At the August term, 1911, of the Desha Circuit Court, the defendant, W. S. Rhea, was indicted upon the charge of murder in the first degree. It was alleged in the indictment that on May 18, 1911, one Jim Hubbard did kill and murder Vital Archard by shooting him with a gun, and that the defendant was present and did aid, abet and encourage said Hubbard in the commission of said crime. The trial resulted in a verdict finding the defendant guilty of murder in the first degree. He filed motions in arrest of judgment and for a new trial, and, both being overruled, he has prosecuted an appeal to this court.
The indictment was returned at a regular term of the Desha Circuit Court begun on the fourth Monday of August, 1911. It is contended that the term thus held by the Desha Circuit Court was at a time not authorized by law, and, for this reason, the indictment then returned and all proceedings had thereunder are illegal and void. The Legislature of 1911 enacted a statute, which was approved on May 26, 1911, changing the time of holding the terms of the circuit courts in the Eleventh Judicial Circuit and fixing the time of holding said courts in Desha County on the third Monday in January and the fourth Monday of August of each year. (Acts 1911, p. 283.) The statute concludes with the provision that “this act shall take effect and be in force ninety days from and after its passage.” It is contended that, under the constitutional amendment commonly known as the Initiative and Referendum, the passage of the above statute did not occur until ninety days after the adjournment of the General Assembly, and that it did not become effective until ninety days after that time had passed, in other words, not earlier than 180 days after the adjournment of the General Assembly, which was later than August, 1911, at which time the term of court was held wherein this indictment was returned. ■ This contention is the same as that which was made in the case of Jackson v. State,
A number of grounds are set forth in the defendant’s motion for a new trial and pressed upon our attention why the judgment of conviction should be reversed. These grounds may be grouped under the following heads: It is contended (1) that there is not sufficient evidence to sustain the verdict which was returned; (2) that the court erred in its rulings relative to the admissibility and rejection of certain testimony; and (3) that it erred in rulings made by it in giving and refusing certain instructions.
1. The defendant was the manager of a plantation situated in Desha County, about ten or twelve miles from Dumas and known as the Lenox place. He was the only white man on this plantation, and had employed under him a number of negroes as tenants and laborers who worked and cultivated the place. Among these was one Grant Sanders, who, prior to coming to the Lenox place, had lived at Farrell, Arkansas. There he had been arrested and placed under bond for the crime of assault with intent to kill, on which a negro by the name of West was surety. Subsequently a charge of murder was lodged against Sanders, upon which a warrant of arrest was issued, and the surety on said bond desired to surrender him into custody. The deceased, Vital Archard, was a constable residing at Farrell. Into his hands the warrant against Sanders was placed for execution, and said bail authorized him to arrest him for the. purpose of surrendering him into custody. On May 13, 1911, Archard and West proceeded by rail to Dumas for the purpose of going to the Lenox place and there arresting said Sanders. At Dumas Archard met the defendant, and told him that he was seeking Sanders for the purpose of making his arrest. Later he proceeded in a wagon obtained from a fisherman, in company with said West, to the Lenox place, where he arrived about 4 o’clock on the afternoon of the same day. In the meanwhile, defendant sought a justice of the peace at Dumas and asked him if Archard had a right to arrest Sanders. After examination, the justice of the peace told him that Archard was authorized to make the arrest upon a surrender made by his bail. The defendant then said: “I’m glad you found that law. I had made up my mind to take my gun and not let him have him.” Thereupon the defendant telephoned to the manager of a plantation situated about one mile from the Lenox place, and requested him to send a message to Grant Sanders, telling him that there was “an officer on the way after him,” and “for him to hide out until he got home.” This was done, and when Archard and West arrived at the Lenox place they found that Sanders was in hiding on an adjoining farm, but succeeded in arresting him. At the request of Sanders, they remained with him at the Lenox place until the defendant’s return. The defendant had gone to Dumas in the early morning with a number of laborers and wagons for the purpose of securing certain freight. He left Dumas late in the evening in company with his laborers and wagons, and arrived at the Lenox place about 8 or 9 o’clock of the same evening. At the gate near his dwelling he met Archard and West, who had said Sanders with them under arrest. There is a sharp conflict in the testimony on the part of the witnesses on behalf of the State and that of the defendant as to what was then said, and what was thereafter done, and there is quite a discrepancy in the testimony of some of the witnesses on behalf of the State as to some of the details as to what was then said and as to what happened.
