Page:Alford v. State.pdf/3

Rh in the hope of dissuading him, but Alford threatened her with a hunting knife, dragged her from the building, and raped her. Two residents in the vicinity heard Mrs. Morman's screams. A physician who examined her later in the night found bruises on' many parts of her body and semen within the vaginal tract. The watch was later found in Alford's home. The defendant did not testify. We regard the testimony as ample to support the conviction.

We think, however, that the court was in error in failing to inform the jury of its option to impose either the death sentence or life imprisonment. Since this option lies entirely with the jury the court is under the affirmative duty of bringing the matter to the jury's attention, even though that action is not requested by the accused. Webb v. State, 154 Ark. 67, 242 S. W. 380; Smith v. State, 205 Ark. 1075, 172 S. W. 2d 249.

In the case at bar the penalty for rape was not mentioned in the court's instructions. Nor is it shown that, when the forms of verdict were given to the jury by the court, any oral explanation of the forms was made. Two of these forms provided for a finding of guilty on the charge of rape, one fixing the punishment at death and the other at life imprisonment. It is, of course, possible—it is perhaps quite probable—that the members of the jury so thoroughly discussed these forms that each juror understood his choice in the matter. But it is also possible that the alternative punishments were not discussed and that all the jurors did not examine the forms. In the latter case it might be impossible to discover the error, for jurors cannot impeach their verdict. In a matter of such grave importance we think that even the possibility of misunderstanding should be avoided. The court should explain the penalties to the jury as a whole, so that the record will disclose with certainty that the information was received by all the jurors.

Second, a Mrs. Austin was permitted to testify that on a night during the first half of May the defendant, by the use of a gun, forced her husband and her from their car, took her to a vacant house nearby, and attempted