150 Ark. 27 | Ark. | 1921
The appellant appeals from a judgment of conviction for carnal abuse. ITe presents two questions for our consideration.
The court held that the juror was qualified, to which counsel for appellant objected, and appellant excused the juror. The appellant afterward exhausted all his peremptory challenges. The appellant duly excepted to the ruling of the court in holding the juror, King, qualified. The court did not err in its ruling. The testimony of Doctor King only tended to prove that he made a vaginal examination of the prosecuting witness and found that her hymen had been ruptured, but there was nothing to indicate whether she had had sexual intercotirse three or four days before. His testimony did not tend to prove any fact connecting the appellant with the commission of the offense charged against him, and the appellant did not attempt in any manner to controvert his testimony. Besides, the answers of the juror to the questions propounded by the court and counsel showed that he was an impartial juror and would not, on account of his relationship to Doctor King,’be biased against the appellant in the consideration of his case; that he would not give any greater credence to the testimony of Doctor King on account of his relationship to him than he would that of any other credible witness.
To this the court responded: “Well, the court wouldn’t feel like making any agreement about it, gentlemen; you will just have to do your duty regardless of that. You haven’t-a right really to consider those things. The question is just one of guilt and innocence. ’ ’ To this the foreman responded: “ Of course, we understand that, but we didn’t know whether you could enter into that kind of an agreement with us or not.” The court replied : “ I do not feel like the court ought to enter into an agreement of that kind. On a question as to the amount of punishment, you could consider that, of course, but the law fixes the minimum punishment; you have a right to fix that at anything within the range which the law prescribes. If you find the defendant guilty, then as a matter of course a punishment ranging in between one and twenty-one years follows. You can now retire. It is your duty to come to a verdict if -the evidence convinces you beyond a reasonable doubt of his guilt.”
The appellant objected and excepted to the rulings of the court. The jury retired to further consider their verdict, and later returned into court and rendered the following verdict: “We, the jury, find the defendant euilty as charged, and fix the punishment at one year in the penitentiary.” ■
Afterward the appellant filed his motion for a new trial, and assigned as one of the grounds of his motion “that the court erred in .giving its instruction to the jury when they returned to the courtroom after having deliberated for a considerable length of time, and which proceeding was had in the following manner: ” (Setting forth the proceedings as above.) To sustain this ground of his motion the appellant introduced as witnesses before the court several of the trial jurors, who testified substantially to the effect that the jury had not agreed upon a verdict of guilty at the time they sought information from the court as to whether or not the court could suspend sentence before the jury returned a verdict of guilty. One juror said: “We took the points of the ease into consideration and decided that we could come to a verdict and petition or ask the judge to stay the sentence.” Before that they had not come to a verdict. Some of the jurors- in the consideration of their verdict offered that as an inducement to finally agree on a verdict of conviction. One of the jurors further stated that, after taking the evidence of the case into consideration, they agreed to come to a verdict and then petition for a stay of the sentence. The agreement to petition the court for a stay of the sentence and to return a verdict of guilty “all came in together and was discussed at the same time.” The purpose of the agreement to petition the judge for a stay of the sentence was “to bring about an agreement on the verdict of conviction.” This juror further testified that the court informed the jury, when they sought the information, that “the verdict would have to be reached before anything could be done.” They went back to the jury room and afterward returned their verdict.
The juror further stated: “My understanding of it was that, by reaching a verdict and coming to a verdict, that the judge should be petitioned afterward to stay the sentence.” He further stated, in response to a question by the court: “The jurors were all agreed on the; facts of the case, and thought from the evidence that the defendant had carnal knowledge of this prosecuting witness according to the testimony. Up to the time the agreement was entered into to seek information from the court, some of the jurors had voted on all votes taken on the question of guilt, or innocence 'not guilty.’ ”
Another one of the jurors stated that, after the jurors couldn’t get together, they went into an agreement to petition the judge. “They thought the punishment was too severe, and the fellows that were not for 'guilty’ wouldn’t agree to anything, and that agreement to petition the judge brought the jurors who prior to that time were voting for ‘not guilty’ to vote for a verdict of ‘guilty.’ ” It was the information of this juror that the verdict of “guilty” would uot have been agreed to by all of the.jurors but’ for the agreement by all of them to petition for a stay of the sentence.
The ruling of the court was correct. At the time the verdict was rendered the appellant did not ask to have the jury polled, which he had the right to do. If he had done so, and any of the jurors had answered that the verdict returned was not their verdict, then the verdict could not have been received. Section 3216, C. & M. Digest.
The proceedings, to which the appellant objects, were brought to the attention of the court after the verdict had been received and the jury discharged. The only testimony by which appellant sought to impeach the verdict was by the jurors themselves. “A juror can not be examined to establish a ground for a new trial, except it be to establish as a ground for a new trial that the verdict was made by lot.” Section 3220, C. &. M. Digest; Pleasants v. Heard, 15 Ark. 403; Fain v. Goodwin, 35 Ark. 109; Smith v. State, 59 Ark. 132; Griffith v. Moore, 70 Ark. 244; Wilder v. State, 29 Ark. 293; Williams v. State, 66 Ark. 264; Hampton v. State, 67 Ark. 266; Osborne v. State, 96 Ark. 400. See, also, Capps v. State, 100 Ark. 109; Jenkins v. State, 131 Ark. 312; Kindrix v. State, 138 Ark. 594; Speer v. State, 130 Ark. 457-464.
The appellant does not contend, and indeed it could not be contended, that the testimony of any of the jurors proved that the verdict was arrived at by lot. There was no element of chance, hazard, or fortune in the method by which the verdict was decided, as shown by the testimony of the jurors. “Lot” is defined to be “a contrivance to determine a question by chance or without the action of man’s choice or will.” Webster’s Dict.; Chavannah v. State, 49 Ala. 396; Loiseau v. State, 22 So. 138; Johnson v. State, 34 So. 1019. See also Lynch v. Rosenthal, 144 Ind. 86; 42 N. E. 1103, 31 L. R. A. 835.
In Speer v. State, supra, at page 464, we said: ‘ ‘ Lot involves an element of chance.” To allow a verdict to be impeached, in the manner herein attempted would contravene the statute and be subversive of a sound public policy which the statute was intended to conserve.
The judgment is correct, and it is therefore affirmed.