From the testimony on the part of the State, however, the jury, we think, were warranted in finding that the defendant and Archard talked for a short time at the Lenox gate. The defendant- offered to go upon Sanders’s bond, and Archard told him that he could not do so for the reason that he had a writ charging him with the crime of murder, and that he had to take him back to Farrell for trial, where he could go and make the bond. He asked the defendant what he thought about it, and the defendant-replied: “Not1 a damned thing.” Thereupon Mr. Archard and West, with Sanders under arrest, proceeded on foot to Dumas. After they left, the defendant said that he was going to overtake Archard and take Sanders away from him and bring him back; that he would hot permit any one to come on his place and take his hands away when he forbade it. Thereupon he ordered his hostler to get mules for the negroes, whom he directed to accompany him, and a negro to get from the cabins certain guns and pistols with which to arm them. In company with five negroes who worked upon his place, the defendant then proceeded to overtake Archard. He was riding a horse and the negroes were on four mules, two of them riding double. The negroes who thus accompanied him were Jim Hubbard, Major Davis, Joe Berry, Robert Johnson and Mack Tucker, and all of them testified on behalf of the State in the trial, except Hubbard and Tucker. They overtook Archard and Sanders about two miles from the Lenox gate. Sanders had a handcuff upon his wrist which Archard was holding, and West had been sent ahead to obtain a conveyance, and was at the time about 200 or 800 yards distant from them. As the pursuing party rode up, one of them cried out for Archard to hold up, and another cried out: “Turn that damned negro loose,” and almost immediately the defendant, who was in the rear of Archard, fired his pistol at him, and Hubbard, who was somewhat in front of him and to his side, shot Archard with a shotgun. The negroes accompanying the defendant fled back to the Lenox place, principally on foot, and the defendant returned upon his horse. Sanders also fled to the Lenox place, where a laborer, at defendant’s direction, filed the handcuff from his wrist. West fled to Dumas upon a mule which he obtained from a party further along, the road. There he told of the shooting, and an officer and others went to the scene of the killing. Archard had fallen upon his face in the road and was paralyzed in his lower extremities. A pistol or rifle shot had taken effect in his back about the shoulder, penetrating straight in, and a shotgun wound was found at the juncture of the neck and shoulder, about the seventh cervical vertebra, severing, to some extent, the spinal cord. He was taken to Dumas, where he arrived about 7 or 8 o’clock on the morning of May 14, and taken immediately to the office of Doctor Isom, who, in conjunction with other physicians, attempted to perform an operation on him, but Archard died within thirty minutes thereafter, while still on the operating table. This, in substance and briefly stated, is the state of facts made out by the testimony adduced on behalf of the State.
The defendant testified that when he met Archard in Dumas, and was told by him that he desired to make the arrest of Sanders, he offered to assist him in making the arrest, and invited him to go to his house and remain overnight. "He stated that Archard was drinking, and under the influence of liquor, and refused his request. He testified that he had sought information from the justice of the peace as to the right of Archard to arrest Sanders, but denied that he had said that he had before that made up his mind to take his gun and not let Archard have him. He also staled that he had telephoned from Dumas requesting that a message be sent to Sanders telling him to hide out until he returned, but that he did this because he feared that Sanders, on account of his dangerous character, might do Archard an injury, and that he could help Archard to arrest him when he got home. He testified that when he got to his gate on the Lenox place he saw Mr. Archard and West, and Sanders in their custody, and that Sanders asked him to come to his rescue; that he told him he couldn’t do anything for him; that Mr. Archard said that Sanders would be tried Monday, and thereupon Sanders asked him to come to the trial; that he told him he could not do so, and would not go on his bond. Thereupon Archard and West and Sanders left. He stated that, as- they left, one of his negro laborers, Joe Berry, who was acquainted with West and Archard, walked off with them a piece, and when he returned he said that he thought that he could persuade West to turn Sanders loose; that some of the negroes then said that they would go out and endeavor to get Sanders turned loose. He testified that thereupon he told them not to do anything of the kind, for the reason that the officer did not have any right to turn Sanders loose, and that he then went into his house. He stated that he then engaged'in reading his correspondence and entering items in his account book until he, retired. He testified that he was not along with the negroes when Archard was shot, and knew nothing of the homicide until the afternoon of the following day, when he was arrested.
