Burnett v. State

• Decision Date: 08 July 1905
• Citation: 88 S.W. 956,76 Ark. 295
• Parties: BURNETT v. STATE
• Court: Arkansas Supreme Court

88 S.W. 956

76 Ark. 295

BURNETT v. STATE

Supreme Court of Arkansas

July 8, 1905

Appeal from Pope Circuit Court DANIEL B. GRANGER, Special Judge.

Affirmed.

STATEMENT BY THE COURT.

Appellant was indicted, tried and convicted of the crime of seduction alleged to have been committed by obtaining carnal knowledge of Fannie Bruton, an unmarried woman, by virtue of a false promise of marriage.

The case was here on a former appeal (72 Ark. 398), and after it was reversed and remanded he was again tried and convicted and again appeals to this court.

Judgment affirmed.

C. C Reid and Sellers & Sellers, for appellant.

Section 2044 of Kirby's Digest is unconstitutional. 24 Ark. 91; 46 Ark. 110; 76 Ala. 482; 4 Am. & Enc. Pl. & Pr. 825; Cooley, Const. Lim. 95; 5 Pick. 70; 16 Mass. 326; 7 Mass. 389; 1 Ark. 121; 2 Vt. 175; 3 Vt. 361; 5 Scam. 465; 3 Scam. 465; 10 Yerger, 59; 13 Ark. 729; 26 Am. St. 470. The section is also unconstitutional, because its effect is to pet one in jeopardy twice for the same offense. Const. Ark. art. 11, § 8; 54 Am. Rep. 511; 56 Am. Rep. 235; 26 Ark. 269; 42 Ark. 38; 48 Ark. 36; 35 L. R. A. 238; 83 S.W. 929. A continuance should have been granted on account of absent witnesses. Const. Ark. art. 11, § 10; 50 Ark. 161. Testimony as to defendant's consent to the suspension of the first trial should not have been admitted. 32 Ark. 117; 60 Ark. 141; 1 Green. Ev. § 563b. Instruction No. 1 was unintelligible, and did not state the law. 40 Ark. 485; 83 S.W. 911. It was error to refuse instruction No. 5, requested by the defendant, as to the testimony of an accomplice. Kirby's Dig. § 2384. It was error to refuse instruction No. 8, requested by appellant on the ground of abandonment. 81 S.W. 382. The closing remarks of the prosecuting attorney were improper. 70 Ark. 305.

Robert L. Rogers, Attorney General, for appellee.

There can be no jeopardy in a bad indictment. 33 Ark. 129; 42 Ark. 35; 48 Ark. 36; 59 Ark. 113. Nor when the defendant consents to a suspension of the proceedings. 11 Am. & Eng. Enc. Law, 950-952. The instruction upon the testimony of an accomplice was correct. 1 Whar. Cr. Law, § 593.

MCCULLOCH, J. HILL, C. J., absent and not participating.

OPINION

MCCULLOCH, J., (after stating the facts.)

1. During a former trial of appellant for the offense, and after the jury had been impaneled and sworn and the testimony introduced, appellant and the prosecuting witness, Fannie Bruton, procured a license, and were duly married in open court, and the court thereupon suspended the trial, discharged the jury, and continued the case. In the last trial, in which the judgment of conviction was rendered from which he now appeals, he interposed a plea of former acquittal, and introduced in support of the plea the record of the former suspended trial.

Section 2044, Kirby's Digest, is as follows: "If any man against whom a prosecution has begun, either before a justice of the peace or by indictment by a grand jury, for the crime of seduction, shall marry the female alleged to have been seduced, such prosecution shall not then be terminated, but shall be suspended; provided, that if at any time thereafter the accused shall willfully, and without such cause as now constitutes a legal cause for divorce, desert and abandon such female, then at such time such prosecution shall be continued and proceed as though no marriage had taken place between such female and the accused."

Learned counsel for appellant contend that the above-quoted statute is unconstitutional, in that the suspension provided for serves to deprive the defendant under indictment of a speedy trial; and that, even if the statute is held to be valid, so as to suspend a prosecution at all, it does not apply after jeopardy has attached. They say that to apply it after jeopardy has attached would be to put the defendant in jeopardy twice for the same offense, which is forbidden by the Constitution. It is argued that if the statute is valid, the marriage of the defendant and the female alleged to have been seduced would ipso facto deprive the court of jurisdiction to proceed further, even though the marriage was without reference to the prosecution, and the defendant was demanding a speedy trial, notwithstanding the marriage. We are not confronted with such a state of facts here. The statute can be held to be void in so far as it denies an accused person a speedy trial where he demands it, notwithstanding the marriage, and yet be held valid and enforceable in a case where no demand for trial is made.

In Stewart v. State, 13 Ark. 720, this court quoted, with approval, the following language of the Supreme Court of Mississippi in the case of Nixon v. State, 10 Miss. 497, 2 S. & M. 497: "By a speedy trial is there intended a trial conducted according to fixed rules, regulations and proceedings of law, free from vexatious, capricious and oppressive delays manufactured by the ministers of justice." And this court in the same case said: "We think the spirit of the law is that, for a prisoner to be entitled to his discharge for want of prosecution, he must have placed himself on record in the attitude of demanding a trial, or at least of resisting postponements." The statute in question, providing for a suspension of the prosecution upon the intermarriage of the parties, was designed for the benefit of the person accused of the offense and of society; and, as a protection to society against an insincere show of repentance on the part of the accused, it further provides that if he shall thereafter willfully desert the female whom he has, by the marriage, rescued from the disgrace brought upon her by his criminal act, the prosecution may be renewed. He is not bound to marry the female, nor to invoke the benefit of the statute, if he does so before the termination of the prosecution; but if he does so, he cannot thereafter complain because of a suspension of the prosecution on that account when he has never demanded a speedier conclusion of it.

Nor can it be said that the suspension of the trial before verdict on account of the marriage and subsequent trial anew after the desertion is putting the accused twice in jeopardy of his liberty. If the trial be suspended by the act of the accused himself, or for his benefit, or at his own request, no jeopardy has attached by reason of that trial. Mr. Bishop, in speaking of this constitutional guaranty, says: "This guaranty of immunity from a second prosecution is, in its nature, a restraint on the courts, not on the party. It would be absurd to promise a man protection from his own act, but reasonable to make the like promise as to the act of another." 1 Bishop, Crim. Law. § 1043.

In Atkins v. State, 16 Ark. 568, Chief Justice English, speaking for the court, said: "Lord Coke seems to have been of the opinion that a jury charged in a capital case could not be discharged without giving a verdict, even though with the consent of the prisoner and Attorney General. 1 Inst. 227b; 3 Inst. 110. But the doctrine was fully discussed in the case of the Kinlochs, Foster, 16, and the law settled to be that where the jury is discharged by the consent and for the benefit...