Davis v. State ( 1922 )

Hart, J.

John Davis and C. F. Johnson-were separately indicted for the crime of rape, and by consent were tried together.

The testimony for the State shows that John Davis and C. P. Johnson each committed the crime of rape upon the person of Euthy Holey, a girl fifteen years old, in Union County, Arkansas, during the first part of June, 1922. The defendant, Davis, admitted having sexual intercourse with Euthy Holey, but said that it was done with her consent. Johnson denied having had intercourse with her at all.

The jury found the defendant, John Davis, guilty of rape on the person of Euthy Holey as charged in the indictment. The jury found the defendant, C. F. Johnson, guilty of carnal abuse on the person of Ruthy Goley, and assessed his punishment at five years in the State Penitentiary.

From the judgment and sentence of conviction each defendant has duly prosecuted an appeal to this court.

Counsel for the defendants do not claim that the evidence for the State is not sufficient to warrant the verdict. Hence we do not deem it necessary to abstract the evidence adduced at the trial, and need only say that the testimony of Ruthy Goley, if believed by the jury, supports the verdict returned in each case.

The first assignment of error relied upon for- a reversal of the judgment is that the court erred in refusing to grant the motion of the defendants for a change of venue.

Dr. W. L. Miles was one of the supporting witnesses to the petition of each of the defendants. Assuming that he was a credible witness within the meaning of the statute, still the court did not abuse its discretion in refusing to grant the motion, because it cannot be said as a matter of law under the evidence disclosed by the record that the other affiant in either ease was a credible person under the statute.

Sec. 3088 of Crawford & Moses’ Digest requires that a petition for a change of venue should be supported by the affidavit of two credible persons.

W. W. Wagner was one of the supporting affiants. On his examination before the court he stated that he was in charge of a transfer company located at El Dorado, the county seat of Union County, and that his duties seldom required him to go outside of the city. He had not been outside the city since the defendants were accused of committing the crime in question, except to go to the oil wells near the city. On one occasion he saw a crowd near the courthouse -and was informed that it was waiting to get hold of the defendants to lynch them. He did not know where the crowd came from, but thought that they were from the town of El Dorado and from the neighborhood where Ruthy Groley lived. He had never heard any one say that Davis and Johnson could not get a fair and impartial trial in Union County. He based his opinion that they could not get such a trial on what he saw at the courthouse and what he heard in a barber shop in the city of El Dorado.

C. M. Barker was a remaining affiant. According to his testimony, he had come from Little Rock to El Dorado about a year before the crime in question was charged to have been committed. He made an affidavit that Johnson could not get a fair trial in Union County, and based 'his opinion on what he heard people say at his drugstore in the city of El Dorado. He did not recall whether he had heard any particular person say that Johnson could not get a fair trial in Union County. His opinion was based upon what he heard from the mob. He was asked if he knew what the people in the various outlying townships in the county thought about the case, and he said that he knew nothing about it.

The examination of these two supporting affiants showed that they had no general acquaintance throughout the county and had not visited a large proportion of the townships of the county. They had heard no expression of the general sentiment of the electors, and their information was of a local character. They based their opinion upon the formation of a mob composed of the citizens of the city of El Dorado and of the neighborhood where the prosecuting witness lived, which had gathered at the, courthouse while the examining trial of the defendants was being held. Therefore, the court did not abuse its discretion in holding that two credible persons had not signed the petitions for a change of venue, as’ required by the statute. Dewein v. State, 120 Ark. 302; Ware v. State, 146 Ark. 321, and Avey v. State, 149 Ark. 642.

Counsel for defendants also urge that the petition for a change of venue should have been granted because 138 jurors out of 173 jurors summoned were excused because they had formed an opinion in the case of the guilt of the defendants. This fact did not show that the defendants could not obtain a fair trial in a large and populous county like Union County. Indeed it is rebutted by the fact that a jury was selected out of a venire of two hundred electors; and the defendants did not exhaust the peremptory challenges allowed them under the statute.

