Curtis v. State , 89 Ark. 394 ( 1909 )

Wood, J.,

(after stating the facts.) First. The ruling of the court in overruling the demurrer and in refusing to require the prosecuting attorney to elect was correct. The indictment charged but a single offense. Carnal abuse and carnal knowledge, as used in the statute, are synonymous terms.

The allegation that the assault was upon “a female child under the age of consent, to-wit, of the age of 15 years,” was a sufficient allegation that the party assaulted was a female person under the age of sixteen years. It was not necessary for the indictment to charge in express terms that the party assaulting and the person assaulted were not married.

The. indictment charged that the assault was unlawful- and felonious, and that the carnal knowledge was also unlawful and felonious. It also charged Jesse Curtis with assaulting Bertha Williams. These allegations' were sufficient to charge that the accused and the prosecuting witness were not married, and that the assault and carnal abuse were therefore unlawful and felonious, under the statute, being, as alleged, upon a female person under the age of sixteen years. See Plunkett v. State, 72 Ark. 409. The indictment contained all that was essential to charge the offense interdicted by section 2008 of Kirby’s Digest.

Second. The court did not err in its ruling upon the prayers for instructions. The instructions given correctly -presented the issues to the jury. It was not necessary, as we have said, for the indictment to negative, in express words, that the accused and the prosecutrix were married. As was said by Judge Rid-dick in Caldwell v. State, 73 Ark. 139: “It is never necessary that an indictment should set out or negative mere matters of defense, for it would be impracticable to cover all such matters.” But if it were necessary for the indictment to show that the accused and the prosecutrix were not married, as we have said, this.indictment was sufficient for that purpose, and likewise the evidence sufficiently proved that fact in the way we have indicated.

Third. We find no prejudicial error in the remarks of the prosecuting attorney concerning a further continuance of the cause. The remarks, as the record shows, were made, before the jury was impaneled and sworn to try the case. While such remarks are improper when made in the presence and hearing of the jury selected, or to be selected, to try a cause, we do not see that any prejudice to appellant could have resulted, under the circumstances. Assuming that the jurors who heard the remarks before they were selected to try the case were sensible men, they were not likely to be prejudiced by them against the defendant. For the remarks had no reference whatever to his guilt.

Fourth. There was no error in the refusal of the court to continue the cause on account of the absence of counsel. This was a matter within the court’s discretion, and it was properly exercised.

Fifth. It was not error for the court to permit the mother of the prosecutrix to refresh her memory by leaves which she identified as taken from the family Bible. The court accepted her testimonial guaranty of their accuracy, and, having done so, did not err in permitting her to use them to refresh her memory in testifying as to the age of her daughter. Wigmore on Ev. § 746.

Sixth. The language used by the prosecuting attorney in his closing argument that “the defendant' does not deny that he had sexual intercourse with the plaintiff” was prejudicial error. It is obvious that by the word “plaintiff” the prosecuting attorney meant the “prosecutrix.” Our statute provides that the defendant charged with crime “shall, at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create a presumption against him.” By his plea or not guilty the defendant did deny that he had sexual intercourse with the prosecutrix. His plea of not guilty put in issue every material allegation of the indictment, and sexual intercourse was material.

The court, by permitting the prosecuting attorney to make the statement, made the defendant’s failure to testify a presumption against him in the most hurtful manner. The statement put the defendant in the attitude of not denying the charge, when under the law he was not called upon to deny further than by his plea of not guilty. In no other way could he deny it except by going upon the witness stand. If he does not choose to become a witness, no comment can be made upon the fact of his failure to do so adversely to him, without plainly violating the provisions of the statute, and depriving the defendant of the very rights which it was intended to vouchsafe.

For the error indicated the judgment is reversed, and the cause is remanded for new trial.