Davidson v. State , 1913 Ark. LEXIS 89 ( 1913 )

McCulloch, C. J.

The defendant, Odus Davidson, was convicted of the crime of murder in the first degree. He is accused in the indictment of murdering Ella Bar-ham, a young woman about eighteen years of age, who lived in Boone County, Arkansas, in the same neighborhood where defendant resided and where he had been reared.

There are several counts in the indictment, each charging the defendant with the crime of murder in the first degree, committed in different modes by killing Ella Barham. Each count of the indictment is legally sufficient as a charge of the crime of murder in the first degree, and the indictment concludes with the following clause, namely: “It being intended throughout each count in this indictment to charge the offense herein set out as having been committed in different manners and by different means, but all referring to one and the same transaction. ’ ’

The defendant moved the court to require the prosecuting attorney to elect upon which count of the indictment he would proceed. The court overruled the motion, and that ruling is assigned as error.

The indictment presents a clear instance of charging the same offense committed in different modes. It does not charge the commission of more than one offense and it is, therefore, not open to the objection that different offenses are named therein. Corley v. State, 50 Ark. 305.

The next assignment of error is that the trial was vitiated on account of the verdict of the jury being received by the court in the absence of the defendant.

The record entry of the trial and judgment recites the presence of defendant in person and by his attorneys, but the circuit judge has certified in the bill of exceptions that the defendant was not present in person when the verdict was returned and that his attorneys were present and entered into a written stipulation for him consenting that the verdict might be returned in his absence. The recital on this subject in the bill of exceptions reads as follows:

“Two or three hours after the jury had retired in the charge of the officers, under the instructions of the court to consider their verdict, and on the same day, there was a consultation between the attorneys for the defendant and the court in the absence of both the defendant and the prosecuting attorney, and upon the request of the attorneys for the defendant, and upon the specific understanding that the agreement be reduced to writing, waiving the presence of the defendant, if a verdict was returned in his absence, the court and the attorneys for the defendant believing there was danger of a mob, and such action being in the interest of the defendant, the court ordered the sheriff, without the agreement of the prosecuting attorney, and over his objections, to convey the defendant to the jail at Berryville, Carroll County, Arkansas. The defendant was present at all' times, either in person or by attorney. Such agreement and waiver was prepared by defendant’s'counsel, and signed by the said E. Gr. Mitchell and B. B. Hudgins and other counsel in the case, which written waiver was in words as follows.” (Here follows copy of the written stipulation.)

Where there is a conflict between the recitals of the record entry proper and those in the bill of exceptions, the former must prevail; but inasmuch as the circuit judge has certified the facts in the bill of exceptions and defendant’s counsel have asked for á postponement of the case here until the circuit court convenes again and an opportunity can he given for an amendment of the record, we would not dispose of the question adversely to defendant’s contention without giving him an opportunity to have the record amended if an amendment in accordance with his contention would bring about a different result in the disposition of the case. We will, therefore, treat the record as amended so as to show his absence by consent as recited in the bill of exceptions, and will test his right to a reversal of the judgment on that state of the record.

The Constitution (art. 2, § 10) provides that “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury * * *; and to be informed of the nature and cause of the accusation against him, and to have a copy thereof; and to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to be heard by himself and his counsel.”

A section of the Code of Criminal Procedure reads as follows:

“If the indictment be for a felony the defendant must be present during the trial. If he escapes from custody after the trial has commenced, or, if on bail, shall absent himself during the trial, the trial may either be stopped or progress to a verdict, at the discretion of the prosecuting attorney, but judgment shall not be rendered until the presence of the defendant is obtained.” Kirby’s Digest, § 2339.

It is insisted on behalf of the State that the constitutional provision quoted above does not guarantee the right of an accused person to be present when the verdict is returned, and that the judgment should not be reversed on account of the absence of the defendant when the verdict was rendered unless it appears that his absence operated to his prejudice.

We do not think, however, that that contention is sustained by the decisions of this court.

