Lee v. State

• Decision Date: 03 December 1904
• Citation: 83 S.W. 916
• Parties: LEE v. STATE.
• Court: Arkansas Supreme Court

83 S.W. 916

LEE v. STATE.

Supreme Court of Arkansas.

December 3, 1904.

Appeal from Circuit Court, Polk County; Jas. S. Steele, Judge.

J. S. Lee was convicted of larceny, and appeals. Reversed.

The defendant, J. S. Lee, was indicted by the grand jury of Little River county for grand larceny; it being alleged that he took, stole, and carried away about nine head of cattle, the property of one Clem Scott. On the application of the defendant the circuit court entered into an order changing the venue to the Polk circuit court. On the trial in that court, and during the argument to the jury, one of the counsel assisting in the prosecution said in his argument to the jury: "If the defendant is not guilty, no one knows it better than he does. Why did he not take the stand and tell you that he did not steal these cattle? He sits there silent as the grave, and asks you to turn him loose without opening his mouth as a witness." Appellant interposed an objection to this argument, and the court at once sustained the objection, instructed the jury that such an argument was improper, and that they must disregard it entirely, reprimanded the attorney for making it, and warned him that a repetition of it would subject him to a fine. The jury retired to consider the case, and, being out several hours, returned into court and announced that they stood seven to five, and that there was no prospect of an agreement. Whereupon the court, on motion of the prosecuting attorney, and over the objection of the defendant, repeated to the jury one of the instructions previously given, as follows: "The court instructs the jury that circumstantial evidence is legal and competent evidence, and will warrant a conviction, if the jury are satisfied from the facts and circumstances in evidence, beyond a reasonable doubt, of the defendant's guilt." The jury, soon after this instruction was repeated, returned a verdict of guilty, and assessed the punishment at one year in the penitentiary, and judgment was rendered accordingly. Defendant moved for a new trial on account of improper argument and for other reasons. He also filed a motion in arrest of judgment on the ground that the transcript filed by the clerk of the Little River circuit court in obedience to the order of change of venue, and upon which the defendant was tried, was invalid, because not certified under the seal of that court. The court thereupon sent the transcript back to the clerk of the court from which it came, who thereupon affixed the seal and returned it to the Polk circuit court, which court thereupon overruled both the motion for new trial and the motion in arrest, and the defendant appealed.

Kirby & Carter and J. D. Head, for appellant. Geo. W. Murphy, Atty. Gen., for the State.

RIDDICK, J. (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 River 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.

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; Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8. But in the case of Hayden v. State, 55 Ark. 342, 18 S. W. 239, Chief Justice Cockrill held, in effect, that these cases were in conflict with the statute which provides that a judgment...