this de­
fendant. He was dressed with a white coat, a 
cap, a grayish three quarters coat (Tr. 13). It 
was pretty cold that night and I had on a 
jacket, a skirt and a blue sweater.

About 15 minutes after I was dragged 
under the viaduct, I again saw this defendant 
when they brought him up to the alley for 
me to identify. I saw him again in the City 
Hall when they had the preliminary hearing. 
There is no doubt in my mind that this de­
fendant was the one that grabbed me and 
drugged me under the viaduct.

PEGGY ANN GRACEY — A State’s Wit­
ness Testified on Cross Examination (Tr. 15- 
18).

I do not know what time it was that I left 
my mother to go see my brother. I was stand­
ing near Dr. Rush’s house on Izard Street 
when I saw my brother drive off. After my 
brother left, I was going to my girl friend’s 
house on Front Street and I was on the side­
walk. After the hand was put on my mouth 
and neck, I got the hand off my mouth and 
screamed. I was dragged under the viaduct



15
and I actually got off the paved street, but 
I do not know how far. (Tr. 16)

1 was there when Ruben Homewood came 
there. I saw the defendant at the police sta­
tion. The police did not ever show any other 
person to me, other than the defendant. He is 
the only person that I ever was shown to by 
the police (Tr. 17)

I do not remember what time it was when 
I told my mother what happened, but it was 
dark. At the City Hall I was inside the office 
and saw the defendant through the glass, that 
was after I had seen him at Kimball’s Gro­
cery. I am positive they only brought one per­
son for me to identify (Tr. 17). Outside of 
the defendant having his hand on my mouth 
and throat, no other part of my body was 
touched. I am positive of that, just my mouth 
and throat were touched (Tr. 18).

RUBEN HOMEWOOD — A State’s Wit­
ness Testified on Direct Examination (Tr. 19- 
26)

I have lived in Forrest City about thirty 
years. I work for Dreyfus Furniture Com­
pany on Front Street, about 3 doors from 
Izard Street, where I was working on January 
28, 1961. I was in the back of the store watch­
ing television when I ran out of cigarettes. I



16
walked to the front door on Front Street and 
Mr. McDonald came by the door and I holler­
ed at him. He was coming from the east, going 
to the west. We were going to walk down the 
street together and we made aboul 3 or 4 steps 
towards Mr. Parker’s building, when I heard 
a scream. It came from back east. I saw this 
girl in the middle of the street. This boy had 
the girl around the neck pulling or dragging 
her back south underneath the viaduct. I 
could just tell that it was a boy and a girl, but 
could not identify them (Tr. 20)

As soon as I heard her scream, I ran as 
hard as I could up to the viaduct. Mr. McDon­
ald was not by my side, because I outran him. 
When I got there I turned under the viaduct 
and he turned her loose and she hollered 
“help,” and he took out to the outside of the 
viaduct and turned west and me right behind 
him. I didn’t stop to see who the girl was. He 
was heading back towards Izard Street and 
to the parking area by the railroad and to 
Front Street, and then turned down the alley, 
going north all the time. I got a good look at 
him as he was running across the street. He 
had a light cap on and a light top coat (Tr. 
22). When he got to Highway 70, he went be­
tween the cars and I was stopped by the cars 
and he went on down the alley to Hill Street



17
by the Planters Bank. I turned down the alley 
at the cleaners, turned down Washington 
Street the same time he did. He looked back 
to see if I was still following him and I ran 
down the alley to the Mid South Gas Com­
pany and I turned in the alley on Hill Street. 
He was at the corner of Hill and Rosser. At 
that time I was from here to the back of the 
court room and I never got any closer than 
that to him during the chase. (Tr. 23). He 
turned and went towards Laser’s 5 and 10 
Cent Store, angling across the street and we 
started down the alley after him. I had asked 
the Misskelley boy to help me catch him. 
When we got to the intersection of the two 
alleys, he turned back south and I told the 
two boys to go south and I would go towards 
Hill Street and cut him off. They went that a 
way and I went this way and we met and 
they said, “We lost him.” I went back there 
and stood in the alley (Tr. 24). After I missed 
him I told the Misskelley boy to call the po­
lice, and not 5 minutes later the police with 
two squad cars came in the alley. I saw the 
boy on a bicycle and asked him where he 
came from and he said home from supper. I 
asked him where he lived and he said on Bu­
ford Street. I stopped the boy on the bicycle 
because he had on a cap and coat like the



18
boy that I had been chasing. The police took 
him into custody. I am pretty sure that the 
boy sitting here in Court is the same person 
that I saw on the bicycle and the same boy 
that I had been chasing. I identified him as 
such that night, and I do now (Tr. 25).

I did not take time to talk to the girl, I 
did not know who she was. As I was chasing 
the boy from under the viaduct, 1 was holler­
ing for the police or anyone to stop him. 
There was nobody on Front Street, it was 
real cold. Another boy started with me on 
Washington Street and I pointed him out and 
asked him to catch the boy. I do not know 
who he was except his last name was Hall 
and he was still with me and the Miskelley 
boy when I sent them to call the police.

RUBEN HOMEWOOD—A State’s Witness 
testified on cross-examination (Tr. 26-33).

When I ended up in the alley behind 
Cohn’s, I was sweating from the running that 
I had done, it was pretty cold that night. I 
don’t know if the Poole boy that was on the 
bicycle was sweating, but he was breathing 
pretty hard. I do not know what program I 
was watching on T. V. when I went out for 
cigarettes (Tr. 26).



19
It was around 7:00 o’clock when this in­

cident took place, but I do not know exactly. 
In the chase I was a distance from where I 
am sitting now to the back end of the build­
ing, I got closer to him on the highway. It 
was dark under the viaduct and I had not 
seen his face, but I knew he was colored. The 
person I was chasing went in the alley the 
same place I did between Cohn’s and Laser’s 
and he turned south. That’s the reason I sent 
the two boys that way. I went to Grant Street, 
it was not crowded that night. I came back to 
the intersection of the alley and back up 
against the northwest corner of the building 
(Tr. 29). When I first saw the person on the 
bicycle that turned out to be Poole, he was 
coming around the corner from towards Hill 
Street, headed west where I stopped him. 
There was no police car there at that time. 
(Tr. 29)

I am positive that I stopped him while he 
was on the bicycle. The officer went and got 
the boy off the bicycle and brought him to 
me. I mean I stopped him on the bicycle and 
he came back. He went down the street a 
piece. I pointed him out as soon as the police 
drove up. I don’t know if the police brought 
any other colored boys out of the buildings 
and alley. I was there and this boy came up



20
towards Hill Street and I stopped him. He 
went on his bicycle as far from here to the 
door and then the policemen came up and got 
out of the car. In answer to the policemen’s 
questions, I told him how he was dressed and 
that he was on the bicycle. It’s been so long 
I don’t know if the policemen brought any­
one else for me to identify (Tr. 21).

He drove up and 1 identified him and 
then he rode off. When the officers brought 
him to me, I told them that was him. This boy 
was standing there and I had the policemen 
bring someone else out, so I could be sure I 
did not make a mistake (Tr. 31). While the 
boy was sitting on the bicycle I told the police­
men that was the boy that I had been chasing. 
I did not tell them to go in the cafe, but I told 
them, there he is on the bicycle. One other boy 
was brought to me to look at. I don’t positive­
ly know what I told Misskelley about the boy’s 
clothes, all I know is, I told Misskelley to help 
catch him. Two police cars did not stop on 
Rosser Street, they stopped in the alley, I do 
not have any idea where Ferguson’s bicycle 
came from. That is the reason I asked the of­
ficer to bring somebody else out of the cafe. 
I was pretty positive, but I wanted to be sure.



