Mell v. State

• Court: Supreme Court of Arkansas
• Citation: 202 S.W. 33
• Docket Number: (No. 219.)
• Parties: MELL v. STATE.
• Decision Date: 11 March 1918

Page 33

202 S.W. 33 MELL
v.
STATE. (No. 219.) Supreme Court of Arkansas. March 11, 1918.

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

C. W. Mell was convicted of assault with intent to rape, and he appeals. Reversed and remanded.

John W. Moncrief, of De Witt, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State.

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 courthouse 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 courthouse 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 courthouse and give her testimony there. In several jurisdictions where the question has been raised it has been held, 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 courthouse. Davis v. Commonwealth (Ky.) 121 S. W. 429, and Selleck v. Janesville, 100 Wis. 157, 75 N. W. 975, 41 L. R. A. 563, 69 Am. St. Rep. 906. On the other hand, it has been held to be reversible error to adjourn the trial of a criminal case to the home of a witness against the objection of the defendant. Bishop's New Criminal Procedure (2d Ed.) vol. 2, § 1195; Adams v. State, 19 Tex. App. 1; Carter v. State, 100 Miss. 342, 56 South. 454, Ann. Cas. 1914 A, 369; Funk v. Carroll County, 96 Iowa, 158, 64 N. W. 768. We think the trend of our decisions is towards the latter rule. In Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54, the court said:

"The common law defines a court to be a `place where justice is judicially administered,' and therefore to constitute a...