| Ark. | Dec 3, 1904
(after stating the facts.) This is an appeal from a judgment convicting the defendant of grand larceny and sentencing him to a term of one year in .the penitentiary. The Attorney General has confessed error on two grounds; first, that the transcript from the Little Riyer Circuit Court was not authenticated by the seal of that court; second, that the comments of the attorney assisting- in the prosecution on the failure of the defendant to testify were improper and prejudicial to the rights of the defendant, which grounds we will now notice.
i. As to the failure of the clerk of the Little .River Circuit Court to attach the seal of the court to the transcript. It is true that this court has several times held that a trial and conviction on a change of venue upon a transcript not authenticated by the official seal of the court is invalid, and could not be cured by attaching the seal after the trial. But this rule had its origin at a time when the attaching of a seal and other matters of form were given much greater weight than the courts now award to them. For a like reason it was for a long time held by this court that where the record on appeal failed to show a formal plea to the indictment the trial would be treated as had without an issue, and the judgment would be reversed, even though no objection had been made in the court below. Perry v. State, 37 Ark. 54" date_filed="1881-05-15" court="Ark." case_name="Perry v. State">37 Ark. 54; Lacefield v. State, 34 Ark. 275" date_filed="1879-11-15" court="Ark." case_name="Lacefield v. State">34 Ark. 275. But in the case of Hayden v. State, 55 Ark. 342" date_filed="1892-01-23" court="Ark." case_name="Hayden v. State">55 Ark. 342, Chief Justice Cockrill held, in effect, that these cases were in conflict with the statute which provides that a judgment of conviction should be reversed for prejudicial errors only. As the defendant in that case was not able to show that he had been prejudiced in any way on account of the absence of a formal plea, the court, following the statute, said that, they would treat as done that which the court and parties at the trial had regarded as done, and overruled the contention, and affirmed the judgment. This was a well-considered case, and the principle it announced is far-reaching; for it shows that the statute applies to all formal objections, such as the absence of a plea or a seal when the objection is made after trial, and that it forbids a reversal for such formal defects where no prejudice resulted. The purpose of the statute was to obviate the necessity of reversing judgments of conviction on account of mere errors of form which do not affect the substantial rights of the defendant. Sand. & H. Dig. § 2438.
Now, the jurisdiction of the Polk Circuit Court over this case depended mainly upon the order for a change of venue made by the Little River Circuit Court. It is not denied that a proper order for a change of venue wás made. The order for the change of venue was not only made, but a complete transcript of "that order and the other proceedings of the Little River court was made by the clerk and transmitted to the clerk of the Polk Circuit Court. No objection was made to this transcript until after the trial and conviction, and the only objection made now is that it did not bear the seal of the Little River court. But as the only purpose of the seal was to identify and prove the transcript, and as this transcript was genuine and perfect in every respect with the exception of the seal, we are unable to see how the absence of the seal could have prejudiced the defendant in the least degree. We are therefore of the opinion that, under the statute above referred to, the objection came too late after trial and conviction, and was properly overruled.
2. As to the comments of counsel on the failure of the accused to testify in a criminal case. The courts of some of the States hold that such comments are so prejudicial that the injury cannot be cured by instructions from the court, however forcibly given, but the weight of authority seems to be to the contrary, that such comments, though highly improper, may under some circumstances work no injury where the trial judge promptly intervenes, excludes the comments, and admonishes the jury to disregard them. 2 Enc. Plead. & Prac. 724. In other words, comments of that kind stand oh very much the same footing as other improper arguments, and whether they call for a reversal or not depends upon whether, after a full consideration of all the circumstances, including the action of the circuit judge at the time they were made, the appellate court is of the opinion that no prejudice resulted. Now, as the comments in this case were not made in the closing argument, nor by the prosecuting attorney, but by an attorney assisting in the prosecution, and, as the presiding judge promptly intervened, reprimanded the attorney, and instructed the jury to disregard the remarks, I feel, 'on that account and for other reasons, inclined to the opinion that no prejudice resulted. But a majority of the judges, after considering all the circumstances, have reached a different conclusion. They base their opinion, not alone on the improper argument, but also on the fact that when the jury, after being out several hours, returned into court, and announced that they were not able to agree, the court, over the objection of the defendant, repeated to them a single instruction on the sufficiency of circumstantial evidence to support a conviction. It'is conceded that it is within the province of the presiding judge to recall the jury and give them further. instructions when it is essential to the furtherance of justice that he should do so. About the propriety of doing so he is invested with a large discretion, and it is not always necessary that in such cases he should repeat the whole charge. National Lumber Co. v. Snell, 47 Ark. 407" date_filed="1886-05-15" court="Ark." case_name="National Lumber Co. v. Snell">47 Ark. 407; Allis v. U. S., 155 U. S. 123; 11 Enc. Plead. & Prac. 283-285.
But, as this instruction was repeated to the jury after they had reported that there was no prospect for an agreement, and without any request on tneir part that the charge, or any portion thereof, should be repeated, a majority of the judges are of the opinion that the action of the presiding judge in singling'out this portion of the charge and repeating it to the jury might well be construed by them as an intimation from the judge that the evidence was sufficient to convict. This opinion is strengthened by the fact that the jury shortly thereafter returned a verdict of guilty. Swaggerty v. Caton, 1 Heisk. (Tenn.) 202.
On the whole case, the majority of the judges are of the opinion that the confession of error should be sustained, and the judgment reversed, and cause remanded for a new trial. It is so ordered.