21
RUBEN HOMEWOOD — A State’s wit­

ness Testified on Re-Direct Examination (Tr. 
34)

I do not know the defendant by name, 
nor do I recognize him as the one that worked 
at the drug store. I never saw him before, that 
I know of. He did not tell me that he worked 
for Harris. I asked him where he had been 
and he said he had been home to supper and 
that he lived on Buford Street. I identify the 
bicycle as belonging to Ferguson’s Drug 
Store.

KENNETH McDONALD — A State’s Wit­
ness Testified on Direct Examination (Tr. 35- 
39)

I live in Forrest City and was here on 
January 28, 1961, having recently been in the 
Kennedy Veteran’s Hospital.

I left my house about 6:15 and I saw a 
young girl with a short sleeve sweater and 
bobby sox on the southeast corner of Izard 
and Front, the girl seemed to be nervous. I 
looked and saw a colored man with a three 
quarters length topcoat and a light cap on. I 
thought she was someone I knew, but when 
I got closer I saw that she wasn’t. (Tr. 35) I 
walked on down to the furniture store and 
talked with Ruben Homewood about tele­



22
vision service. I heard a scream that sounded 
like it was cut short and I turned and looked 
up towards Dr. Rush’s parking lot which is 
about half way between Izard and Front 
Street on Front Street. There was a slight 
amount of motion going on and I saw 
two figures there. It was a good 50 yards 
away and it was dark. Both of us started 
to walk and then we broke into a run 
when we saw a man dragging a girl across 
the street onto the concrete approach to the 
underpass north of the courthouse. (Tr. 36)

Ruben Homewood was a few feet ahead 
of me. I had a flashlight in my hand and 
turned the flashlight on and then in the flash 
I saw the man’s face. The girl that I saw under 
the viaduct was the same girl that I had seen 
walking down the street. I believe it was the 
same negro that I had seen standing over on 
the corner. He was dressed exactly the same 
as the other one. I fell down the side of the 
embankment and couldn’t run very much. I 
picked myself up and went to the front of 
Izard and Front Street and saw the young lady 
in front of the Singer Sewing Machine place, 
the same lady that I had seen on the corner 
of Izard and Front Street. She was nervous 
and crying. (Tr. 37)



23
She said that he had been choking her 

and had been following her about five blocks. 
I did not report it to the police. This is the 
man the police brought down there. He was 
dressed in a light gray three quarter length 
coat. (Tr. 38)

“Q. You could not stale positively that he 
was the man you had seen on the cor­
ner?

A. I couldn’t swear it beyond a reasonable 
doubt, but it was my belief that it 
was.”

MR. SHARPE:

I ask that his testimony be stricken if 
he cannot positively identify him.

THE COURT:

The objection is overruled.

MR. SHARPE:

Note my exceptions.

KENNETH McDONALD — a State’s Wit­
ness Testified on Cross-Examination (Tr. 39- 
41)



24
I am positive that Peggy Ann Gracey said 

that this was the same person that had been 
following her for five blocks. I left home at 
6:15,1 was talking to Ruben Homewood about 
5 minutes later when I heard a scream.

I shined a light in the face of the person 
under the viaduct. Ruben Homewood was in 
a position where he could see. Huben Home- 
wood turned around after taking a couple of 
steps under the viaduct and then started back 
towards me to see if I was going to back him 
up. The girl and the colored man were about 6 
or 8 feet under the viaduct when I first saw 
them. They were in a standing position. I do 
not remember the color of the pants the color­
ed boy had on. I noticed his coat.

I did not ask Peggy Ann if she could 
identify the boy. I asked her if she was hurt 
and she said that he was about to choke her 
and that he had followed her about five 
blocks.

RUBEN HOMEWOOD — A state’s Wit­
ness Testified on Re-Cross Examination (Tr. 
43-44)

I do not know how far Kenneth Mc­
Donald was behind me when we got across



25
from where the colored boy and the girl were 
underneath the viaduct. I did not have an op­
portunity to see the colored boy’s face while 
they were under the viaduct. I got there before 
Kenneth McDonald. I ran under the viaduct 
and started chasing him. When I first got 
under the viaduct, I did not take any steps 
back towards Kenneth McDonald to see if he 
was there. The street light by Dr. Rush’s cor­
ner showed a girl and colored boy to be under 
the viaduct, but not their faces. I did not have 
a flashlight with me. I do not know if Kenneth 
McDonald flashed a light on the colored boy’s 
face. I did not turn back towards Kenneth. I 
don’t definitely remember Kenneth putting a 
flashlight on the colored boy’s face.

THIS WAS ALL OF THE EVIDENCE IN 
CHIEF INTRODUCED RY THE STATE.



26

DEFENDANT’S TESTIMONY

JOE WILLIE WILLIAMS — A Defen­
dant’s Witness Testified on Direct Examina­
tion (Tr. 44-49)

I am 14 years old and in the 9tli grade at 
Lincoln. L. C. Poole is my half-brother and I 
live with him. 1 remember the Saturday night 
in January that L. C. was arrested and he 
hasn’t been home since then. I saw L. C. that 
night about 6:15. L. C. came home to give my 
sister-in-law $7.00. I know it was 6:15 be­
cause the picture on the T. V. was playing U. 
S. Marshall. In addition to the money, L. C. 
brought home some pants from the cleaners 
and a 2-piece suit for his wife (Tr. 46). I do 
not know whether L. C. changed trousers or 
not.

At about 6:30 I went and got some cigar­
ettes for L. C. The picture at 6:30 on the T. Y. 
was Bonanza, a Western. I am positive that 
L. C. was at the house when I came back and 
the new picture was coming on at 6:30. I 
would not tell a lie to help L. C. This is the 
same L. C. Poole that came home that after­
noon at about 6:15 and stayed until 6:30. It 
was the last time that I have seen him since 
he was arrested. I have six other brothers, all



27
of whom were at home that night. My mother 
was not there, she was at her job.

JOE WILLIE WILLIAMS — a Defen­
dant’s Witness Testified on Cross Examina­
tion (Tr. 49-56)

When L. C. Poole came home about 6:15, 
he brought his pants and a 2 piece suit for his 
wife. I tried to get some money from him and 
he said he didn’t have much money. No one 
told me what I was supposed to testify to. My 
mother told me when I got on the witness 
stand not to be afraid. She did not tell me 
what I was supposed to testify to. L. C., my 
brother, sent me out to get him some cigar­
ettes. I got them at the Chinaman’s store on 
Village Street, about a block from where I 
live. I don’t know if he changed clothes, when 
he left he had on a light gray coat, a light gray 
pair of pants, and a sort of gray cap. I cannot 
be positive that he had the coat on when he 
came home that night. It was pretty cool that 
night. I got home about 1:00 or 2:00 that 
afternoon and I had been riding on my bike. 
I had been home about 15 or 20 minutes be­
fore L. C. came home. It was not plum dark 
when I came in at 6:00 o’clock. The first thing 
I did was turn on the television and U. S. Mar­
shall was on. I started looking at the tele­



28
vision about 5:30 (Tr. 52) I had been in and 
out of the house during the afternoon. There 
was a Western on, but I don’t remember the 
name of it. I don’t think my brother ate sup­
per while he was there. I was in bed when my 
brother left in the morning for work at about 
8:00. I did not see L. C. any other time during 
the day. He usually comes home Saturday 
night for supper and then goes back to work 
on Mr. Ferguson’s delivery bicycle. When he 
gets off work at night, he leaves it at the store. 
I don’t know how far it is from Buford Street 
to Ferguson’s Drug Store, but if I walked fast­
like, I imagine it would take me ten or fifteen 
minutes. I have not gone by Ferguson’s to see 
my brother. My five other brothers were there 
with me when L. C. came home. My mother 
and step-father were not there. My sister-in- 
law, L. C.’s wife, was there and she was fixing 
to go to town and meet my mother (Tr. 56)

JOE WILLIE WILLIAMS — A Defen­
dant’s Witness testified on Re-Direct Exam­
ination (Tr. 56-57)

L. C. is the oldest and I am next. I am 13 
and Jim, the next one, is 12. L. C. could have 
eaten something while I was at the store and 
I didn’t see him.