The language of the Constitution, “to be heard by himself and his counsel,” is a guarantee that an accused shall have the privilege of being present in person and by counsel whenever any substantive step is taken by the court in his case. Bearden v. State, 44 Ark. 331. Chief Justice Cockrill, speaking for the court in the case just cited, said:

“Under this rule it is not necessary that the accused shall show that he was actually prejudiced by the proceeding had in his absence. It is sufficient to annul the verdict against Mm if it appears that he may have lost an advantage or been prejudiced by reason of a step taken in Ms absence. The reason of the rule is to secure to the accused full facilities for defense. However, while he can not be deprived of his right to be present at all stages of Ms trial, it does not follow that he must be. The statute provides that certain proceedings may be had in the absence of a defendant who absconds, or is on bail and absents Mmself. Where, also, no prejudice could by any possibility result from the action- of the court, there is no reason for requiring the presence of the defendant.”

The Constitution does not provide that the defendant must be present, but that he may be present. It is a privilege which is conferred and does not relate to the power of the court to conduct the successive steps in the trial.

The statute referred to reads that the defendant “must be present during the trial.”

The statutory provision is, however, not for the benefit of the accused, but for the State. Martin v. State, 40 Ark. 364.

The list of authorities cited by counsel for appellant discloses decisions to the effect that in capital cases the accused can not waive his presence when the verdict is received or at any other substantive step in Ms trial; and there are a few decisions to the effect that, even in felony cases other than capital, the accused can not waive Ms presence at any step in the progress of the trial.

It may be said here, however, without further discussion, that according to the great weight of authority, in felony cases other than capital, the accused may waive his presence. 12 Cyc. 527.

In a recent decision of the Supreme Court of Mississippi, the court held that, where the defendant was charged with a capital offense (murder in the first degree), but was convicted of the lower offense of manslaughter, the trial was vitiated by the fact that the accused was absent. Sherrod v. State, 93 Miss. 774, 47 So. 554, 20 L. R. A. (N. S.), 509. The recital of facts in that case shows that the defendant was on bond and voluntarily absented himself at the time it was announced that the verdict of the jury would be received; but the court held that he could not waive his presence when that important step in his trial was taken.

The Supreme Court of the United States also held that a person accused of a capital offense can not waive his presence at a substantive step in the proceeding. Hopt v. People, 110 U. S. 574. The grounds of the decision were stated for the court by Mr. Justice Harlan as follows :

“We are of the opinion that it was not within the power of the accused or his counsel to dispense with the statutory requirement as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the grounds that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view, as well of the relations which the accused holds to _ the public as of the end of human punishment. * * * The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law.- That which the law makes essential in proceedings involving the deprivation of life or liberty can not be dispensed with or affected by the consent of the accused; much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiation or atonement of the offense committed, but the prevention of future offenses of the same kind. 4 Bl. Com. 11. Such being the relation which the citizen holds to the public, and the object of punishment for public wrongs, the Legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. ’ ’

It will be thus seen that that court based its conclusions on the ground that the accused could not waive bis presence for two reasons; one, that the power of the court to act depended upon the presence of the accused; and, next, that the public interest in the result of the trial deprived bim of the power to give his consent to his absence.

These grounds are, we think, far from tenable, and neither of the cases quoted from above appeals to us as stating sound conclusions; nor are the conclusions reached there in accordance with the decisions of this court.

The power of the court to proceed does not depend upon the personal presence of the accused. Only his right to be present is guaranteed by the Constitution and laws of this State. Any other construction of the constitutional provision would render invalid the statute which provides that if the accused escape from custody after the trial has commenced, or, if on bail, the accused shall absent himself, the trial may progress to a verdict notwithstanding his absence.

This court has declared that statute to be a valid one. Gore v. State, 52 Ark. 285.

The fact that the statute permits the accused, by his voluntary absence, to waive his presence at the trial, demonstrates that the power of the court to act does not depend upon the presence of the accused, and that it is only where steps are taken in the absence of the latter without his consent, that his rights are violated.

The converse necessarily is true that, where he voluntarily absents himself, the court may proceed with the trial in Ms absence.

Other constitutional guaranties of equal importance and dignity may, according to our decisions, be waived by an accused person.

The Constitution guarantees to the accused the right to have a copy of the indictment; but that may be waived. McCoy v. State, 46 Ark. 141; Powell v. State, 74 Ark. 355; Hobbs v. State, 86 Ark. 360.

It provides that the accused shall be “informed of the nature and cause of the accusation against Mm;” that is to say, he shall be arraigned. The statute also provides that he shall be arraigned before trial. But tMs court held that it is a right which can be waived. Ransom v. State, 49 Ark. 176; Moore v. State, 51 Ark. 130; Hayden v. State, 55 Ark. 342.

