Carmen v. State, 120 Ark. 172

Carmen v. State

120 Ark. 172 | Ark. | 1915

Kirby, J.

The .allegations of the indictment under which the defendant was convicted sufficiently alleged the offense and no error was committed in overruling the demurrer thereto. Martin v. State, 58 Ark. 3.

(1) It stated in technical language that .the adultery was committed by defendant, a married man, with Ona Burns, his niece, iand, as said in Gaston v. State, 95 Ark. 233, “ The gravamen of the crime of incest is the unlawful carnal (knowledge, and it is unlawful because of consanguinity. The object of the statute is to prohibit by punishment the sexual intercourse of those who are related within the prescribed degrees. ’ ’

(2) Neither did the' court err in denying defendant’s plea of former jeopardy. The indictment under which he was first tried was not sufficient to sustain a judgment of conviction, not having alleged that the defendant was a married man at the time it was alleged he committed the adultery witli his niece, which constituted the crime of incest. Martin v. State, supra. And nothing short of an actual acquittal or conviction under such an indictment will confer immunity from further prosecution for the same offense upon the accused. State v. Ward, 48 Ark. 36.

(3) Moreover, there was no verdict or judgment upon the trial ¡but a mistrial, the court having discharged the jury, as it had the right to do, after they failed to agree upon a verdict and it satisfactorily appeared to him that there was no probability of one being reached. Sections 2396, 2397, Kirby’s Digest.

(4) Neither was error committed in denying the motion for a continuance. The court has large discretion in the granting or refusing of motions for continuance and, unless there appears to have been a manifest abuse of its discretion in the denial of such motion, its action will not be reversed, and there is no such condition shown here as would indicate any such abuse of discretion.

(5) The proof of conduct of defendant with his niece and acts of intercourse occurring at a time when the offense thereby committed would be barred by the statute of limitations was competent and admissible as tending to shed light upon the relations existing between the parties at a time within the statutory period, and shows the probability of the commission of the offense charged, and the court by proper instructions limited the jury’s consideration of it to this purpose. Adams v. State, 78 Ark. 16, 92 S. W. 1123; Taylor v. State, 35 S. E. (Ga.) 161; Commonwealth v. Bell, 31 Atl. 123.

(6) It is strenuously urged that the court erred in permitting the bond given by the defendant in the bastardy proceedings or any of the entries or judgments relating thereto to be introduced in evidence. This question has given us serious concern, but there was no adjudication by the county court in the bastardy proceedings that defendant was the father of the child of his niece with whom he is alleged to have committed incest, after a trial of the question, but it was shown that he voluntarily admitted that such was the fact upon being told by the county judge that a charge of the kind had been lodged against him and agreed to and did make the bond required by the statute in such cases without any warrant, having been issued or any trial thereof. The court, by appropriate instructions, limited the consideration of this matter by the jury to a voluntary .admission on the part of the defendant, and instructed them that if they should find he did not understand the purpose or effect of the bond, or didn’t understand enough about the transaction to know that he was charged with being the father of the child, that they should not consider it as an admission even, and we do not think any error was committed in this respect.

The case is unlike that of Ireland v. State, 99 Ark. 32, in which there wais a judgment against the county treasurer by the county .court, determining finally the amount he had failed to account for and pay over ,as treasurer, which also recited he was short in his accounts with the county in said .sum. That judgment being final could not be disputed or explained and it was held error to permit its introduction upon the trial of the criminal charge against the treasurer for embezzlement of the county’s fund.

The evidence is amply sufficient to support the verdict, and no prejudicial error having occurred in the trial the judgment is affirmed.