29
JACK FERGUSON — A Defendant’s Wit­

ness testified on Direct Examination (Tr. 58- 
61)

I operate Ferguson’s Drug Store on the 
corner of Rosser and Rroadway Street, in 
Forrest City. I know L. C. Poole, who started 
working for me as a delivery boy for 2 or 3 
weeks before he was arrested on January 28, 
1961. The two bicycles that my delivery boys 
use are identified with a sign “Ferguson’s 
Drug Store” on the bicycles. L. C. Poole was 
working for me on January 28, 1961. The last 
time that I saw L. C. Poole in my store was 
on Saturday afternoon, early evening. It was 
when he came to me about 6:00 o’clock to 
borrow some money and said he was going to 
supper. I was in the delivery room where the 
delivery boys stay, and he said he wanted to 
borrow $11.00. I told him I would tell my 
wife to give it to him since she was up front. 
I went to the front end of the store and she 
was busy. I went back and told him that I 
would give it to him, which I did. L. C. left the 
store about 5 minutes after he asked me for 
the $11.00 to go to supper. It is a common 
practice for the delivery boys to go to lunch 
and dinner. They do not always take the 
bicycles home at night. I don’t think I could 
be mistaken about the time that I gave the



30
$11.00 to L. C. L. C. did not tell me what he 
wanted the $11.00 for. He has not been in my 
place since that time. I still have the two 
bicycles, one of them being returned to me 
after L. C. was arrested.

MRS. CLAUD JACKSON — A Defendant’s 
Witness Testified on Direct Examination (Tr. 
62-64)

I am and have been employed by Moseley 
Cleaners for the past 11 years. I was working 
there the last Saturday in January, January 
28, 1961. The mother of the colored boy, who 
is sitting to the left of Mr. Sharpe, called me 
on Monday morning after this happened on 
Saturday, January 28, when he was in the 
cleaners before 7:0() o’clock. L. C. Poole, using 
the name of L. C. Williams, took some clean­
ing and pressing out. I saw L. C. one day last 
week when Mr. Sharpe brought him out for 
me to identify him. I am positive that he is 
the boy that came in and got the broken pack­
age before 7:00 o’clock, because I got off at 
7:00 and it was before that. I do not know 
whether he was on a bicycle or not.

MRS. CLAUD JACKSON — A Defendant’s 
Witness Testified on Cross Examination (Tr. 
64-65)



31
Defendant, L. C. Williams, who did bus­

iness regularly at our place came in that night 
before I got off from work. I do not remem­
ber how he was dressed nor do I remember 
how much money he paid, but it seems like 
it was for a pair of pants, it might have been 
more. I do not know when L. C. first started 
doing business there.

OFFICER MARVIN GUNN — A Defen­
dant’s Witness Testified on Direct Examina­
tion (Tr. 66-69)

I am Assistant Chief of Police of Forrest 
City. During the past week I went to the radio 
station of Forrest City Police Force, examin­
ing it for Friday, January 27, and Saturday, 
January 28, 1961. I took a picture of the ori­
ginal which shows Item No. 40 at 1835 
o’clock Saturday, there was a call from Kim­
ball with the following information: ‘A Negro 
male grabbed a white girl and choked her and 
drugged her under the viaduct (given to 502 
and 503).’

OFFICER TOMMY BRIDGES — A De­
fendant’s Witness Testified on Direct Exam­
ination (Tr. 70-72)

I have been employed by the Forrest City 
Police Department for the past year and a 
half and was so employed on January 28,



32
1961. I am examining a photostat copy of the 
Station Log starting Friday, January 27, going 
to the 2400 hour and I was on duty taking 
telephone calls, working the radio when Item 
No. 40 at 1835 hour was called in by Kimball. 
If someone wanted to report a disturbance or 
something that was going on, I received the 
information on the telephone, then I would 
relay it to the radio units that are in the police 
cars. When I get the message I make a nota­
tion on the log. Item 40 at 1835 means 6:35 in 
the evening, showing that the call came from 
Mr. Kimball who runs the grocery store, 
giving it to 502 and 503, means that I radioed 
the message to two different police cars.

OFFICER DAVE PARKMAN — A De­
fendant’s Witness Testified on Direct Exam­
ination (Tr. 73-77)

I have been employed by the Forrest City 
Police Department since July 11, 1960, and 
was so employed on January 28, 1961. I was 
traveling east on Highway 70 by the Texas 
Courts when I received a radio call from Of­
ficer Tommy Bridges about a Negro male 
having done something with a white girl. I 
turned around and started back to town, 
down Broadway to Rosser and into Johnson’s 
alley, which is between Cohn’s store and



33
Laser’s store. I stopped at the intersection of 
the alley. To my knowledge no other police 
car ever came there. When I got there I saw 
Ruben Homewood standing at the intersection 
of the alleys. Ruben Homewood told us that 
the subject we had reference to was right 
down the alley. I went in the colored cafes 
that open on to the alley to try and find the 
subject that he had been chasing. Later on, 
after I had gone into the cafes, Ruben Home- 
wood told me that the subject was sitting on 
his bicycle. I went into the cafe looking for a 
person fitting the description that Ruben 
Homewood gave me. When I first met Ruben 
Homewood, I am positive that he did not tell 
me that, “There is the boy standing there,” or 
“There he is on the bicycle.” When I got in the 
cafe I found a boy dressed like the boy that I 
had the description of and I brought him out 
to show him to Ruben Homewood. I released 
that boy. After I showed this boy to Home- 
wood, he said “There is the boy on the bicycle 
down there,” which was between where I was 
and Grant Street. Ruben Homewood did not 
tell me he had seen the boy coming from Hill 
Street into the alley. Ruben Homewood told 
me about the boy on the bicycle after I had 
brought the colored boy out of the cafe. I 
went down there and got the boy that Ruben



34
Homewood had pointed out to me. He was 
standing on the bicycle in a stationary posi­
tion. I got him off the bicycle and carried him 
back to Ruben Homewood who said, “I bet a 
dollar to a doughnut that is him.” Ruben 
Homewood did not ever tell me that he was 
positive that that was the boy. The bicycle be­
longs to Ferguson’s Drug Store. I do not re­
member the suspects exact words, but he 
didn’t know what was going on, saying he 
hadn’t done anything. I did not ask him where 
he had been, nor did he tell me until later on 
when he said he left the drug store and got 
some clothes out of the cleaners and went 
home and changed clothes and came back to 
town.

OFFICER DAVE PARKMAN — A De­
fendant’s Witness Testified on Cross Exam­
ination (Tr. 75-79)

When I first came into the alley, I saw 
Mr. Homewood, but I had received a descrip­
tion of the suspect’s clothing by radio, not 
from Mr. Ruben Homewood. I was looking 
for a boy with a white looking cap and a three 
quarter length white coat. I found one in the 
cafe with a similar coat and brought him 
(o Mr. Homewood, but released him because 
Mr. Homewood said that was not the boy.



35
Then Mr. Homewood pointed out the one 
down the alley, the defendant, and I brought 
him back. He was dressed in the same man­
ner. I took him back to Kimball’s grocery and 
he was seen by Peggy Ann Gracey. He was ar­
rested and put in jail.