In Hobbs v. State, supra, the court held that, even without a formal waiver of arraignment, a judgment would not be reversed “if the record shows that the defendant received every right wMch he would have received had he been duly arraigned.”

The Constitution also provides that the accused has the right “to be confronted with the witnesses against Mm,” but who can doubt for a moment that the accused, even in a capital case, may waive the production of a witness and agree what his testimony will be and consent that it shall go to the jury. The following decisions by other courts settle that question: Rosenbaum v. State, 33 Ala. 354; Butler v. State, 97 Ind. 378; State v. Polson, 29 Iowa, 133; State v. Fouks, 65 Iowa, 452; State v. Harnsby, (La.) 41 Am. Dec. 305; People v. Ulunay, 52 Mich. 288;; State v. Wagner (Mo.), 47 Am. Rep. 131; Williams v. State, 61 Wis. 281; Hancock v. State, 14 Tex. App. 392; Allen v. State, 16 Tex. App. 237. Now, if those privileges, wMch are. equally guaranteed by the Constitution, may be waived, why may not the accused waive his own presence at some step of the trial?

This court in a number, of cases has decided that the defendant in a felony case may waive Ms presence.

In Polk v. State, 45 Ark. 165, it was held that it was not error for the trial court to make an order in the absence of the defendant for a- change of venue. The court said, in disposing of the question, that the trial court did nothing in the premises except to grant the request of the defendants, and that they could not possibly have been prejudiced by their absence. •

In Bond v. State, 63 Ark. 504, the court held, as in the Polk case, supra, that it was not reversible error to make an order for a change of venue in the absence of the defendant.

In Baker v. State, 58 Ark. 513, it was held that the defendant could in person waive the presence of his counsel when the verdict was returned.

In Darden v. State, 73 Ark. 315, we held that the defendant, if on bail, could not complain of the examination of witnesses during his voluntary absence.

It is true that none of these was a capital case; but we do not perceive any difference when it comes to the question of the power of the accused to waive some of the privileges that are guaranteed to him by the Constitution and laws. It is the duty of trial courts, in that class of cases, to guard more carefully the rights of accused persons and to see that their rights are not prejudiced; but, after all, the test of the power of the court in a capital case with respect to the presence of the accused is the same as in any other felony cases. Our laws make no distinction. This court has held that one accused of the crime of murder may enter a plea of guilty, but that, on account of the statutory limitation upon the powers of the court, a jury must be empaneled to pass upon the degree of the offense. Lancaster v. State, 71 Ark. 100.

In McVay v. State, 104 Ark. 629, where the defendant was convicted of murder in the first degree, we held that he had the power to waive the presence of the trial judge during the progress of the argument of the case and to consent to the argument being proceeded with .in the absence of the judge.

Powell v. State, supra, is a case where, the defendant was convicted of murder in the first degree, and we held that the defendant could waive his right to service of a copy of the indictment.

Our conclusion is' that the accused may, even in a capital case, after the trial has commenced, waive his personal presence at a step in the progress of the trial such as receiving the verdict, and that where his presence has been duly waived, this.court should not reverse a judgment on account of his absence upon his own consent, unless it appears that he was prejudiced in some way by such absence.

In this case the court did no more than grant the request, conveyed to the court through defendant’s counsel, that he be removed from the court and from the county for his own safety from threatened mob violence. If he and his counsel conceived it to be necessary for his own safety that he should be absent from the county during the further progress of the trial, he can not now complain that the verdict was returned in his absence.

It is next contended that the defendant himself did not waive his presence at the trial and that his counsel could not waive it for him.

It may be conceded that counsel, in the absence of the defendant and without authority from him, can not waive a personal privilege guaranteed to him by the Constitution.

That, however, is not the case before us. The record shows that his counsel acted for him and in his name consenting to the verdict being returned in his absence. The presumption must be indulged, in the absence of a showing to the contrary, that the attorneys had authority from him to enter into the stipulation waiving his presence. Martin v. State, supra.

“The general presumption;” says Judge Elliott in his work on Appellate Procedure, section 718, “is that the judgment of a judicial tribunal is supported by whatever is essential to its validity and effectiveness.”