The next assignment of error is that the court erred in refusing to grant the motion of the defendants for a continuance. The motion sets up that the defendants could show by a man named Harris that, if he were present, he would testify that he was present in the room where the prosecuting witness states that Davis and Johnson committed the rape upon her, and that neither of the defendants had sexual intercourse with her at all.

In the first place, it may be stated that the testimony of this witness, if given before the jury, as set out in the motion for a continuance, would have been directly contrary to the testimony given by the defendant, Davis. Davis admitted having voluntary, sexual intercourse with the prosecuting witness at Johnson’s rooming house, and stated that no one else was in the room when it occurred. Besides this, the motion failed to state that the witness was not absent by the consent, connivance, or procurement of the party asking for the postponement, as required by sec. 1270 of Crawford & Moses’ Digest.

Again, no showing was made that the attendance of the absent witness could be procured at a subsequent term of the court. . Hence the denial of the motion was not an abuse of discretion by the court. Davis v. State, 95 Ark. 555, and Owens v. State, 120 Ark. 562.

. It is next insisted that the judgment should be reversed because the circuit court did not instruct the jury that, if it found the defendants guilty of the crime of rape, it might assess their punishment at death or life imprisonment in the penitentiary, as • provided in § 3206 of Crawford & Moses’ Digest.

The record shows that the court expressly told the jury that, if it found the defendants guilty of rape, it might assess their punishment at death or life imprisonment in the State Penitentiary. Therefore, this assignment of error is not well taken.

The next assignment of error is that the prosecuting attorney was permitted to make certain prejudicial remarks in his opening statement of the case to the jury. The record on this assignment of error, is as follows:

“ ‘It is indeed regrettable that cases of this kind must be brought before our bar of justice. ’

‘ ‘ 1 The people of El Dorado and Union County are to be commended for their good behavior in this matter.’ “ ‘It is true that three or four hundred men assembled here on the day set for the examining trial. ’

“The defense objected to each of the above remarks as being prejudicial to the cause of the defendants, and the court instructed the jury to disregard them.”

It will he noted that the court instructed the jury to disregard the remarks made by the prosecuting attorney, and this, we think, had the effect to cure any prejudice that might have resulted to the defendants from the remarks. Walker v. State, 138 Ark. 517; Sims v. State, 131 Ark. 185, and Williams v. State, 131 Ark. 269.

The next assignment of error is that the judgment should be reversed because the court did not read the instructions to the jury.

The record shows that the court itself did not read the instructions to the jury, but permitted them to be read and argued by the prosecuting attorney and by the attorneys for the defendants.

Sec. 3179 of the Digest provides that when the evidence is concluded the court shall, on motion of either party, instruct the jury on the law applicable to the case. This is a part of our statutes regulating the procedure in criminal cases, and we have no provision requiring the presiding judge to read his charge to the jury.

The record affirmatively shows that the attorneys for the defendants were allowed to read and argue to the jury the instructions prepared by themselves in the case. The record further shows that these instructions were given. The omission of the presiding judge to himself read the instructions to the jury merely affected the method pursued and did not deny the defendants any rights under the statute or operate to their prejudice.

The record shows that the defendants saved exceptions to the State’s instructions Nos. 1 to 4. The record also shows that these instructions were not read to the jury by the court but were read to it by the prosecuting attorney. It does not show, however, that any objection was made by the defendants to this course. Hence this assignment of error is not well taken. Wells v. State, 151 Ark. 221.

"While no prejudice resulted to the defendants in this case, the practice is one which should not be resorted to except by reason of some physical disability of the presiding judge, and then be should direct the clerk to read them to the jury as the instructions of the court. The instructions are statements of the law applicable to the facts, and are given for the guidance of the jury in considering the testimony. Hence they should proceed directly from the presiding judge.

The instructions given by the court fully and fairly submitted to the jury the respective theories of the State and of the defendants. Indeed, no complaint is made about the iristructions by counsel for the defendants, except as already discussed.

"We find no reversible error in the record, and the judgment in each case will be affirmed.