OFFICER DAVE PARKMAN — A Defen­
dant’s Witness Testified on Re-Direct Exam­
ination (Tr. 79)

I received a call by radio at 6:35 and com­
pleted the investigation at 6:45, but I do not 
believe I filled out the report.

MRS. MINNIE STEVENS — A Defen­
dant’s Witness Testified on Direct Examina­
tion (Tr. 80-82)

I work in the store that is operated by 
my husband and myself, known as Acme 
Store on Highway 70. Going up Broadway 
there is an alley and on the other side there 
is an ice cream parlor. On Saturday night, 
January 28, 1961, a colored boy ran into the 
store when I was at the back of the store. I 
asked him what he wanted. He said he was 
hunting a dress for his aunt. The rack was 
between him and the street. He was acting 
like he was very excited and he was sweating. 
He had on a white coat and a pair of pants 
with a light colored cap. I do not know if L.



36
C. Poole is the colored boy that I saw that 
night. I cannot be certain except that he is the 
same size and same weight. When the colored 
boy came in the store, he was perspiring, he 
had been running. I do not know what was 
the matter with him. This (pointing to Defen­
dant, L. C. Poole) was not the same boy they 
brought to me Saturday night for me to 
identify.

MRS. MINNIE STEVENS — A Defen­
dant’s Witness Testified on Cross Examina­
tion (Tr. 82-83)

At the time the colored boy came into the 
store, the colored woman that works with us 
was at the back. She came up front to see 
what the colored boy wanted and he ran out 
while I was trying to wait on another custo­
mer. Mr. Stevens was up at the front of the 
store. I cannot say that this is or is not the boy. 
He was about his size. The colored boy got 
behind some dresses and was peeping over 
the dresses. When I went to the cash register 
to check out this other customer, he got up 
and ran out the door.

MRS. MINNIE STEVENS — A Defen­
dant’s Witness Testified on Re-Direct Exam­
ination (Tr. 83)



37
I was as close to the colored boy as I am 

from here to the table when I asked him what 
he wanted.

GENEVIA BOYD — A Defendant’s Wit­
ness Testified on Direct Examination (Tr. 
84-85)

I live in Forrest City and work for Mr. 
and Mrs. Stevens at the used clothing store on 
Broadway, where I was working on Saturday, 
January 28, 1961. In the early evening some­
one ran into the store while Mrs. Stevens and 
I were in the back of the store. 1 went up to 
the front and asked him what he wanted and 
he said he wanted a dress for his sister. I had 
an opportunity to see the colored boy when 
he was standing and hiding behind the dress­
es. This (pointing to Defendant, L. C. Poole) 
is not the boy that I saw in the store that night. 
It does not look like him. The other boy look­
ed darker than he is. The boy that I saw was 
sweating like he had been running and he was 
scared, but he was darker than L. C. Poole is.

GENEVIA BOYD — A Defendant’s wit­
ness Testified on Cross Examination (Tr. 85- 
86)

I asked the colored boy what he wanted 
and he said he wanted a dress for his sister. 
At that time, Mrs. Stevens was at the back



38
of the store polishing some shoes. I didn’t pay 
any attention how the boy was dressed. He 
was darker than L. C. Poole. There was plenty 
of lights in the store and I did not have any 
difficulty seeing him, but I do not remember 
what kind of clothes he was wearing.

OFFICER DAVE PARKMAN — A De­
fendant’s Witness Testified on Recalled Di­
rect Examination (Tr. 87)

When L. C. Poole got off his bicycle in 
the alley near Grant Street, I didn’t notice that 
he was perspiring freely. I didn’t notice any- 
thing unsuual about him. I don’t remember if 
it was a cool night.

OFFICER DAVE PARKMAN — A Defen­
dant’s Witness Testified on Cross Examina­
tion (Tr. 87)

Officer Brians was with me in the car 
that night and I believe he made the report, 
but I was the one that went down and got L. 
C. Poole in person.

ANNIE REA POOLE — A Defendant’s 
Witness Testified on Direct Examination (Tr. 
88-90)

L. C. Poole and I have been married for 
three years, we have one child that is two 
years old. It was 15 minutes after six, when



39
L. C. came home Saturday afternoon, and he 
was arrested later on that night. I remember 
it was 6:15 because I had to go up town to 
meet L. C.’s mother. L. C. brought me the 
clothes I am wearing from the cleaners. He 
gave me $7.00 which I gave $1.00 to his daddv- 
in-law and I kept $6.00. L. C. did not eat any 
supper that night. L. C. was at the house when 
I left 25 minutes after six.

ANNIE REA POOLE — A Defendant’s 
Witness Testified on Cross Examination (Tr. 
90)

I got to his auntie’s house about 24 min­
utes after six.

LEE WILLIE ECKFORD — A Defen­
dant’s Witness Testified on Direct Examina­
tion (Tr. 91- 94)

I have lived in Forrest City all my life 
and worked at Sears-Roebuck. L. C. Poole is 
my wife’s son, my step-son. We all live in the 
same house at 303 Buford Street, which is on 
the north end of town, off of North Division 
Street. I saw L. C. the night he got arrested, 
January 28, Saturday, about 6:20 or 6:25. I 
had left the house to go to my wife’s aunts and 
when I got back L. C. was there. I know about 
the time because I meet my wife every Satur­
day night about 7:00 o’clock. L. C. gave me



40
the $1.00 that he owed me. I saw the Fergu­
son Drug Store bicycle out by the house. L. C. 
was at the house when I left.

LEE WILLIE ECKFORD — A Defen­
dant’s Witness Testified on Cross Examina­
tion (Tr. 94-96)

I was not at the house when L. C. got 
there. L. C. paid me the $1.00. I stayed there 
about 5 minutes. I sent one of the boys to the 
store to get me a package of cigarettes. I left 
when he got back. I was not at the house when 
L. C. got there. I came back to the house to 
tell the girl that my wife’s brother was there. 
There was six or seven children there when 
L. C. was there. L. C. changed clothes when 
he was home.

RUTHIE MAE ECKFORD — A Defen­
dant’s Witness Testified on Direct Examina­
tion (Tr. 97-98)

L. C. Poole is my son and I am married 
to Lee Willie Eckford. On Saturday nights I 
get off at 7:00 o’clock where I work at the 
Fabric Center. Monday I called and talked 
to Mrs. Claud Jackson, who works at Mose­
ley Cleaners, about some cleaning that L. C., 
my son, picked up, the Saturday night my 
son was arrested. He was arrested the last 
Saturday in January.



41
RUTHIE MAE ECKFORD, a Defendant’s 

Witness testified on Cross Examination (Tr. 
98)

The reason I called her that Monday 
morning was because I wanted to see what 
time it was that Saturday night that he went 
by after his cleaning. I had not talked to my 
boy before I talked to her. I know that he 
picked up some cleaning because L. C.’s wife 
told me that L. C. picked up the cleaning and 
brought it home.

RUTHIE MAE ECKFORD, A Defendant’s 
witness testified on Re-Direct Examination. 
(Tr. 98)

I talked to him through the bars at the 
jail. I brought him his dinner but I couldn’t 
talk to him or hear him too good because a 
lot of people were in there talking.