Such, is the view of this court expressed iu the case of Bond v. State, supra.

It is not essential to a valid waiver that the defendant should make the agreement in his own person. He may do so through his counsel, and, as before stated, in the absence of a showing to the contrary, authority to perform an act in the progress of the trial, which counsel assume to do, will be presumed.'

Counsel for defendant rely upon the case of Osborn v. State, 24 Ark. 629, as sustaining their contention that the defendant can not waive his presence, if he can do so at all, except by his own act, and can not do so through his counsel.

The case does sustain that contention. It appears from the opinion that the court reversed the judgment simply because the transcript failed to show that the defendant was present when the time for service of a copy of the indictment was waived.

We think that decision is in conflict with subsequent decisions of this court, just cited, and that it has, in effect, been overruled.

- The defendant filed with the motion for new trial his affidavit, in which he stated that he did not authorize his counsel to enter a waiver of his presence and that he did not know that it had been done until after the verdict was rendered, and did not know that the verdict was to be rendered in his absence. The affidavit did not however, establish conclusively the truth of the statement that he did not consent to the waiver. Under all the circumstances the court was justified in finding that, notwithstanding the defendant’s affidavit to the contrary, he did authorize his attorneys to take this step.

Many questions are raised as to the admissibility of testimony, and it is necessary to refer to the facts of the case, which we will do as briefly as possible.

Defendant and deceased lived in the same neighborhood in Boone County, where the crime is alleged to have been committed. Defendant lived with his father, who was a farmer in that locality. Deceased lived with her parents a few miles distant. Deceased met her death on Thursday, November 21, 1912, while she was returning from the home of a neighbor. 1 She left home about 9 o’clock in the morning, and went over to the home of a Mrs. Briant, for the purpose of procuring the services of the latter in making a hat. She rode horseback, and in making the trip it was necessary for her to pass the house of defendant’s parents. She stopped there on her trip over to Mrs. Briant, and conversed with defendant’s mother. The evidence tends to show that she reached Mrs. Briant’s home between 9 and 10 o’clock in the morning, and after remaining there for a while she started on her return home about 11 o’clock. She was never seen again after she passed the Davidson’s home on her return from Mrs. Briant’s house. The members of her family became alarmed late in the afternoon at her failure to return, and they, together with other neighbors, instituted a search for the body. They first found the horse which she had ridden, and later found her dismembered body in the woods a few hundred yards distant from the defendant’s home. The body was horribly mutilated. The face was mashed and bruised, the nose being mashed in, the skull fractured in several places and the flesh mashed away from the teeth. The head was completely severed from the neck, having the appearance of being cut off with a sharp instrument; the body was cut in two completely at the waist line; the bowels were gone, and both legs were severed about the middle of the thighs. There was a cut in the left hand and the wrist of that hand was fractured. There was also a cut in the left thigh which apparently was inflicted with the blade of a sharp axe. The dismembered parts were found, under a bluff, scattered about over a space of twenty feet square or more. A witness who testified as an expert, examined the remains and, according to his testimony, deceased was a virgin, in good health, and the hymen had been ruptured not more than a few hours before death and too short a time for repair to begin; that semen was found in the culdesac at the mouth of the womb, showing sexual intercourse shortly before or after the murder was committed. Between 11 and 12 o ’clock on the day of the murder an elderly lady, partially deaf, who was at work at a spring a few hundred yards from the place where the first blood was found, heard a single scream of distress in that direction.

The theory of the State is that the defendant dragged the deceased from her horse, or compelled her to dismount, and after perpetrating the crime of rape, murdered her.

The body was found about 9 o ’clock on the night of the same day that the young lady disappeared. The next day a search of the locality was made, and the first evidences of blood were discovered 683 yards from deceased’s home. At that place there was a tree-top which had been cut down in the road and the trunk of the tree removed; there was found among the leaves in this treetop impressions as if a body.had lain, and blood was scattered in two directions. The trail of the blood led from there a short distance to a point where a rock, weighing a hundred pounds, or more, was found, on which there appeared blood, and also a smaller rock on which there was blood and also hair which corresponded in color and otherwise with the hair of the dead girl. Near that spot the shoes and stockings of deceased were found secreted, and also a back comb used by deceased. From there the searchers traced the course of the murderer across Crooked Creek, a very small stream, where they detected tracks made by bare feet in the water and sand, and across this creek a short distance in the direction of an abandoned mine shaft they found the body as before described.

