Carmen v. State

• Decision Date: 27 September 1915
• Docket Number: 136
• Citation: 179 S.W. 183,120 Ark. 172
• Parties: CARMEN v. STATE
• Court: Arkansas Supreme Court

179 S.W. 183

120 Ark. 172

CARMEN v. STATE

No. 136

Supreme Court of Arkansas

September 27, 1915

Appeal from Clay Circuit Court, Eastern District; J. F. Gautney Judge; affirmed.

STATEMENT BY THE COURT.

J. F Carmen was indicted, charged with the crime of incest committed by having carnal knowledge of his niece, Ona Burns the indictment not alleging that he was a married man. A demurrer was interposed to the indictment and overruled, and he was placed upon trial and the jury, having failed to agree, were discharged by the court after they had reported the second time their failure to arrive at a verdict.

On the 8th of May before the cause was again reached for trial the grand jury in session returned another indictment against the defendant, charging him with incest committed with his niece Ona Burns, and also that he was a married man. After its return, the court upon its own motion sustained the demurrer to the first indictment which it had previously overruled.

Upon the case being called for trial the defendant moved for a continuance because of the serious illness of his wife, which was denied. A demurrer to the second indictment was overruled and the defendant interposed a plea of former jeopardy, alleging that he had been put in jeopardy of his liberty for this offense by the former trial. The testimony was introduced on this issue, showing the mistrial on the first indictment and the court directed the verdict for the State upon this plea. The testimony shows that Ona Burns, the niece of the defendant (who "was not bright," as one of the witnesses said) lived at defendant's house with him and his wife, who was in poor health and about seventy years of age. Several witnesses testified to an apparent undue intimacy between the defendant and his niece, Ona Burns, a half-witted girl about twenty-one years of age, and one stated positively that he had seen defendant in the act of having sexual intercourse with said niece in the corn crib at the barn. She was delivered of a child about the usual time after these acts of sexual intercourse were alleged to have occurred; and the county judge, upon a complaint made in a bastardy proceeding, sent for the defendant and told him of the complaint and he said he was not the father of the child but that he was willing to give bond required for its support. The judge informed him that it was necessary for him to admit that he was the father of the child or submit to a trial of that question and he said that it would be all right, that he would make the bond, which he did do and returned and filed it with the judge. He admitted having made the bond, did not deny that the judge explained the circumstances and his rights in the matter fully, as he claimed to have done, but said he only understood that he was giving the bond to support the child in order that his niece and it should not be taken from his house to the poor farm. The bond in regular form was introduced in evidence over defendant's objection and upon the back of it was endorsed the following:

"On this day comes before me J. F. Carmen accused of bastardy, and the charge being stated, he enters a plea of guilty, and offers as sureties on his bond for the maintenance of said child J. W. Wickham and S. H. Smart, and said bond so tendered being conditioned as provided by law, and the said Ona Burns waiving her claim to a judgment against the said J. F. Carmen, said bond is by the court ordered filed and approved, and a judgment thereon entered.

This day of April, 1914.

B. B. Holifield, Judge."

The defendant denied ever having intercourse with the girl, but admitted that he had asked her to have intercourse with him, as two witnesses testified he had told them, but said that he had done so as he told said witnesses only for the purpose of teaching the girl a lesson, and that he had so explained it satisfactorily to his wife upon the girl having told her of his conduct. There was other testimony tending to show that some other persons could have been the father of the child and the girl herself stated definitely that one of them "had had a chance to be." The defendant's prior good reputation was established and there was testimony tending to some extent to discredit the statement of the witness who had seen the parties in the sexual embrace, certain witnesses stating that he could not have seen them leaving the barn where the act was said to have occurred after he had ridden away from the gate to where he said he was at the time they left the barn.

Judgment affirmed.

R. H. Dudley, for appellant.

1. The demurrer should have been sustained. The indictment did not particularly describe the specific act relied upon as constituting the crime of incest. 22 Cyc. 50; 58 Ark. 3; 22 S.W. 840.

2. The plea of former jeopardy should have been sustained. Art. 2, sec. 8, Const.; 3 Bl. Comm. 361; 12 Cyc. 269, 270; 43 Ark. 271; 48 Ark. 36; 26 Ark. 260; Cooley's Const. Lim. 327; 26 Ark. 260; 43 Ark. 271.

3. Because of the serious illness of appellant's wife, her critical condition as shown in evidence and the necessity for appellant's presence with, and attendance upon her, at the time of his trial, the motion for continuance ought to have been granted, and its refusal was an abuse of discretion.

4. The testimony of alleged acts of familiarity occurring more than three years before the finding of the indictment, was not admissible, and the court erred in not excluding it.

5. A judgment in a civil case can not be introduced as evidence in a criminal prosecution. The court therefore erred in admitting in evidence the bond, warrant and judgment of the county court in the bastardy proceeding. Art. 7, sec. 28, Const.; Kirby's Dig., §§ 481, 1375, 6228; 38 Ark. 150; 53 Ark. 476; 45 Ark. 56; 55 Ark. 387; 90 Ark. 514; 101 Ark. 29; 1 Black on Judgments, 2, § 1; 2 Id., § 529; 68 Ark. 180; 1 Greenleaf on Ev., § 537; 3 Jones, Ev., § 589; 77 Ala. 202; 51 Tex. Crim. Rep. 289; 99 Ark. 32; 91 Ark. 555.

It was error to instruct the jury that they might consider the evidence touching bastardy proceedings for any purpose whatever. 39 Ark. 278; 73 Ark. 262.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The indictment is sufficient. It charges that appellant "then and there being an adult married man, then and there unlawfully, wilfully, feloniously and adulterously, did have carnal knowledge," etc. 95 Ark. 233, 235.

2. The plea of former jeopardy was properly overruled. Kirby's Dig., § 2293; 10 Ark. 608, 618; 42 Ark. 35, 39; 48 Ark. 36, 40.

3. It is clear from the evidence that there was no abuse of discretion in overruling the motion for continuance. It was properly overruled.

4. Evidence as to prior acts of intercourse was admissible. 75 P. 166; 22 Cyc. 53, note 93. Even prior acts occurring beyond the period of limitation may be shown, where the jury is instructed that such acts are admitted only for the purpose of throwing light upon the relations existing between the parties at the time alleged in the indictment within the period. 35 S. E. (Ga.) 161, 163; 31 A. 123.

OPINION

KIRBY, J.

The allegations of the indictment under which the defendant was convicted sufficiently alleged the offense and no error was committed in overruling the demurrer thereto. Martin v. State, 58 Ark. 3, 22 S.W....