L. C. POOLE, the Defendant Testified on 
Direct Examination (Tr. 99-105)

I am also known as L. C. Williams. My 
father was Hessey Poole. I use the name L. C. 
Williams mostly, my step-father’s name, who 
lives in Mississippi. I worked two or three



42
weeks for Mr. Ferguson before I was arrested 
the last Saturday in January, this year. Be­
fore 1 was arrested, I received $11.00 from Mr. 
Ferguson so that I could get some clothes out 
of the cleaners. I was stone-broke before I 
got the money from Mr. Ferguson. I left Mr. 
Ferguson’s Drug Store on the bicycle between 
3 and 5 minutes after six and went to Mose­
ley Cleaners, where I took out a pair of pants 
and my wife’s dress. I left some cleaning 
there. I carried the cleaning home in the 
bicycle basket. I did not stop on the way home 
where I live with Lee Willie. I parked the 
bicycle in front of the house and carried the 
cleaning and pressing into the house. I 
changed pants. I gave my wife $6.00 and gave 
Lee Willie $1.00 that I owed to him (Tr. 102). 
I had already paid $1.65 for the cleaning and 
pressing. The police took $2.00 off me and I 
had had my brother, Joe Willie, buy a pack 
of cigarettes with the other 35 cents. I ate a 
sandwich that I made myself. I do not know 
what time it was when I left the house, but I 
had the cigarettes that my little brother, Joe 
Willie, had bought for me. I saw the program 
“U. S. Marshall” go off on the television. In



43
going back to town from my house, I rode up 
Buford Street and on Division Street and 
turned off on Grant Street and Hill Street. I 
turned down on Grant Street in order to get 
a shoe shine. I didn’t talk to anybody hut the 
policemen (Tr. 104). I was getting oil the 
bicycle when the policemen came and talked 
to me. I did not have the bicycle hid. Mr. 
Homewood was not chasing me. I was not the 
person that Mr. Homewood chased from the 
viaduct down the alley. I did not go into the 
Acme Second Hand Store. I did not put my 
hand around the girl’s mouth and my arm 
across her neck. I realize I am testitying 
under oath. I was not around the viaduct at 
all that night.

L. C. POOLE, The Defendant Testified 
on Cross Examination (Tr. 105-108)

That night I had on a light grey three 
quarter coat and a light cap. When the ot- 
ficers picked me up and questioned me the 
officers did not take me in front of a man 
named Mr. Homewood in that alley. On Front 
Street at the grocery store, the white man did 
say, ‘I was the boy.’ This young white girl



44
pointed me out and said, ‘I was the one,’ but I 
was not the one. I didn’t see nobody but the 
police in the alley. The police did not take 
me in front of some white man, except on 
Front Street. I have never seen Mr. Home- 
wood before. I didn’t get my shoes shined, but 
I was aiming to get them shined before they 
stopped me. I don’t know how long I was at 
home but I got home about 15 minutes after 
six and I wouldn’t know exactly what time I 
left home, but it must have been between 25 
and 15 minutes until seven. It would take me 
about ten minutes to ride my bicycle from 
town to home. When I came back to town I 
would work until 10:00 P. M. I did not go 
into a second hand store that night. I know 
the second hand store that Mr. and Mrs. Ste­
vens run, that is about 2 stores from the drug 
store where I work. I was in the second hand 
store Wednesday with Mr. Sharpe when Mr. 
Stevens said, ‘That is the boy that was in 
here that night.’

THAT IS ALL THE TESTIMONY 
INTRODUCED BY EITHER PARTY



45

DEFENDANT’S MOTION TO DISMISS AND 
COURT’S DENIAL OF MOTION (Tr. 109)

MR. SHARPE: The defendant moves the 
Court at this time to dismiss the charge of as­
sault with intent to rape, on the grounds that 
there is not sufficient evidence of anything 
whatsoever that would constitute the begin­
ning of an attempt to have sexual intercourse 
forceably and against the will of the prose­
cuting witness, Peggy Ann Gracey. The only 
testimony being that the defendant put his 
arm around her neck and choked her and had 
one hand around her mouth. The prosecuting 
witness testified that no other parts of her 
body were touched except her throat and neck 
and the hand over her face. In the case of 
Paul versus the State, 139 Southwestern, Page 
287, and a number of other cases, this is Key 
53, they hold that this is insufficient to sus­
tain a verdict of guilty of Assault with Intent 
to Rape.

THE COURT: The testimony in this case 
with reference to what happened is uncon­
tradicted. Therefore, the uncontradicted test­
imony in this case is to the effect that some 
negro attacked this prosecuting witness, put 
one arm around her neck and choked her, put 
the other hand around her mouth and that she



46
jerked the hand off of her mouth and scream­
ed and that he put the other hand around her 
mouth and told her if she screamed he would 
kill her, then he dragged her to a secluded 
spot under the railroad viaduct. The Court 
holds that this testimony is sufficient to go 
to the jury on the question of whether or not 
an assault with intent to rape was committed. 
The motion is overruled.

MR. SHARPE: Note my exceptions.

DEFENDANT’S REQUEST FOR
ADDITIONAL INSTRUCTIONS AND
DENIAL RY THE COURT (Tr. 140)

MR. SHARPE: I would like to ask for an 
instruction on assault.

THE COURT: Simple assault?
MR. SHARPE: Yes, sir, the defendant 

requests that the Court give the penalty for 
assault as set out in Section 41-602; the defini­
tion of Assault and battery, Section 41-603, 
and the penalty for assault and battery, Sec­
tion 41-604.

THE COURT: The motion is overruled 
because the Court is of the opinion that under 
the circumstances in this case, according to 
the part of this testimony that is uncontra-



47
dieted, the matter of simple assault or assault 
and battery has no place in this law suit and, 
under the facts in this case, cannot be em­
braced in the charge of assault with intent to 
rape since the uncontradicted testimony 
shows that a strange negro grabbed a white 
girl on the street and told her if she screamed 
he would kill her and he dragged her to a se­
cluded spot.

MR. SHARPE: Note my exceptions.

JURY TRIAL AND SENTENCE 
(Tr. 118-119)

On this day comes the State of Arkansas, 
by Hon. Lloyd Henry, Prosecuting Attorney, 
and comes the defendant, L. C. Poole, by his 
Attorney, Harold Sharpe, and it appearing to 
the court that the defendant had been form­
ally arraigned on the information herein 
charging him with Assault With Intent To 
Rape, and being informed by the Court of the 
nature of the information and the conse­
quences of his conviction thereon, for his 
plea says that he is not guilty of the charge 
of Assault With Intent To Rape, and this 
cause is set for trial by the court on May 1, 
1961.

And both parties announcing ready for 
trial comes a jury composed of James E.



48
Bayer, Ellis Williamson, George Lalman, 
Freeman Nichols, James Danehower, Paul 
Graves, Carl Morris, Joe Shyrock, Newton 
Dodson, Eugene Boyland, Francis McCain, 
and Archie Smith, in all twelve good and 
lawful jurors, who upon examination are re­
gularly selected and accepted by the parties 
to try the issues jointed on the defendant’s 
plea of not guilty, and are regularly empanel­
ed and sworn in this cause.

And the Jury having heard the opening 
statement of counsel, the evidence ol the wit­
nesses, instruction of the Court and argument 
of counsel, retired to consider of their verdict, 
and after due deliberation returned into 
Court the following verdict, to-wit:

“We, the Jury, find the defendant, L. C. 
Poole, guilty, and set sentence at three (3) 
years. Carl Morris, Foreman.”

It is therefore considered, ordered, and 
adjudged by the Court that said defendant 
be remanded into the custody of the Sheriff 
of St. Francis County, and to be by him safely 
and speedily transported to the State Peni 
tentiary, and there confined at hard labor for 
the period of three (3) years.

It is further ordered by the Court that 
the Clerk of this Court make out and deliver



49
to said Sheriff a certified copy of the fore­
going judgment to be by him delivered to the 
Keeper of said Penitentiary as sufficient au­
thority for him to receive and confine the said 
L. C. Poole.