The witnesses on behalf of the State, Joe Berry, Major Davis and Robert Johnson, who were in the crowd or mob which pursued and overtook Archard, were all indicted for his murder. Each of them testified that the defendant Rhea organized and led the crowd, and was present when Archard was shot and actually fired the first shot, which took effect in his back. It is contended by counsel for defendant that these parties were all negroes and the friends of the negro, Sanders, who was under arrest, and that these five negroes had conceived the plan of rescuing Sanders, and alone did the shooting which resulted in Archard’s death. It is insistently argued that these negroes had testified that the defendant had organized and led the crowd, and that they had accompanied him on account of fear, in order to gain immunity for themselves or to lessen any punishment that might be visited on them for this crime. To sustain this contention, they point to the fact that two of these witnesses stated immediately after the homicide, at the coroner’s inquest, that the defendant was not in the crowd which followed Archard and shot him, and also to contradictions and inconsistencies in their testimony. They also argue that while Sanders and another witness testified that the defendant was in the crowd, leading it, and West testified that the voice crying out “Turn the damned negro loose” was that of a white man, all these witnesses are negroes, and, on this account, had conspired to implicate the defendant in order to protect the negroes, who are also indicted for the murder of Archard.
The witnesses, Berry, Davis and Johnson, were accomplices in the commission of the crime, and the defendant could not be convicted thereof upon the uncorroborated testimony of these witnesses. But there were other witnesses, Grant, Sanders, Sam Kelley and Rosa Thomas, who testified to facts and circumstances which • showed that defendant led the crowd or mob, and was present at the time Archard was shot, and these witnesses were not accomplices in the perpetration of this crime.
All these witnesses appeared before the jury and gave their testimony. It was peculiarly the province of the jury to pass upon the credibility of these witnesses and the weight which they should give to their testimony. The evidence which they gave was not only of a substantial nature fastening upon the defendant the guilt of this crime, but, if they were credible witnesses, the proof of his guilt was direct and positive: It has been repeatedly held by this court that the jury are the sole judges of the • credibility of the witnesses and the weight tó be given to their testimony; and if there is any substantial evidence adduced at the trial which sustains the findings of the jury as to questions of fact, its verdict will not be disturbed by this court upon appeal. This rule has been followed so uniformly that, even if there were no'other facts or circumstances in the case pointing to the defendant’s guilt, we would not feel justified in saying that the verdict returned was not sustained by sufficient evidence. Hubbard v. State,
Without further detailing the testimony and the inferences reasonably deducible therefrom by the jury, we are of the opinion that there was substantial evidence adduced upon the trial of this case sufficient to sustain the verdict which was returned. It follows that the verdict can not be set aside upon the ground that there was not sufficient evidence to sustain it.
2. It is earnestly contended by counsel for the defendant that the court erred in admitting the statement, made by the deceased, Archard, that the defendant was in the crowd that shot him, upon the ground that it was not a dying declaration. It is urged this statement was not a dying declaration because (1) it was not made by Archard under a sense of impending death, and (2) because, from the physical facts adduced in evidence, Archard could not have seen or known that defendant was in the crowd, and therefore it was but the expression of his opinion, and not a statement of fact which he made.
Dying declarations are admissible only in cases of homicide where the death of the person killed is the subject of the charge and the circumstances of the death are the subject of such declarations. It is well settled that such declarations must be made, not merely when the declarant is in articulo mortis, but he must be at the same time under the consciousness of impending death and without expectation or hope of recovery. It is not necessary, however, that the declarant should, at the time of making the declarations, state that he makes them under a sense of impending death; if it satisfactorily appears from the evidence in any mode that the declarations were made under that consciousness, then they are admissible. This may be shown directly by the express language of the declarant; it may also be inferred from Ms wounded condition and evident danger, from expressions or statements made to him or in his hearing by physicians or others in attendance, from Ms manner and conduct and other circumstances shown in the case. The principle is thus stated in the case of Dunn v. State,
It is equally well settled that the declarations of the deceased are admissible only as to those things about which he would have been competent to testify if sworn as a witness in the case. They must, therefore, relate to facts only, and not be mere matters of opinion or belief. If, from the physical facts, it necessarily appears that the deceased could not have known or had the knowledge of the matters he declares as facts, then it follows that they are matters merely of belief or opinion and therefore inadmissible. Jones v. State,
In the case at bar it was shown that Archard was shot and mortally wounded about 9 or 10 o’clock at night. He lay for several hours in the road, unable to move, because his lower extremities were paralyzed. He was carried to Dumas, and there taken to a doctor’s office where preparations were made for an operation. According to the testimony of the attending physicians, he was rational and conscious and possessed of his senses of hearing and seeing. Before the operation was performed, he expressed an objection to taking chloroform. In his presence, the physicians made preparations for the operation; they sterilized their instruments, put on their operating aprons and placed him upon an operating table. At that time Mr. Bridwell, a justice of the peace, came into the office, and said that he desired to get a statement from Mr. Archard before the operation was performed. Mr. Archard then turned his head to one of the physicians and said, “How badly am I hurt?” This physician in reply tried to’ make his condition as mild as possible, and thereupon another physician said, “Doc, why don’t you come clean and tell the man he’s going to die?” The first physician then said, “Mr. Archard, you are badly wounded, and your chances for recovery are slim; and if you have a statement you had better make it.” All this was said while Mr. Archard was lying on the operating table and in his hearing. Thereupon, in answer to questions, Archard stated in substance that a mob had attacked him, that he did not know how many were in the mob or who had shot him, but that a white man was in the mob and that the white man was Rhea. Within thirty minutes after making this statement and while still upon the operating table, Mr. Archard died.
