| Ark. | May 12, 1913
Lead Opinion
(after stating the facts). The indictment alleges that the assault was made unlawfully and feloniously, with malice aforethought, and after premeditation and deliberation. This was sufficient, and the court did not err in refusing to sustain the demurrer to the indictment. Section 1588 of Kirby’s Digest; Dillard v. State, 65 Ark. 404" date_filed="1898-06-18" court="Ark." case_name="Dillard v. State">65 Ark. 404.
The defendant in his motion for a new trial assigns as error the action of the court in admitting certain evidence. We do not deem it necessary to set out the testimony or more particularly refer to it. It is sufficient to say that we have examined the transcript and it does not appear that the defendant excepted to the ruling of the court in admitting it. Under our rules of practice, the defendant must first object to the introduction of evidence and, if the court admits the evidence over his objection, he must except to the ruling of the court. This the defendant did not do and we can not consider his objection. Walker v. State, 39 Ark. 221" date_filed="1882-11-15" court="Ark." case_name="Walker v. State">39 Ark. 221; Burris v. State, 38 Ark. 221" date_filed="1881-11-15" court="Ark." case_name="Burris v. State">38 Ark. 221; Green v. State, 38 Ark. 304" date_filed="1881-11-15" court="Ark." case_name="Green v. State">38 Ark. 304; Meisenheimer v. State, 73 Ark. 407" date_filed="1904-12-24" court="Ark." case_name="Meisenheimer v. State">73 Ark. 407.
The record shows that the defendant’s wife first claimed that her husband cnt her with a razor and afterwards testified in the examining court that he did not cut her and that she did not know who did cut her. Because of her change in testimony, she was indicted for perjury. At the beginning- of the tiial the defendant agreed to try this case at the same timé and together with the perjury case against his wife. He now contends that, although he consented to do this, the action of the court in permitting it was error. The precise question has never been determined by this court and, so far as our examination discloses, by any other court. In the case of McClellan v. State, 32 Ark. 609" date_filed="1877-11-15" court="Ark." case_name="McClellan v. State">32 Ark. 609, two separate indictments were returned against the same defendant, and, by his consent, he was tried upon both indictments at the same time. The case was reversed for other reasons and the court said that the trial of the defendant upon both indictments at the same time was an irregularity, to say the least of it, and that such practice would certainly produce great confusion ancl uncertainty and should be condemned. It must be conceded that irregularities come at first by degrees and are tolerable because no perceptible injury has followed the ■ first step, and such practice should not be allowed by the trial court. It does not follow, however, that the judgment below should be reversed alone on the ground of the irregularity here mentioned. The court had jurisdiction to try the charges made by the indictments against both parties, and had obtained jurisdiction over the persons of both of them. McDonald v. State (Ark.), 149 S.W. 95" date_filed="1912-07-08" court="Ark." case_name="McDonald v. State">149 S. W. 95. Although they were indicted separately, the same facts were involved in the trial of both cases. While the court would have no authority against the objection of the defendant to try the cases together, yet as the record affirmatively shows. the defendant expressly consented to it, and inasmuch as the record does not show he was prejudiced thereby, he can not now be heard to complain of the action of the court which was superinduced by him. Lucas v. State (Ala.), 3 L. R. A. (N. S.) 412. In discussing a somewhat similar question, in the case of Parker v. The People, 4 L. R. A. 803, the court said:
“While this order is not very happily expressed, it shows that the cases were consolidated for trial upon motion of the defendants. Why the consolidation was asked, we are not advised. It may have been for the purpose of saving expense to the defendants, or for some expected benefit to arise to them from having all the cases submitted to a particular jury; it is sufficient for the purposes of the ease for us to know that the consolidation was ordered to accommodate the defendants; and they can not be heard to complain of this action of the court induced by their request.”
The defendant also assigns as error the action of the court in admitting the testimony of his wife. Her testimony was admissible under section 3092 of Kirby’s Digest, which is as follows:
“In any criminal prosecution a husband and wife may testify against each other in all cases in which an injury has been done by either against the person or property of either.”
The testimony on the part of the State was sufficient to show malice on the part of the defendant and would have warranted a conviction of the defendant of murder if the death of his wife had ensued from the assault. Therefore, there was sufficient evidence to warrant a conviction of assault with intent to kill. Young v. State, 99 Ark. 407" date_filed="1911-06-12" court="Ark." case_name="Young v. State">99 Ark. 407. The instructions, given by the court were fair to the defendant and fully covered every phase of the charge embraced in the indictment.
The judgment will be affirmed.
Rehearing
on re-hearing.
Counsel in his brief on rehearing again insist that the court erred in not sustaining his demurrer to the indictment. As we pointed out in our opinion, the indictment charges the assault to have been made “unlawfully and feloniously, with malice aforethought, and after premediation and deliberation,” and in the case of Harding v. State, 94 Ark. 65" date_filed="1910-02-28" court="Ark." case_name="Harding v. State">94 Ark. 65, the court held that the use of these words mean that the act charged was wilful. Therefore, the court did not err in refusing to sustain the demurrer to the indictment.
Counsel has also presented to the court an amendment to the record so as to show that it was agreed that his exceptions to evidence might he preserved. In the case of Harding v. State, supra, the court held that'objections to evidence must be made to the circuit court before it can err in its admissibility. We have carefully examined the record and where it appears that objections were made by the defendant, to the evidence the court sustained them and, under the ruling in the Harding ease, he could save no exceptions by agreement with the court or otherwise, unless he made an objection to the evidence. Therefore, his amendment to the record avails him nothing, because the court sustained all the objections he made to the evidence. We have carefully considered the instructions given by the court and think they fully and fairly cover every phase of the case, and do not deem it necessary to comment upon them and review them at length.
The motion for a rehearing will be denied.