Aрpellant prosecutes this appeal from a judgment of conviction against him оf carnal abuse upon Ms trial upon an indictment for rape. He urges that the evidenсe is not sufficient to support the verdict; that the court erred in not withdrawing from the jury the testimony of the prosecuting witness for incompetency, she being incompetent to testify; in the giving of instruction No. 9, and in permitting the unwarranted and prejudicial remarks of the proseсuting’ attorney in his closing* argument.
~We do not regard it necessary to set out the testimony at lеngth, hut it will suffice to say that, after a careful consideration of the evidence, we think thе jury was warranted in finding that the defendant had carnal knowledge of the girl, under the age of сonsent, and its verdict will not he disturbed on that ground.
No error was committed in refusing to exclude thе testimony of the prosecuting witness on the ground that she did not know and understand the obligations of an oath. • She was over 14 years of age, and presumed to have common discrеtion and understanding, and, no objection having been made to her examination on the ground of incompetency to testify until after her testimony was all introduced and a rigid cross-examination made, the right to have the testimony excluded was waived, the objection bеing untimely. Flanagin v. State,
Then, too, the question of the witness’ competency was addressed largely to the discretion of the trial judge, and, in the absence of clear abuse оr manifest error, the judicial discretion is not reviewable. Crosby v. State,
Neither can appellant complain of the error in the giving of instruction number 9, relative to the offense of rape, since the jury acquitted him of that crime and convicted him of the lesser оffense of carnal abuse, in which the questions of resistance and outcry of the femаle are not involved, and any error-committed in the giving of said instruction was harmless. James v. Stаte,
The court has concluded, however, that error was committed in permitting the remarks of the prosecuting attorney complained of in the closing argument. The record recites: “This note we were not permitted to introduce in evidence to show you what was in the note, I wish we could have; I believe at the time she went to Little Rock and got thеse witnesses and wrote this note they were laying plans to have Coon Young present and in the car on that night that this heinous crime was committed. Coon Young was not there, I know he wаs not there, you know he was not there. They knew this was ihe evidence that would stick them, and they did not want it before you. They have done everything in their power to prevent justice being done. That is the kind of a mother this is.”
Much of the testimony was directed to proving that Coon Young came to the dance in the car with defendant, the girls and their mother, contradicting the testimony of the prosecuting witness and her little sister, that he did not come to the dance, nor ride in the car with them; notwithstanding the mother of the girls had also testified that he did accоmpany them to the dance and took the two little girls out of the car and into the danсe hall, leaving her and the defendant in the car a few minutes until they could follow.
It was shown that the mother had written a note to the girl which the court would not permit introduced in testimony, and the majority think that the argument and comments of the prosecuting attorney upon the fact, with the statement of his belief that the mother had come to Little Rock and got witnessеs and had written the note or letter making plans to have Coon Young present in the car on the night the crime was committed out there, and his positive statement that, “Coon Young wаs not there, I know he was not there, you know he was not there. They knew this was the evidencе that would stick them, and they did not Avant it before you, ’ ’ — was unwarranted, and necessarily prejudicial. It is true that the court gave an instruction to the jury telling them they should not alloAV any argument оf the counsel to influence them in any Avay, unless it Avas supported by the Mav and testimony, but this instructiоn was given along with the others, the improper argument having been allowed to be made, over the objection of the defendant, and, not •haAdng been withdrawn nor the jury speciаlly admonished not to consider it, the said .instruction could not operate to remove the prejudice against the rights of the defendant in erroneously permitting the prosecuting attornev to make the argument. Hays v. State,
For the error designated the judgment is reversed, and the cause remanded for a new trial.