James v. State, 125 Ark. 269

James v. State

125 Ark. 269 | Ark. | 1916

McCulloch, C. J.

The defendant appeals from a judgment of conviction of the crime of carnal abuse. He did not testify in his own behalf, and the fact of his having had sexual intercourse with the girl named in the indictment was established by abundant testimony; but the principal defense was that the girl was not shown to be under sixteen years of age.

(1-2). Defendant moved for a postponement of the trial to a subsequent term of the court in order to enable him to procure the attendance of two witnesses by whom he expected to prove that the girl had admitted that she was more than sixteen years of age. The principal assignment of error concerns the ruling bf the court in refusing to postpone the trial. It is alleged in the motion that subpoenaes had been issued for the absent witnesses, and that they could not be found by the sheriff, and were temporarily out of the State, but that their attendance' could be procured at the next term. The whereabouts of the witnesses was not stated, nor was there any statement of fact upon which the assertion was based that their attendance could be procured at the next term. The motion was therefore not conclusive of the right to a postponement of the case, and we cannot say that the court abused its discretion in refusing to grant the continuance. Defendant should have pointed out to the court the circumstances under which the.witnesses were absent, and shown the facts on which he based his claim that he could procure their attendance at a subsequent date. Besides that, there were other witnesses who testified to the same fact concerning the statements of the girl as to her age; and the testimony being cumulative there was no error in refusing to postpone the trial to obtain it.

(3-4) The next assignment relates to the ruling of the court in permitting a physician to testify concerning the date of the birth of the girl. The physician, Dr. Christian, produced his books which showed an entry of a charge against the girl’s father for professional services on a certain day, and the entry in connection with the explanation of the physician showed that it was a case of child-birth. The physician testified that he made the entry immediately after the occurrence, probably the next day, and that he knew from the entry that a child had been born to those parents on that day. The entry in the book did not show whether the child was a girl or a boy, and the physician did not pretend to have any recollection on that subject, but the other testimony identified this girl as being the child that was born on that occasion. The entry, in connection with the testimony of the physician establishing its authenticity, was competent evidence tending to show the date of the birth of.the girl on whose body the defendant committed the crime. St. Louis, Southwestern Ry. Co. v. White Sewing Machine Co., 78. Ark. 1. For the same reason, the testimony of the girl’s father concerning an entry in the family Bible was competent evidence tending to show the age of the girl.

(5') There is another assignment of error concerning the alleged improper argument of the special counsel for the State. It developed in the testimony that the defendant was a married man and had a baby about two months old at the time the alleged offense was committed, and the attorney in his closing argument commented on that fact. We think that it was proper to call to the attention of the jury the fact that the defendant was a married man, in aggravation of the offense, and it was not improper for the jury to consider that fact in fixing the punishment.

Judgment affirmed.