Mell v. State, 219

• Court: Supreme Court of Arkansas
• Citation: 202 S.W. 33,133 Ark. 197
• Docket Number: 219
• Parties: MELL v. STATE
• Decision Date: 11 March 1918

202 S.W. 33

133 Ark. 197

MELL v. STATE

No. 219

Supreme Court of Arkansas

March 11, 1918

Appeal from Arkansas Circuit Court; Thos. C. Trimble, Judge reversed.

Judgment reversed and cause remanded.

John W Moncrief, for appellant.

1. The sanity or insanity of the prosecutrix was material to the defense. It was error to refuse to allow defendant to introduce testimony to show the insanity of the mother and sister of the prosecuting witness. The court's remarks were prejudicial. 54 Ark. 489; L. R. A. (N. S.) 1917 E. 857; Ann. Cas. 1917 B. 1054; 62 Ark. 126; 51 Id. 147.

2. It was error to adjourn court to the hotel.

3. The court erred in its instructions to the jury.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. There was no error in refusing to admit evidence as to the insanity of the sister and mother of prosecutrix. 53 Tex.Crim. 202; 23 Ala. 44.

2. It was not error to adjourn court to the hotel. The evidence supports the verdict.

OPINION

HART, J.

C. W. Mell prosecutes this appeal to reverse a judgment of conviction against him for the crime of assault with intent to rape. His punishment was fixed by the jury at a term of three years in the State penitentiary and the evidence adduced for the State was sufficient to warrant the verdict. On the other hand the testimony of the defendant exonerated him from the charge.

The record shows that the prosecuting attorney at the beginning of the trial asked that the court be adjourned to a hotel situated in the town near the court house for the purpose of taking testimony of the prosecuting witness. This request was granted by the court against the objections of the defendant. The court and the jury over the objections of the defendant went to the hotel and took the testimony of the prosecuting witness and then returned to the court house for the purpose of conducting the trial. After the defendant had concluded his testimony, the prosecuting attorney again asked the court to adjourn to the hotel for the purpose of taking the testimony of the prosecuting witness in rebuttal. This was granted against the objection of the defendant. The prosecuting attorney made the request in each instance on the ground that the prosecuting witness was too ill to leave the hotel and come to the court house and give her testimony there. In several jurisdictions where the question has been raised it has been held, that unless prohibited by statute, the trial court may in its discretion adjourn court to the home of a witness to take his testimony where the witness is unable to attend the trial at the court house. Davis v. The Commonwealth (Ky.), 121 S.W. 429, and Selleck v. Janesville, 100 Wis. 157, 69 Am. St. Rep. 906, 41 L.R.A. 563.

On the other hand it has been held to be reversible error to adjourn the trial of a criminal case to the home of the witness against the objection of the defendant. Bishop's New Criminal Procedure, (2d ed.) Vol. 2, Sec. 1195; Adams v. State, 19 Texas Court of Appeals, page 1; Carter v. State, 100 Miss. 342, 56 So. 454, Ann. Cas. 1914-A 369, and Funk v. Carroll County (Iowa), 96 Iowa 158, 64 N.W. 768. We think the trend of our decisions is towards the later rule. In Dunn v. State, 2 Ark. 229, the court said:

"The common law defines a court to be a "place where justice is judicially administered," and therefore to constitute a court there must be a place appointed by law for the administration of justice, and some person authorized by law to administer justice at that place, must be there for that purpose. Then, but not otherwise, there is a court, and the judicial power of the State may be there exercised by the judge or person authorized by law to hold it; and if the law prescribed no time for holding the court, the judge might lawfully hold it when, and as often as he chose. So, likewise, if the place was left to his election, instead of being fixed and prescribed by law, he might lawfully sit in judgment, where he pleased, within the territorial limits prescribed to his jurisdiction, but in this State both the time and place of holding the terms of the circuit court in each county are prescribed by law."

The court has recognized that in cases of emergency, such as the destruction of the court house by fire, the court itself may secure other quarters in the county seat for temporary use in the administration of justice. Hudspeth v State, 55 Ark. 323, 18 S.W. 183; Lee v. State, 56 Ark. 4, 19 S.W. 16. In the case of Williams v. Reutzel, 60 Ark. 155, 29 S.W. 374, it is said that the object of the rule seems to be to obtain certainty and to prevent a failure of justice through the parties concerned or affected not knowing the place of holding court. The manifold mischiefs that might arise from permitting a court to assume a migratory character and travel from place to place in the same locality or even in the same town are manifest. It is...