149 Ark. 311 | Ark. | 1921
(after stating the facts). Counsel for appellant cite a number of authorities to the effect that the trial court cannot serve both as a witness and the court in the same trial. In the instant case the trial court might well have refused to testify, for the incident about which the judge was interrogated occurred in open court at the preceding term, and in the presence of the 'entire grand jury and many witnesses, including, it seems, counsel for appellant. ÍWhat we have said about the judge is equally applicable to the former prosecuting attorney. The proof of the statements of Myrtle Johnson about the paternity of her child could have been made by numerous witnesses; but there was no necessity for making this proof by the judge or any other witness, for the reason that Myrtle Johnson, at the trial, admitted making the false statements before the grand jury. The circumstances about which appellant desired to examine the judge and the former prosecuting attorney stood as an admitted, undisputed fact at the trial. The witness herself admitted, at the trial from which this appeal comes, that she had swiorn falsely before the grand jury; but we cannot, on that ground, say her testimony at the trial should be discarded. She made the explanation that appellant had threatened to whip her with his razor strop if she told the grand jury about him.
Neither can we say that the testimony of Myrtle Johnson as to the time and place and circumstance of the acts of sexual intercourse cannot be credited by the jury. The jury was told that there could be no conviction unless they were convinced beyond a reasonable doubt that appellant had had intercourse with Myrtle Johnson within three years of the finding of the indictment. Testimony on appellant’s behalf appears to show that the only dance given by him on July 4 occurred in the year 1914. But we do not stop to reconcile the contradictions in the testimony of the witnesses. In July, 1914, Myrtle Johnson was only nine years old. Her own age, as well as that of her baby, make it certain that the baby was not begotten at that time.
This court, in the case of Cooper v. State, 86 Ark. 30 — which was a seduction case — :said that the jury was not bound to accept as true all of the testimony of the State, nor of the defendant, but might find the truth to be partly on one side and partly on another. So, the jury here may have accepted portions of the testimony, and rejected other portions. Myrtle Johnson testified that appellant was the father of her child, and that the intercourse occurred in July about three years before the trial. This testimony is legally sufficient to support the verdict, and we need make no further recital of the contradictions which appear in the testimony. Oakes v. State, 135 Ark. 221; Moore v. Thomas, 132 Ark. 97; Rose v. State, 122 Ark. 509.
No error was committed by the court in refusing to charge the jury that appellant was not guilty of the crime of rape, for if it'be conceded that the testimony was not legally sufficient to support a conviction of that charge, it may be said that he was not convicted upon that charge. The jury acquitted him of the crime of rape, and no error resulted, therefore, in submitting that question to the jury. Easley v. State, 109 Ark. 130 ; Kil-gore v. State, 73 Ark. 280; Rogers v. State, 60 Ark. 76; Baine v. State, 132 Ark. 416; Hays v. State, 129 Ark. 324; Tolliver v. State, 113 Ark. 142.
The indictment in the case charged appellant with the commission of the crime of rape, and that of carnal abuse as well. It was permissible thus to indict him. Peters v. State, 103 Ark. 119; Henson v. State, 76-Ark. 267; Rose v. State, 122 Ark. 509. He was acquitted of the first charge, and was convicted upon the second, on testimony which, we have said w;as legally sufficient to snis-tain the conviction. No prejudice resulted, therefore, in thus submitting the case to the jury.
Complaint is made of the action of the court in permitting Myrtle Johnson to he recalled for further examination after the State had closed its case. The order of procedure’ rests largely in the discretion of the trial court, and the action complained of does not appear to constitute an abuse of that discretion.
The child was exhibited to the jury. But this was not error. Cook v. State, 96 Ark. 552. The age of the child in this case was a highly important circumstance, and its appearance would have probative value in determining that question.
The court permitted the prosecuting attorney, in the cross-examination of appellant, to ask him if he had not illegally cohabited with his first wife before he married her, and appellant answered that he had. In admitting this testimony the court told the jury that the testimony could not be considered upen the question of guilt or innocence of the accused, and expressly limited it to the credibility of the witness. As thus limited, the testimony was competent. Hunt v. State, 114 Ark. 239; Ware v. State, 91 Ark. 555.
It is insisted that reversible error was committed when the court permitted the prosecuting attorney - to refer to the baby as “Little Tom Powell.” This was not error. There was a baby, and the theory of the prosecution was that it had been begotten as a result of the illicit intercourse with which -appellant stood charged, and the prosecuting attorney was within the bounds of legitimate argument in referring to the baby as the child of appellant. No error appearing, the judgment is affirmed.