/s /  Elmo Taylor, Judge 

MOTION FOR A NEW TRIAL (Tr. 120-121)

Defendant, L. C. Poole, by his Attorney, 
Harold Sharpe of Forrest City, Arkansas, for 
his Motion For A New Trial from his con­
viction on criminal charge of assault with in­
tent to rape, violation of Section 41-607, Ark­
ansas Statutes of 1947 Annotated, had in the 
St. Francis Circuit Court on May 1, 1961, in 
which said Defendant was found guilty and 
sentenced to a term of three years in the State 
Penitentiary at hard labor, states to the Court 
that:

1. The lower Court erred in its refusal to 
grant a directed verdict to Defendant at the 
close of the case.

2. The lower Court erred in its refusal to 
instruct the jury as to the penalty for assault, 
Section 41-602, Arkansas Statutes 1947 An­
notated.

3. The lower Court erred in its refusal 
to instruct the jury as to the penalty for as­



50
sault and battery, Section 41-604, Arkansas 
Statutes 1947 Annotated.

4. The lower Court erred in denying the 
motion of Defendant to strike the jury of the 
St. Francis Circuit Court for the systematic 
exclusion of Negroes as jury commissioners 
in St. Francis Circuit Court and the systematic 
exclusion of members of the Negro race as 
members of the juries of St. Francis Circuit 
Court.

5. The testimony is insufficient to sup­
port the verdict of the jury.

6. The verdict of the jury is contrary to 
the law.

7. The verdict of the jury is contrary to 
the evidence.

8. The verdict of the jury is contrary to 
the law and evidence.

9. The lower Court erred in its refusal to 
grant a new trial.

WHEREFORE, PREMISES CONSIDER­
ED, Defendant, L. C. Poole, prays that this 
Court grant his Motion For A New Trial and 
upon denial of same by this Court, that this



Court fix a time within which the Bill of Ex­
ceptions may be filed and the time for the 
perfection of said Appeal to the Arkansas Su­
preme Court and the setting of a reasonable 
bond pending Appeal to the Arkansas Su­
preme Court.

51

/s /  Harold Sharpe, Attorney 
for Defendant, L. C. Poole

ORDER DENYING MOTION FOR A NEW 
TRIAL AND GRANTING OF TIME FOR THE 
FILING OF BILL OF EXCEPTIONS AND 
APPEAL TO THE ARKANSAS SUPREME 
COURT AND FIXING AMOUNT OF BAIL 

BOND PENDING APPEAL (Tr. 122)

On this 4th day of May, 1961, is presented 
to the Court the Motion of Defendant, L. C. 
Poole, for a new trial, by his Attorney, Harold 
Sharpe, and from all matters and things pre­
sented to this Court, this Court doth find that 
said Motion for A New Trial should be denied, 
and that the time should be fixed within 
which Defendant, L. C. Poole, may file his 
Bill of Exceptions and Appeal to the Ark­
ansas Supreme Court, and that the reasonable



Bond pending Appeal should be in the amount 
of $2,000.00.

IT IS, THEREFORE, BY THIS COURT 
CONSIDERED, ORDERED, ADJUDGED AND 
DECREED that the said Motion For A New 
Trial be and the same is hereby denied, to 
which Order of this Court Defendant, L. C. 
Poole, objects and his objections are noted of 
record, and further Defendant, L. C. Poole, is 
hereby granted a period of sixtjr (60) days 
within which to file a Bill of Exceptions and 
sixty (60) days within which to file his Ap­
peal in the Arkansas Supreme Court, and 
pending said Appeal, Bond of said Defendant, 
L. C. Poole, be and the same is hereby set in 
the amount of $2,000.00.

/s /  Elmo Taylor, Circuit Judge 

Filed May 15, 1961 

Harold Wood, Clerk

52



53

ARGUMENT 

POINT NO. 1

THE TESTIMONY IS INSUFFICIENT 
TO SUPPORT THE VERDICT OF THE JURY 
AND THE LOWER COURT SHOULD HAVE 
GRANTED A DIRECTED VERDICT ON THE 
CHARGE OF ASSAULT WITH INTENT TO 
RAPE TO THE DEFENDANT AT THE CLOSE 
OF THE CASE.

and

POINT NO. 11

THE LOWER COURT ERRED IN ITS 
REFUSAL TO INSTRUCT THE JURY AS TO 
THE PENALTY FOR ASSAULT, SECTION 
41-602, AND THE PENALTY FOR ASSAULT 
AND BATTERY, SECTION 41-604, ARK­
ANSAS STATUTES OF 1947 ANNOTATED.

Appellant’s motion for a new trial in­
cluded nine points. However, these nine 
points have been consolidated into 3 points 
upon which Appellant bases this appeal for 
reversal and dismissal. Points I and II are pre­



sented together because they are closely re­
lated.

This Court is always confronted with the 
Appellant’s statement in a criminal case that 
the facts are insufficient to sustain the charge 
against the Appellant. In this case Appellant 
was charged and convicted of “assault with 
intent to rape,” and the facts are insufficient 
to sustain the charge. The prosecuting wit­
ness was the only person to testify as to the 
physical abuse, if any. Her testimony is as 
follows:

(Tr. 11-12)

“Q. Is this street light on the corner of 
Front and Izard Street?

A. Yes, sir, by the time I got up here I 
heard someone running and I turned 
my head and he grabbed me by the 
throat.

Q. Are you referring to this light out here 
by the viaduct?

A. Yes, sir.

Q. You say he grabbed you?

A. Yes, sir.

Q. How did he grab you?

54



55
A. He put one hand over my mouth and 

one arm around my neck and I pulled 
his hand off my mouth and screamed.

Q. Was there anyone else around there 
that you could see then?

A. No, sir.

Q. Did he say anything then?

A. He said he would kill me if I didn’t 
stop screaming.

Q. Then what did he do?

A. He drug me under the viaduct.

Q. Then what happened?

A. He stood there to see if anybody was 
coming when Ruben Homewood got 
out there.

Q. Were you still screaming then?

A. No, sir.

Q. Why not?
A. He put his hands over my mouth.

Q. You say Ruben Homewood came?

A. Yes, sir.

Q. Then what happened?



56
A. He turned and saw him and ran out 

on this side of the viaduct and Ruben 
went on behind him.”

(Tr. 18)
“Q. Outside of having his hand on your 

mouth and throat, was any other part 
of your body touched?

A. No, sir.
Q. That is all, just your mouth and 

throat?

A. Yes, sir.
Q. You are positive of that?

A. Yes, sir.”
At the conclusion of all the testimony in 

the lower court, Appellant moved for dis­
missal of the charges of assault with intent 
to rape on the grounds of insufficient evi­
dence, stating that the only testimony was 
that the prosecuting witness who stated that 
the Appellant put his arm around her neck 
and choked her and had one hand around 
her mouth. The prosecuting witness further 
testified that no other parts of her body were 
touched except her throat and neck and the 
hands over her face. No other person testified 
as to any physical abuse. The lower court held



57
that this testimony was sufficient to go to the 
jury on the question of whether there was an 
assault with intent to rape.

The lower court refused to instruct the 
jury as to the penalty for two other charges, 
(1) assault, and (2) assault and battery (Tr. 
1 1 0 )

In Wills v. State, 1936, 193 Ark. 182, 98 
SW 2d 72, the Supreme Court modified a con­
viction of assault with intent to rape by re­
ducing it to simple assault, setting out in de­
tail the facts in which the assault was made 
by the defendant who grabbed the prosecut­
ing witness, put his arms around her, tore 
her skirt and invited her to go to the house 
with him. Defendant flung the prosecuting 
witness into the ditch and hit her while she 
was in the ditch. The prosecuting witness did 
not say that the defendant was trying to have 
sexual intercourse with her.

