16 S.W.2d 991 | Ark. | 1929
Dan Durham was convicted of assault with intent to rape, and his punishment was fixed by the jury trying him at three years in the State Penitentiary.
The child upon whom the assault was alleged to have been committed was allowed to testify, and it is urged that the court erred in allowing her to do so. Before she was permitted to testify, the trial court examined her as to her competency. She was six years old, and stated that she had been to Sunday-school, where she was taught that if she told a lie she would go down to the badman. She also stated that if she told a story she would be sent to the jail house. She appeared small for her age, but was intelligent looking. The court ruled that she was competent, and there is nothing in the record to show that there was any abuse of judicial discretion.
In criminal cases this court has adopted the rule of the common law, that a witness of any age may testify in a criminal case, if, upon examination by the court, the witness appears to have sufficient intelligence to comprehend the nature and obligation of an oath and understands that there may be punishment for false swearing. Crosby v. State,
In this connection it may be stated also that the witness gave an intelligent account of how she had been assaulted by the defendant, and her testimony was corroborated by other facts and circumstances adduced in *509
evidence. Her own testimony, if believed by the jury, was sufficient to warrant a conviction. Wilson v. State,
It is next urged that the judgment should be reversed because the court went into the jury room and instructed the jury upon the form of its verdict, in the absence of the defendant. The record shows that the trial judge went into the jury room, at the request of the jury, and that the prosecuting attorney and the attorney for the defendant went with him. The defendant was only seventeen years of age, and the jury asked the court for instructions as to its right to return a verdict of guilty and its power to send the defendant to the reform school instead of the penitentiary. The court correctly instructed the jury as to the law in this respect, in accordance with Pittman v. State,
It is claimed, however, that the action of the court was prejudicial because, under 3192 of Crawford
Moses' Digest, it was the duty of the court to have the jury brought, into court and to have instructed it in the presence of the defendant. It is true that this court has held this provision of the statute to be mandatory, and it would have been the better practice for the trial court to have obeyed it. Wacaster v. State,
In the case before us, the attorney for the defendant was present, and did not make any objection to the action *510
of the court. Consequently he will be deemed to have waived any error of the court in this respect. In Davidson v. State,
Other cases supporting the general rule are as follows: McVay v. State,
The evidence was legally sufficient to warrant the verdict, and the case was tried in all respects with regard to the admission of evidence and the giving of instructions in accordance with the settled principles of law often decided by this court.
There being no error in the record, the judgment must be affirmed.