Bond v. State

• Decision Date: 27 February 1897
• Citation: 39 S.W. 554
• Parties: BOND v. STATE.
• Court: Arkansas Supreme Court

39 S.W. 554

BOND v. STATE.

Supreme Court of Arkansas.

February 27, 1897.

Appeal from circuit court, Clay county; Felix G. Taylor, Judge.

Tom Bond was convicted of a felony, and appeals. Affirmed.

The appellant was convicted of carnally abusing a female under the age of 16 years, and appealed to this court. The injured girl was introduced as a witness, and testified against the defendant, who asked the court to instruct the jury that she was an accomplice, and that he could not be convicted upon her testimony alone, unless the same was corroborated. This the court refused to do, to which refusal the appellant excepted. There was a change of venue in the case, and the record fails to show that the appellant was present when the order for the change was made. The record does not show affirmatively that the defendant was present when the verdict was returned into court by the jury. These are all the grounds in the motion for new trial. It does not appear from the record whether the defendant was on bail when the trial was had, or whether he was in jail; whether his absence when the verdict was returned was voluntary or enforced.

N. F. Lamb, for appellant. E. B. Kinsworthy, Atty. Gen., for the State.

HUGHES, J. (after stating the facts).

Section 1865 of Sandels & Hill's Digest provides that "every person convicted of carnally knowing or abusing any female person, under the age of sixteen years, shall be imprisoned in the penitentiary for a period not less than five nor more than twenty one years." A girl under 16 years is not an accomplice, within the meaning of the law, in case of carnal abuse of herself. She is incapable of consenting. Obtaining carnal knowledge of a girl under 16 years of age with or without her consent is punishable under this statute. While it has been held that, in cases of seduction, bastardy, adultery, and abortion, the defendant cannot be convicted upon the uncorroborated testimony alone of the injured party, because she is an accomplice, these authorities will not apply in a case of carnal abuse of a female under 16 years of age, because she cannot be an accomplice, but is a victim. Whitaker v. Com. (Ky.) 27 S. W. 83.

The defendant having asked for the change of venue, it was not reversible error to make the order for the change in his absence. Polk v. State, 45 Ark. 165.

Is the fact that the record does not affirmatively show that the defendant was present when the verdict was returned into court by the jury ground for reversal in this case? Section 2185, Sand. & H. Dig., provides: "If the indictment be for a felony, the defendant must be present during the trial. If he escapes from custody after the trial has commenced, or, if on bail, shall absent himself during the trial, the trial may either be stopped, or progress to a verdict at the discretion of the prosecuting attorney, but judgment shall not be rendered till the presence of the defendant is obtained." Before the passage of this statute, it was held in Brown v. State, 24 Ark. 620, "that in prosecutions for felony the defendant must be personally present at each and every trial when any step is taken by the court in his cause, and that the record must affirmatively show the fact," — citing Sweeden v. State, 19 Ark. 209; Sneed v. State, 5 Ark. 431; Cole v. State, 5 Eng. (Ark.) 318. In Bearden v. State, 44 Ark. 331, this ruling is approved, and it is said the defendant is not called upon to show prejudice, but that it is sufficient if it appears he might have lost an advantage or been prejudiced by the proceedings. But in the Bearden Case it affirmatively appears that the defendant was absent when the proceedings complained of were had. The old rule that, in a felony case, the judgment will be reversed unless the record affirmatively shows that the defendant was present when every substantive step was taken in his case, is still adhered to in many states; and this is the common-law rule. See Clark, Cr. Proc. p. 424, § 148, and cases there cited. But we see from the above section (2185, Sand. & H. Dig.) that, while it is the right of the defendant on trial for a felony to be present when any substantive step is taken by the court in his case, yet that if he abscond after the trial commences, or, if on bail, he absent himself during the trial, the trial may progress to a verdict in his...