In Wills v. State, supra, the Supreme 
Court cited Boijett v. State, 186 Ark. 815, 56 
SW 2d 182, stating that:

“It is well settled that an assault with in­
tent to rape is an effort to obtain sexual 
intercourse by force and against the will 
of the person assaulted, and the intent is 
to be ascertained from the commission of



58
some act or acts at the time or during the 
progress of the assault. The force actually 
used need be of no specific degree or 
character, but comes within the meaning 
of the law if it is reasonably calculated 
to subdue and overcome; nor need it be 
persisted in until the assailant’s design is 
accomplished. If the assault is actually 
begun and the intent can be inferred 
from the acts committed, the offense is 
complete, notwithstanding the fact that 
the assailant may, for some reason, relent 
and forbear from the consummation of 
his purpose.”

The Supreme Court in Wills v. State, 
supra, stated that speculation and conjecture 
could not be substituted for the absence of af­
firmative facts and circumstances, and re­
duced the charge to simple assault, with max­
imum punishment as provided by law.

The same conclusion was reached by the 
Supreme Court in Douglass v. State, 1912, 105 
Ark. 218,150 SW 860, in which a conviction of 
assault with intent to rape was reversed and 
remanded for a trial on a lower degree of as­
sault. In the Douglass case, defendant enter­
ed the bedroom of two young ladies, age 16 
and 21, and was on his knees by the side of



59
the bed, holding the hand of one of the girls. 
Upon being asked why he was in the room, 
defendant told one of the girls to keep still, 
to keep quiet, or he would kill her. The prose­
cuting witness told him that she could not 
come across because she was sick. The girl’s 
sister said, “For God’s sake, don’t ruin my 
little sister, she has no mother.” “For God’s 
sake, don’t ruin her.” Defendant said, “I will 
take it all on myself to save her.” The Court 
said that the evidence showed that there was 
a technical assault by touching and taking 
hold of the hand of the girl and also after de­
fendant had desisted from his attempt to in­
duce her to have sexual intercourse with him 
by again touching her person. The Court said 
that:

“Undoubtedly, if he had drawn the pistol 
for the purpose of inflicting death upon 
the assaulted girl, the crime of assault 
with intent to kill would would have been 
complete, even though he desisted from 
carrying out his intention; and, if he had 
placed his hands upon the girl as part of 
the act of having sexual intercourse and 
with intent to secure carnal intercourse 
with her, this would have completed the 
offense of assault to commit rape . . . He 
did not try to have sexual intercourse



60
with her, but was merely attempting to 
induce her to yield to his embraces, or, 
by threats, to coerce her into doing so.”

Reversed and remanded for trial on a 
lower degree of assault.

The Supreme Court in Douglass u. Stale, 
supra, cited the decision of Anderson v. State, 
77 Ark. 37, 90 SW 846, in which the accused 
found a ten year old girl waiting for the ar­
rival of a train and by a false pretext, in­
duced her to leave the station with him, at 
which time the accused hit the girl and tried 
to pull her in the alley. The girl started crying 
and he turned her loose and she ran back to 
station. Defendant was indicted and convicted 
of crime with assault with intent to rape. The 
Arkansas Supreme Court reversed the case on 
the grounds that the evidence did not show 
that the assault with intent to rape was com­
pleted. The Arkansas Supreme Court in 
Douglass u. State, further stated: “// is clear 
that the only overt act was committed merely 
in preparation for the preparation of the 
crime, and not in the commission of the 
crime itself,” citing Paul v. State, 99 Ark. 558, 
139 SW 289, in which case the accused rushed 
upon the prosecuting witness and took hold 
of her arm, asking her if she would like to



61
make a half dollar easy, she jerked loose from 
him and ran into the road.

The Supreme Court in the Paul case 
stated that there was an insufficiency of evi­
dence to sustain the verdict. The judgment of 
the lower court was reversed with directions 
to enter a judgment against appellant of con­
viction for assault and battery, and to fix his 
punishment for that offense.

The Arkansas Supreme Court has stated 
on a number of occasions that the statutes of 
this state require the unlawful act to be 
coupled with the present ability to do the in­
jury, clearly indicate that the unlawful act 
must be the beginning, or part of the act to 
injure, of the preparation of the crime and 
not the preparation to commit some con­
templated crime.

In the case under consideration, Appel­
lant L. C. Poole never attempted to have 
sexual intercourse with the prosecuting wit­
ness by force or consent. Appellant L. C. Poole 
never asked the prosecuting witness to have 
sexual intercourse with him. Appellant L. C. 
Poole never put his own person in condition 
for such an act. Appellant L. C. Poole did not 
attempt to raise prosecuting witness’ clothes,



62
or to throw her down, or to do any act pre­
liminary to sexual intercourse.

In order for this court to affirm the con­
viction of assault with intent to rape, all of 
the cases cited by Appellant have to be over­
ruled and new law created by this Court, 
rather than by the legislature.

Appellant would like to call to the Court’s 
attention that at no time did the police or any­
one who investigated the alleged complaint 
of prosecuting witness, Peggy Ann Gracev, or 
bring to the prosecuting witness, any one per­
son other than Appellant L. C. Poole, (Tr. 17)

There have been a number of cases in 
which this Court has sustained convictions of 
assault with intent to rape. Since 1940, the 
Arkansas Supreme Court has on numerous 
occasions held that there was sufficient evi­
dence to sustain a conviction of assault with 
intent to rape. Appellant has examined each 
of the cases since 1940, noting in each case the 
basic fact or facts present which warranted 
this court in finding that there was sufficient 
evidence to sustain the conviction of assault 
with intent to rape:

1. McCall v. State, 1959, 230 Ark. 425, 323 
SW 2d 421, in which the prosecutrix testified 
that defendant laid her down on the ground,



63
got on top of her, opened his pants, pulled her 
pants aside and endeavored to have inter­
course with her.

2. Harrison v. State, 1953, 222 Ark. 773, 
262 SW  2d 907, in which the prosecutrix testi­
fied that defendant had intercourse with her 
without her consent.

3. Reynolds u. State, 1952, 220 Ark. 188, 
246 SW 2d 724, in which the prosecutrix testi­
fied positively that Appellant assaulted and 
ravished her.

4. Underwood v. State, 1952, 220 Ark. 834, 
250 SW 2nd 131, in which the prosecutrix 
testified that defendant held the prosecuting 
witness by the ankles while his companion 
had sexual intercourse with the prosecutrix.

5. Gerlach u. State, 1950, 217 Ark. 102, 229 
SW 2d 37, in which the prosecuting witness 
testified that appellant forced her to submit 
to him and ravished her against her will.

6. McGee v. State, 1949, 215 Ark. 795, 223 
SW 2d 603, in which prosecuting witness testi­
fied that appellant grabbed her “right down 
here on my person, low down,” and accused 
put his hand all oner her, knocking her down, 
and appellant disappeared, then appellant re­
appeared within the next block, grabbed the



64
prosecuting witness, threw her to the ground, 
resulting in the prosecuting witness’ neck 
being scratched, her legs skinned and the but­
tons on her dress were torn off. Her false 
teeth were knocked out of her mouth. The 
prosecuting witness further testified that both 
times she was attached by appellant, she laid 
or threw her pocket book where appellant 
could get it if that was what he was after, but 
that “he did not want my pocket book and he 
did not touch it.”

7. Lindsey v. State, 1948, 213 Ark. 136, 209 
SW 2d 462, in which the prosecuting witness 
gave detailed information about the alleged 
crime of rape and the circumstances attend­
ing it.

