Page:Wicks v. State, 270 Ark. 781 (1980).pdf/2

782 Robert A. Newcomb, for appellant.

Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee. 

G R S, Justice. By an information containing two counts the appellant was charged with having raped the same woman twice, once on August 17 and again on September 26, 1978. The prosecutrix testified to both occurrences, but the court, without objection, submitted only a verdict form permitting the jury to find the defendant guilty of rape, rather than of two separate offenses. The jury found Wicks guilty and fixed the punishment at life imprisonment. We find no merit in the six points that are argued, nor any other reversible error.

The prosecutrix testified that she did not know Wicks before the incidents and did not learn his identity with certainty until just before the information was filed in December, 1978. Both incidents occurred after she had gone to bed at night. In both instances the intruder found her in bed after gaining entrance into the house. The prosecutrix said that immediately after the first rape she talked with her assailant for about 20 minutes on her front porch, where she sat facing a street light. There was also a full moon. She was positive in her identification. She discussed the incident with her married daughter and with a fellow employee where she worked, both of whom testified, but she did not report either offense to the police until about two weeks after the second one, when certain damage to her screens led her to suspect that still a third attempt to enter her house had been made.

First, it is argued that the imposition of a life sentence in this case was a denial of due process of law, because the case was submitted to the jury without any guidelines to help the jury in its deliberations. On this point Wicks relies on the decision of the district court in Rogers v. Britton, 476 F. Supp. 1036 (E.D. Ark., 1979), holding that such guidelines are essential. That decision, however, was reversed earlier this month, after the case at bar had been fully briefed and submitted for our decision. Britton v. Rogers, 631 F.2d 572 (8th