In the case of Newberry v. State, supra, the dying declarations of the deceased, Bass, were admitted. In that case the attending physician saw that his wound was mortal, but expressed no opinion to Bass relative to it. Bass did not ask the doctor for bis opinion, and said nothing to show whether or not he had hopes of recovery. A relative leaned over him, and asked him what was the matter, and he said he was shot. The relative then said to others present, “Now, boys, listen to him while he tells how it happened before he dies.” In response to these words, Bass made his statement. This-court held that his statement was admissible as a dying declaration; and in regard thereto said: /‘The law, therefore, admits such declarations when made under a sense of impending death, whether they were so made being a preliminary question of fact for the trial judge. His finding to that effect will not be overturned when there is evidence supporting it. The circumstances in proof here support the finding of the judge on that point, and such finding must stand.” We are of the opinion also that, although the testimony on the part of the State tended to prove that defendant was in the rear of deceased when he shot, the physical facts were not such as to justify the setting aside of a finding that deceased recognized defendant by seeing him as he turned aside from the road or by the sense of hearing when he demanded that he turn Sanders loose. Walker v. State,
< In regard to this dying declaration, the defendant asked the court to instruct the jury in effect that they should take into consideration the fact that when it was made the defendant had no opportunity to cross examine the deceased, and that they should consider and weigh it with caution; that they should consider his opportunity or lack of opportunity, or his means of seeing and knowing the matters to which the declaration relates at the time of receiving the injury and at the time of making the declaration, including his physical and mental condition. He further requested the court to instruct the jury, in substance, that if the declarant had any hope of recovery at the time of making the dying declaration, or if he did not have adequate opportunity for knowing the truth of the statements made, or if the declaration was really an expression of his opinion, then the statement made by the deceased should have no weight as evidence against the defendant.
As an abstract proposition of law, it has been said by commentators on the law of evidence and by courts of high authority that the testimony of dying declarations should be received with caution and weighed with care for the reason that such declarations are made in the absence of defendant and without opportunity to cross examine the declarant, and also because the repetition thereof is made by witnesses who may be liable to mistake by reason pf a lack of clear and exact expression of the deceased or of a misunderstanding as to his meaning. Dying declarations, however, are admitted in evidence as if made under all the solemnity and binding effect of an oath. Like all other testimony introduced at the trial, they should be considered and weighed by the jury with care. Our Constitution provides that the trial court shall not charge the jury as to matters of fact; and this court has repeatedly held that it is erroneous to give instructions that bear upon the weight of the evidence. We do not think it necessary in this case to determine whether or not it would be proper under our Constitution to give to the jury a cautionary instruction relative to the testimony of dying declarations. The refusal to give such an instruction could not be prejudicial when the court has properly instructed the jury as to. their absolute province to pass upon the weight of such testimony and the credibility of the witnesses narrating it. Such an instruction was given in this case. The matters set out in the instructions requested by defendant were the very reasons why the testimony of dying declarations should be considered and weighed with care, and these matters therefore were in themselves cautionary. The matters set out in these requested instructions, the substance of which we have above stated, were, we think, covered in every essential particular by the following instruction which was given by the court to the jury: “10. The admissibility of a dying declaration made by one who has been wounded is a question for the court alone to decide; the weight that should be given to it — its probative force as evidence — is a matter solely within the province of the jury. In this case the court has admitted in evidence the dying declaration of Vital Archard, and you should consider it in connection with all the other evidence in the case. The interest of the deceased, his mental and physical condition at the time, the circumstances under which it was made, his means of knowing the facts stated by him in his declaration, and all the other evidence in the case should be considered by you in determining whether or not the statements so made by him were true.” As was said in the case of Newberry v. State, supra: ‘'‘The instruction asked by defendant that the jury in determining the weight to be given the statements of Bass might take into consideration his mental condition at the time and the fact that defendant had no opportunity to cross examine might well have been given, but the court did tell the jury that it was for them to determine the weight to be given to such statements, and that they could, with other circumstances, consider whether such statements were voluntarily made and whether they covered all the circumstances of the shooting. Taking the whole charge together, we think the case was fairly presented to the jury, and that no prejudice resulted from the refusal to give the instruction asked.”
