Moon v. State, (No. 1.)

• Citation: 262 S.W. 658
• Decision Date: 26 May 1924
• Docket Number: (No. 1.)
• Parties: MOON v. STATE.
• Court: Supreme Court of Arkansas

Page 658

262 S.W. 658

MOON v. STATE.

(No. 1.)

Supreme Court of Arkansas.

May 26, 1924.

Rehearing Denied June 23, 1924.

Appeal from Circuit Court, White County; E. D. Robertson, Judge.

Hinton Moon was convicted of seduction, and he appeals. Affirmed.

Brundidge & Neelly, of Searcy, for appellant.

J. S. Utley, Atty. Gen., and John L. Carter, Wm. T. Hammock, Darden Moose, and J. S. Abercrombie, Asst. Attys. Gen., for the State.

McCULLOCH, C. J.

This is an appeal from a judgment of conviction under an indictment against appellant charging the offense of seduction, alleged to have been committed by obtaining carnal knowledge of an unmarried female by a false express promise of marriage. The case has been here twice on appeal. 155 Ark. 601, 245 S. W. 29; 161 Ark. 234, 255 S. W. 871.

The young woman in question testified that appellant promised to marry her, and induced her to have sexual intercourse with him by virtue of a false, express promise of marriage. Her testimony was corroborated by that of several witnesses as to both the promise of marriage and the sexual intercourse between the parties. The evidence was sufficient to sustain the verdict.

The principal point urged here now for reversal of the judgment relates to the ruling of the court in refusing to sustain appellant's motion for postponement of the trial on account of the absence of witnesses. On the day the case was called for trial appellant, through his attorneys, filed a motion to continue the cause until the next term of the court on account of the absence of two witnesses, Mrs. Dewey Wilkerson and Mrs. Jewel Moon. He alleged in the motion that the witnesses had been summoned to attend and that they were residing in the county where the case was pending, but were physically unable to attend court at that term. Certificates of a physician were filed as to the physical condition of the two absent witnesses. It was alleged in the motion that Mrs. Wilkerson would have testified, if pressent, that on a certain occasion she, with other parties, was returning from the village of Mt. Vernon one night about midnight in a truck when the truck broke down on the roadside and that while they were sitting on the truck Clytie Dupriest, the prosecuting witness, and a young man named O'Guinn passed in a buggy; that she heard them hollering before they passed the truck, and that as they passed by in the buggy Clytie Dupriest held up a lap robe over her face to keep those in the truck from recognizing her. It was also alleged that Mrs. Wilkerson would testify that she had seen certain other boys associating with Clytie Dupriest during the year 1920. It was alleged in the motion that Mrs. Jewel Moon would testify, if present, concerning certain statements of Clytie Dupriest in regard to her relations with appellant and her intentions with respect to compelling him to marry her. It appears from the record that these two witnesses had testified at a former trial, and the court overruled the motion for a continuance on the ground that, the witnesses being unable to attend court at that time, the testimony taken at the former trial was available. We are of the opinion that the ruling of the court in refusing to postpone the case cannot be sustained on that ground. The fact that the witnesses were unable to attend court on account of illness would have afforded grounds for admitting in evidence the testimony of the witnesses taken at a former trial (Williams v. State, 156 Ark. 205, 246 S. W. 503), but under the constitutional guaranty that the accused in any criminal prosecution shall have the right "to compulsory process for obtaining witnesses" (article 2 § 10, Declaration of Rights) the privilege of introducing the testimony taken at a former trial is not sufficient if the witnesses reside within the jurisdiction of the court and the personal attendance of the witnesses can be procured at a later date. Graham v. State, 50 Ark. 164, 6 S. W. 721. Under the constitutional guaranty an accused has the right to have the personal attendance of the witness if it can be obtained, and the right to use the testimony of the witness taken at a former trial is only available where the attendance cannot be obtained.

We think,...