| Ark. | Jun 24, 1912
(after stating the facts). No brief was filed by counsel for appellant, and the motion for new trial assigns the following errors:
That the court erred in overruling the demurrer to the indictment, in the giving and refusing of certain instructions, in permitting improper argument by the prosecuting attorney, and in allowing the introduction of incompetent testimony.
The indictment is sufficient, and the court did not err in overruling the demurrer thereto. Evans v. State, 58 Ark. 52.
No exceptions were saved to the giving or refusing of any instruction, neither does the bill of exceptions contain any statement of the argument of the prosecuting attorney complained of, and, such being the case, this court can not review the action and ruling of the trial court relative thereto, as has often been held.
The next contention is that the court erred in permitting the introduction of the statements made by Hugh Jett Patrick to his wife immediately after the difficulty and just before leaving the dance, notwithstanding they were made in the presence of appellant, as well as his statement and request of Brown, relative to permitting him to have a fuss at his house the night of the dance, not made in appellant’s presence and also witness Rutledge’s statement that Hugh Jett Patrick requested him to get either one of the Roses out of the house for him, made in appellant’s absence.
The court, at the time of the objection to the introduction of the statement by the witness, Rutledge, said: “Unless defendant is connected with it, it would not be competent, but, as you have to ask the question at some point, go ahead, with the understanding that it is not competent unless they are connected together.”
The defendant excepted, and the court said: “The court instructs the jury, at this time, that the declarations made by Hugh Jett Patrick in the absence of James Patrick, do not bind James Patrick, unless the evidence further connects James Patrick. They have to start their evidence at some point, and the court can not direct them at what point.”
Objection to the statement of Hugh Jett Patrick to Ira Brown, asking permission to have the fight at the dance at his house in appellant’s absence, being made, the court stated: “The statement in the absence of James Patrick would not be competent unless you connect him with it.” Upon other objections as to the introduction of one of the statements, the court said: “The jury understand, unless they show they were connected together, it would not be binding oh the defendant, James Patrick.”
The court also finally instructed the jury “that, unless they found from the evidence that there was a conspiracy between the defendant and Hugh Jett Patrick to kill the deceased, Sterling Rose, or do him some great bodily injury, they should not consider any statements made by Hugh Jett Patrick, not in the presence and hearing of the defendant.”
If any of these statements made by the son of appellant in his absence were not competent, under the circumstances of this case, we are of the opinion that any prejudice that might otherwise have resulted to him on account of their introduction was removed by the court’s said directions arid instructions to the jury, and also that the testimony is sufficient to sustain the verdict.
Finding no prejudicial error in the record, the judgment is affirmed.