In the trial of the case, the witness West testified that just before the shooting he heard one of the crowd or mob cry out: “Turn the damned negro loose!” At that time West was about 250 or 300 yards away, and was not able to recognize any member of the crowd or to determine or to say from seeing them whether any of them, was a white man. In describing the tone of the voice he said, “It was a cultured voice; ” that he could distinguish the voice of a plantation negro from that of a cultured white man, and that, in this instance, it was the voice of a white man. We think that this testimony was admissible. The recognition of the voice is a conclusion reached through the sense of hearing, as the recognition of the appearance of a person is a conclusion reached through the sense of sight. It is not a mere matter of opinion. It is admissible as direct and positive evidence, the weight of which is for the jury’s determination. One may by the sense of hearing recognize the voice of a person with which he is familiar, and may likewise recognize and know the difference between the voices of persons of different nationalities, and between that of a white man and a negro. It is a well-recognized rule of evidence that the voice is a competent means of identification. 6 Enc. of Ev. 924; McElroy v. State,
On the trial of the case, the defendant became a witness in his own behalf. Upon his cross examination, he was asked relative to his illicit relations with a negro woman. We do not think that the court committed error in allowing these questions to be propounded to and answered by the defendant. It has been repeatedly held by this court that, when a defendant becomes a witness in his own behalf in a criminal case, he is subject to all the rules applicable to other witnesses, and his testimony may be discredited and impeached like that which is given by any other witness. A defendant in a criminal case testifying in his own behalf may be cross examined as to specific acts of immorality. McCoy v. State,
Similar objections were made to like questions asked of other witnesses for defendant upon their cross examination. For the same reason, we do not think the court committed error in overruling the defendant’s objections thereto.
It is urged that the court erred in permitting the State to prove by the witness.Steve Smith, called by the State in rebuttal, that the deceased, while in the office of the physician at Dumas and just before the operation was performed, and before he was told that he was seriously hurt, stated that Rhea was in the mob that shot him. The defendant had introduced as a witness one Mid Roberson, who testified that he was present at this time, and that the deceased then said, over and over, to everybody who asked him whether Rhea was in the mob, that he did not know and knew nothing about a mob. Thereupon the State introduced the witness Steve Smith. In admitting the testimony of this witness, the court stated that it was admitted only by way of impeachment of the testimony given by the witness Roberson, and not as evidence of a dying declaration made by the deceased. In this ruling we are of the opinion that the court committed no error. While this testimony relative to the statements made by the deceased was not admissible as a dying declaration, yet we are of the opinion that it was admissible to contradict the testimony which had been given by the witness Roberson on behalf of the defendant.
There are other alleged errors pressed on our attention by counsel for defendant which, it is urged, the court made in its rulings on the admissibility and rejection of certain other testimony. We have examined each of these, and we do not consider them of sufficient importance to here set them out or to discuss them in detail. We do not think that any error was committed by the court in any of these rulings which was prejudicial to the rights of the defendant.
The court refused, after the defendant had closed his case, to permit certain witnesses to testify relative to the good character of the defendant. A number of witnesses, probably sixteen, had already testified to his good character, and this desired testimony was simply cumulative. We are of the opinion that the question of permitting these two witnesses to testify at this time in the progress of the trial was within the discretion of the trial judge, and we do not think that this discretion was abused by the ruling which he made.