This was all within a few hundred yards of the home of deceased, in a sparsely settled locality.

Three days later there was found, among the leaves near the fallen tree top, a loaded revolver, which was identified as one owned by the defendant.

Defendant was arrested on Friday night, at the home of his father, after the murder was committed on Thursday. The sheriff carried to the place a posse, which was assembled around the house when the officer went in to make the arrest. When the sheriff informed defendant’s father that he had a warrant, the latter called to defendant, who, it appears, was in an upstairs room. About the time that his father’s voice called to defendant, those on the outside heard a window raised in the room above and a hand protruded and dropped something, which was found to be a pair of men’s socks, containing some sand and red pepper, a pod or pods of red pepper having been crushed up and placed in one of the socks. The sheriff had stated publicly that he was going to get bloodhounds, and it is the theory of the State that the defendant placed the pepper inside of his socks believing that it would prevent the hounds from following his track.

On Saturday morning those who were searching for evidences of the crime, found an axe near the woodpile at defendant’s home, and blood was discovered in and about the eye of the axe. An expert chemist who analyzed the blood, declared it to be human blood. There also appeared on the handle, about the eye of the axe, a sliver upon which had caught what appeared to be a small thread or piece of cloth.

The testimony shows that the defendant was absent from home during the middle of the day; in fact, it is undisputed that he admitted to the sheriff of Carroll County, where he was confined in jail, that he left the house about 12 o ’clock and went down on the creek. His brother testified that he saw him during the morning take this axe and go to the barn for the purpose of doing some work, and that he left home about 4 o ’clock in the afternoon to go down to look after his fish traps on the creek.

There is also testimony to the effect that defendant had attempted to pay social attentions to deceased, but that his attentions had been rejected, and that he had expressed irritation and animosity towards the deceased on account of her conduct in rejecting his attentions.

The ease against appellant is built up on circumstances, but we are of the opinion that the circumstances were' sufficient to warrant the jury in finding that the defendant committed the crime. Learned counsel for defendant insist very earnestly that the evidence is not sufficient to sustain the conviction; but a careful consideration of all the circumstances compels the conclusion that the jury were correct in deciding that the defendant committed the crime.

The first assignment urged upon our attention as an error of the court in ruling upon the admissibility of testimony is that concerning the testimony of Alexander Davidson, the brother of defendant. He was called as a witness by the prosecuting attorney, and testified that he saw the deceased pass by his father’s house on her return from Mrs. Briant’s about 11 o’clock in the morning, and that some time during the morning he saw the defendant go towards the barn with an axe, and that he saw the defendant leave home to go down to the creek to set his traps about 4 o ’clock in the afternoon. He was asked if he had not testified, before the grand jury and the coroner’s jury, that he saw his brother, the defendant, go up towards the barn with the axe about half-past 12 o’clock; and he admitted that he had made that statement, but said that he was mistaken about it, and that his brother went up towards the barn with the axe earlier in the morning.

The defendant asked the court to let this statement only go to the jury for the purpose of contradicting the witness, and not as substantive evidence of the facts related in the contradictory statement.

The court overruled this request, and told the jury that they might consider the testimony for all purposes, for what it was worth.

Now, the ruling of the court was undoubtedly incorrect, for the testimony was not admissible for any other purpose than that of contradicting the witness; but we are of the opinion, considering the other testimony in the case, that the error was not prejudicial. This witness testified that the defendant went towards the barn with Ms axe some time in the morning, and that be left borne about 4 o’clock in the afternoon for the purpose of going-down to tile creek to set Ms traps. In Ms contradictory statement be said that Ms brother went towards the barn with the axe about half-past 12 o’clock. The fact which the State sought to establish was the time that defendant went off, and, according to the undisputed evidence, he left there about 1 o’clock. The sheriff of Carroll County testified that the defendant admitted to Mm that he left home about 1 o’clock and went down to the creek. Other witnesses corroborated tMs, and showed that the defendant was not at home in the middle of the day. Now, these are undisputed facts, and the contradictory statement of the witness, Alexander Davidson, was not important in fixing the time that defendant went away. It was testified by the witness that he went away and that he had an axe with Mm when he went off towards the barn, and the only question is as to the time that tMs occurred. The time is fixed by the testimony of the sheriff, and it is undisputed; so it is impossible to discover any prejudicial effect from the admission of the contradictory statements of tMs witness.