8. Bradshaw v. State, 1947, 211 Ark. 189, 
199 SW 2d 747, in which the prosecuting wit­
ness, a girl 21 years of age, but with the men­
tality of a 9 year old child, told about accused 
taking her over a fence, choking her and ra­
vishing her forcibly and against her will.

9. Perkinson v. State, 1943, 205 Ark. 977, 
172 SW 2d 18, in which the prosecuting wit­
ness testified that accused, a taxicab driver 
took her to a secluded spot where he under­
took to “satiate his sexual propensities.”



65
10. Boyd v. State, 1944, 207 Ark. 830, 182 

S\V 2d 937, in which the appellant admitted 
that he intended to have carnal knowledge 
with the prosecuting witness, and the testi­
mony of the prosecuting witness and her out­
cry for help were heard and testified to by 
two witnesses, who called the police. Police 
officers who made the arrest found the ac­
cused on top of her with her begging him to 
quit and she was crying.

11. Priest v. State, 1942, 204 Ark. 490, 163 
SW 2d 159, in which the prosecuting witness 
testified that she reluctantly accepted a ride 
with appellant who drove his car a short dis­
tance, turned on a dim road to a secluded 
spot, killed his motor and attempted to have 
intercourse with her forcibly and against her 
will, “forcibly in that he put his right arm 
around her and with his left, he tried to put 
his hand under her dress while she was re­
sisting his efforts, both by word and act.” 
After she got away from him and got out of 
the car, he caught hold of her, “attempted to 
unbutton his trousers, attempted to kiss her, 
but she continued to frustrate his purpose.” 
Her outcries were heard by witness who 
thought nothing of it at the time.



66
12. Ward v. State, 1942, 203 Ark. 1024, 160 

SW 2d 864, in which the prosecutrix swore 
positively as to the commission of the crime 
of rape and appellant admitted that he had 
had intercourse with her, but said it was with 
her consent.

13. Fanning v. State, 1940, 199 Ark. 1187, 
136 SW 2nd 1040, in which (he prosecutrix 
testified that appellant forcefully and against 
her will, had sexual intercourse with her and 
that one appellant held her foot while the 
other appellant had sexual intercourse with 
her.

In this case, no one word, no act, nor any 
deed relating to sexual intercourse was pre­
sent.

The lower court erred in its refusal to 
grant Appellant’s Motion to Dismiss at the 
conclusion of all the evidence.



67

POINT III

MOTION TO QUASH JURY PANEL

Appellant filed in proper time his motion 
to strike the panel of petit jurors for two 
reasons:

1. For a period of over thirty years mem­
bers of the Negro race have been systemati­
cally excluded as jury commissioners in St. 
Francis Circuit Court, resulting in the facts 
that not a negro has served as a jury com­
missioner for more than the past thirty years, 
and

2. Over a period of thirty years members 
of the negro race have been systematically ex­
cluded as members of the juries of St. Francis 
Circuit Court.

The lower court denied the motion 
stating that: “The court is well acquainted 
with the procedure in this court in this coun­
ty for the past thirty years and that this court 
will take judicial knowledge of the records of 
this court and state that they do show that no 
negro has been a juror or commissioner for 
the past thirty years (Tr. 8).



68
In Payne v. State, 1956, 226 Ark. 910, 295 

SW 2d 312, the Arkansas Supreme Court 
stated that there was no merit in contention, 
that no negroes were selected as jury com­
missioners. However, the case of Payne v. 
State, supra, was reversed and remanded by 
the U. S. Supreme Court in 356 U. S. 560, 2 
L ed 2d 975, 78 S Ct 844, on the grounds that 
the confession was obtained through coercion 
and fear of violence. In the presentation of 
the Payne case to the U. S. Supreme Court, 
Appellant Payne raised the question as to the 
method of the selection of the jury commis­
sioners. The U. S. Supreme Court stated that: 
“The judgment must be reversed because of 
the admission in evidence of the coerced con­
fession. It is, therefore, unnecessary at this 
time for us to discuss or to decide the other 
question presented by petitioner — whether 
the overruling of his motion to quash panel 
of petit jurors upon the ground that negroes 
were systematically excluded or their num­
ber limited in the selection of the jury panel, 
denied him the equal protection of the laws 
under the 14th Amendment — for we will not 
assume that the same issue will be present 
upon a new trial”



69
There is no doubt that a defendant, after 

establishing that he is a member of a separate 
class or group, has the burden of proving 
discrimination against members of that class 
or group and the selection of the grand jury 
which indicted him or the petit jury which 
tried him. Hernandez u. Texas, 1954, 347 US 
475, 98 L ed 866, 74 S Cl. 667.

However, when a prima facie case of dis­
crimination in selecting a jury panel is pre­
sented, the burden falls upon the State to over­
come it. Avery v. Georgia (1953) 345 US 559, 
97 L ed 1244, 73 S Ct 891; Reece v. Georgia 
(1955) 350 US 85, 100 L ed 77, 76 S Ct 167, re­
hearing denied 350 US 934, 100 L ed 822, 76 ,S 
Ct 297.

This burden of the Slate is not met by 
mere assertions of public officials that there 
has been no discrimination. Avery v. Georgia 
(1953) 345 US 559, 97 L ed 1244, 73 S Ct 891; 
Reece v. Georgia (1955) 350 US 85, 100 L ed 
77, 76 S Ct 167; Eubanks v. Louisiana (1958) 
356 US 584, 2 L ed 2d 991, 78 S Ct 970.

In the case under consideration, the 
learned Circuit Judge candidly admitted that,



70
“No negro had been a jury commissioner in 
this county for the past thirty years.”

With respect to the members of the negro 
race who have been selected as members of 
the petit jury of St. Francis County, Appellant 
contends that the record conclusively reflects 
that less than a token representation of the 
negro race have been selected to serve on the 
petit jury.



71

CONCLUSION

The gist of the criminal charge against 
Appellant L. C. Poole is that he is alleged to 
have assaulted the prosecuting witness with 
intent to have sexual intercourse with her. 
This intent and purpose must be made man­
ifest by evidence adduced. There is not one 
scintilla of evidence in this case that Appel­
lant L. C. Poole intended to have sexual rela­
tions with the prosecuting witness.

The prosecutrix testified that no part of 
her body other than her throat and her mouth 
were touched by the appellant. The prosecut­
ing witness did not testify that the appellant 
made any threat of having sexual intercourse 
with her.

Ironically, the State did not use any en­
forcement officers as its witnesses. Appellant 
had the officers testify in his behalf. No one 
other than Appellant L. C. Poole was shown 
to the prosecutrix for identification pur­
poses.

The lower court erred in refusing to in­
struct the jury on the penalty of the two crim­
inal charges, (1) assault and (2) assault and 
battery.



72
The trial court stated that he would take 

judicial knowledge of the fact that during the 
past thirty years, no negroes had served as 
jury commissioners in St. Francis County, 
Arkansas. This, plus the fact that members of 
the negro race have appeared only in num­
bers of one or two at each term of the St. 
Francis Circuit Court as members of the petit 
jury, show conclusively that there has been 
systematic exclusion of members of the negro 
race from the petit juries of St. Francis Coun­
ty, Arkansas.

Even though the Arkansas Supreme 
Court might not desire to reverse its decision 
in Payne v. State, 226 Ark. 910, 295 SW 2d 312, 
with respect to the exclusion of negroes as 
jury commissioners, this Court should reduce 
the charge in this cause of action to assault 
and battery and assess the maximum fine, in 
accordance with the provisions of Section 41- 
604, Arkansas Statutes 1947.

Respectfully submitted,

H arold S harpe,

Attorney for Appellant,
L. C. Poole