3. The court gave the following instruction to the jury which, it is urged by counsel for defendant, was erroneous and prejudicial: “15. In regard to the evidence given of the defendant’s character for peace and quietude, this is always admissible in behalf of a defendant accused of crime, and is not to be ignored, but such good character, if proved, is not, of itself and alone, a defense or justification or excuse for committing a crime, but should be considered by the jury along with the other evidence in the case in determining whether or not the defendant is, in fact, guilty as charged.” It is contended that the instruction is misleading, and disparaged substantive evidence of the defendant’s good character by incorporating therein the statement that such good character, if proved, is not of itself and alone, a defense or justification and excuse for committing a crime. Evidence of a defendant’s good character should be taken into consideration by the jury in connection with the other evidence in the case in passing upon his guilt or innocence. But we think that the plain meaning of the instruction which was given by the court is that if, upon the whole evidence, that of good character among the rest, the jury believed that the guilt of the defendant is proved beyond a reasonable doubt, then the defendant’s good character would not constitute a defense. This is clearly the law, and we do not think that the court erred in giving the above instruction. People v. Sweeney,
It is strongly urged that the court committed a prejudicial error in including the following in its charge to the jury: “7. An accessory is he who stands by, aids, abets or assists, or who, not being present aiding, abetting or assisting, hath advised and encouraged the perpetration of the crime.” The defendant could only be convicted under the indictment in this case by reason of the fact that he was actually present at the time the crime was committed and participated therein, or, being present, did aid and abet, or was ready and consenting to aid and abet, in the perpetration of the crime. If he was actually absent at the time the crime was committed, he could not be convicted under. this indictment, although he did advise and encourage its perpetration. It would, therefore, be error prejudicial to the rights of the defendant if the court instructed the jury that the defendant could be convicted of the crime charged against him if, not being present, he did advise and encourage the killing of Archard. Smith v. State,
There are other rulings made by the court upon instructions given and refused to which objection is made. We have examined each of these carefully in the light of the testimony adduced upon the trial of this case, and we are of the opinion that the court committed no error in any of these rulings which was prejudicial to the substantial rights of the defendant. The jury were, by the charge which was given, taken as a whole, fully and correctly instructed on every ingredient essential to constitute the crime charged against the defendant and upon every phase of the evidence introduced and of the case presented. We believe that every right to which the defendant was entitled was carefully guarded, and that by no instruction given or refused was he deprived of a fair and impartial trial.
It is finally urged that the defendant was prejudiced by the misconduct of the jury and by alleged improper remarks of the State’s attorney made in his closing argument to the jury followed by improper conduct of people in the audience applauding such remarks. The alleged misconduct of the jury which is pressed upon our attention in the brief of counselfor the defendant consisted in this: It is alleged in the affidavit of a bystander that during the' progress of the trial a member of the jury, in going to the toilet, paused at the door thereof and made some signal to two of the attorneys representing the prosecution, to which they made an answering signal. These two attorneys made affidavits denying in emphatic terms that they had any communication with any member of the jury, by signal or otherwise. We think that the testimony thus adduced before the trial judge was sufficient to warrant his finding that no communication was made by any juror with any of the attorneys for the State, by signal or otherwise. By this testimony, we are of the opinion that the State showed that no prejudicial influence was exerted over the jury in any manner, and that the integrity of the verdict is fully established. Hydrick v. State,
In his closing argument to the jury, the State’s attorney made an appeal for the enforcement of the law, and called upon them to return a verdict of guilty, stating that he believed they would do so within thirty minutes, and return to their families, from whom they had been so long separated during" the extended progress of the trial. At the conclusion of his speech urging the enforcement of the law, some of the people in the audience made applause. This was at once stopped by the court, the audience was severely reprimanded, and at the same time the court admonished the jury to pay no attention to the applause, and stated to them that the people in the audience had not heard the evidence and knew nothing of the merits of the case, and that the jury should give no significance to such action, and further instructed them that they should render a verdict solely according to the law given to them and the testimony which had been adduced before them. The record shows that the argument of the State’s attorney was made in response to the argument of counsel for defendant, and we do not think it was erroneous or prejudicial. We are of the opinion that any possible prejudice that could have arisen from the ill-advised applause of some persons in the audience was entirely dissipated and removed by the prompt reprimand given by the court and its admonition given to the jury. The defendant has been represented in the lower court and in this court by eminent and able counsel, his rights have been by them closely and carefully guarded. We have given to the record a searching examination, and we are unable to find in the trial any error which calls for a reversal of this case.
The judgment must therefore be affirmed.