The next assignment relates to the refusal of the court to allow defendant’s counsel to interrogate a witness introduced by the State, one Matlock, concerning his prejudice against the defendant.

It was, of course, competent for the defendant to show that fact in order to affect the credibility of the witness, and the court ought to have allowed the questions to be asked. McIlroy v. State, 100 Ark. 344.

The testimony of this witness related, however, to facts and circumstances which were thoroughly established by the testimony of several other witnesses and wMch are uncontradicted.- All of the witnesses introduced on that subject, including Matlock, testified to discovering the evidences of the crime and the situation of different objects in the locality, and also to the fact of defendant dropping Ms socks out of the window. These facts were, as before stated, established beyond dispute by testimony of other witnesses who were not impeached, and, therefore, must be taken as undisputed facts. It would not have aided defendant’s, case in the slightest for him to have broken down the testimony of Matlock by the method of impeachment which he attempted. No prejudice, therefore, resulted from this erroneous ruling of the court, and it does not call for a reversal of the case.

Objection is made to the introduction of testimony concerning the finding of the pistol, which was found near the scene of the killing on Sunday after the killing.

We think this testimony was competent, as the evidence tended to show that the pistol was owned by the defendant and that it was secreted under the leaves and brush near the scene of the killing. The State was entitled to have this fact go to the jury as a circumstance indicating defendant’s presence there on that occasion.

s A similar objection was made to the introduction of testimony concerning the finding of the axe two days after the killing, and the testimony as to the chemical analysis of the blood on the axe.

The State proved by the testimony of an expert that it was human blood on the axe, and, considering defendant’s opportunities for having the axe in his possession and the fact that he was the last person seen with it, and, in fact, the only person who was seen with it in his possession on the day of the killing, it was competent for this testimony to go to the jury. The State adduced proof tending to show that the axe, from the time it was found at the woodpile on Saturday, was carefully preserved by the sheriff in-the condition in which it was when found until delivered to the chemist.

Another objection was to the testimony of Miss Gertrude Barham, a sister of deceased, to the effect that defendant offered to escort her sister home from a party, but that after she refused to accept his attentions he used some language about her which the witness expressed a desire not to repeat. After relating the incident, she was asked to repeat the language which defendant used, and her reply was, "I rather not.” Counsel for the State then asked why, and an objection was interposed, which was overruled, and she gave as a reason that the language was of such a nature that she (witness) did not want to repeat it.

Now, it would have been improper for the court to refuse to require the witness to state what the language was, but counsel for the defendant did not ask the court to require the witness to state what the language was. The manner in which the exception appears in the record shows that they were objecting to any statement on the subject at all. Doubtless, if it had been suggested to the court, the witness would have been required to state what the language was.

We think that under those circumstances the defendant is not in any position to ask for a reversal because the witness was allowed to state that she preferred not to repeat the language.

There are two or three other exceptions to the rulings of the court in regard to admissibility of testimony; but we do not find them to be of sufficient importance to call for discussion.

Our conclusion is, that the court committed no prejudicial error in that regard.

The record shows that during the argument, the prosecuting attorney referred to the testimony of Miss Barham and used this language:

"You have a right to consider this conversation with Miss Barham in presence of her sister, gentlemen of the jury, so unexplained by any one and unexplained and undenied by any one, and I call on them now to explain this conversation, if untrue.”

It is urged that this amounted to a comment on the failure of the defendant to testify.

We do not think that that is the proper construction to place on the language of the prosecuting attorney. It is not a comment or criticism on the defendant’s failure to testify in his own behalf, but was the expression of the opinion of counsel that the testimony had not been rebutted and it should be accepted as true. Davis v. State, 96 Ark. 7; Culbreath v. State, 96 Ark. 177.

The objections pointed out by counsel to the instructions of the court are not of sufficient importance to discuss.

Upon an examination of the whole record, we are convinced that the case was fairly tried below and that the evidence was sufficient to sustain the conviction. The judgment is, therefore, affirmed.

Wood and Smith, JJ., dissent.