Ragsdale v. State

• Decision Date: 21 January 1918
• Docket Number: 103
• Citation: 200 S.W. 802,132 Ark. 210
• Parties: RAGSDALE v. STATE
• Court: Arkansas Supreme Court

200 S.W. 802

132 Ark. 210

RAGSDALE v. STATE

No. 103

Supreme Court of Arkansas

January 21, 1918

Appeal from Conway Circuit Court; A. B. Priddy, Judge; affirmed.

Judgment affirmed.

J. T Bullock, J. J. Montgomery and Hays & Ward, for appellant.

1. There was no transcript filed in the circuit court of Conway County and it had no jurisdiction. The transcript was imperfect and there were file marks showing it was filed. Kirby's Digest, §§ 2326-7-8; 38 Ark. 221; 36 Id. 237; 48 Id. 94; 72 Id. 145; Ib. 613; 102 Id. 653. There is no such court as the Morrilton Circuit Court.

2. Appellant should have been acquitted on the testimony. The State relied on the testimony of the prosecutrix alone, and she was contradicted in many ways. Her testimony was not corroborated.

3. The remarks of the prosecuting attorney were highly improper and prejudicial and the jury were not properly admonished. 58 Ark. 473; 12 Cyc. 571 and notes; 73 Ark. 453; 58 Id 353; 65 Id. 619; 70 Id. 305.

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

1. The testimony is sufficient. Kirby's Digest, § 2008; 65 Ark. 508. No corroboration of the prosecutrix was necessary. 63 Ark. 504. The jury were the judges of the weight of the evidence. 104 Ark. 162; 101 Id. 51.

2. The remarks of counsel were not improper nor prejudicial, but if so, the court corrected the error, if any, by its vigorous action. 84 Ark. 16; 81 Id. 25; 80 Id. 495; 65 Id. 475; 75 Id. 246; 67 Id. 365; 82 Id. 64; 88 Id. 602; 105 Id. 608.

3. A proper transcript was filed here before trial. 35 Ark. 118; 15 Id. 395; 19 Id. 178; 73 Id. 148; 16 S.W. 816. The "Morrilton Circuit Court" was a mere clerical error, not prejudicial and immaterial. 188 Ill. 545; 81 Mich. 240; 64 Cal. 369.

4. The motion in arrest was properly overruled. Kirby's Digest, § 2427.

OPINION

HUMPHREYS, J.

On the 2nd day of October, 1917, appellant was tried and convicted in the Conway Circuit Court, on change of venue from Johnson Circuit Court, of carnally knowing Viola Dunn, a female person under the age of sixteen years, and sentenced to imprisonment for one year. Motions in arrest of judgment and for new trial were filed and overruled, and from the judgment of conviction an appeal has been prosecuted to this court.

It is insisted that the Conway Circuit Court acquired no jurisdiction of the case because an imperfect transcript was lodged in the Conway Circuit Court. Appellant went to trial without suggesting that the transcript was incomplete until the verdict was returned and a motion in arrest of judgment had been filed. Thereupon the sentence was suspended and no other steps were taken until the transcript was perfected and filed. This proceeding was in keeping with the rule of practice laid down in Bixby v. State, 15 Ark. 395; Green v. State, 19 Ark. 178; Binns v. State, 35 Ark. 118, and Lee v. State, 73 Ark. 148, 83 S.W. 916. But it is said there is no file mark on the transcript and that this case is ruled by Burris v. State, 38 Ark. 221, and Ball v. State, 48 Ark. 94, 2 S.W. 462. In these cases there was nothing to show that the transcript had become a part of the record in the court to which the causes were transferred. In the instant case the record shows that a transcript was filed in the Conway Circuit Court. After the court had read the indictment, an objection was interposed to the reading thereof, for the reason that the same was not a certified copy of the original indictment. It would be far-fetched to treat this as an objection to the jurisdiction of the court over the case. No prejudice resulted to appellant on account of reading the indictment as it was an exact copy of the one contained in the amended transcript. In the case of Lee v. State, 73 Ark. 148, 83 S.W. 916, Mr. Chief Justice Cockrill, in referring to the statute providing that a judgment of conviction should be reversed for prejudicial errors only, said: "The purpose of the statute was to obviate the necessity of reversing judgments of conviction on account of mere errors of form which do not affect the substantial rights of the defendant." The instant case was transferred from Johnson Circuit Court to Morrilton, Arkansas, and set for Tuesday of the first week of the next term of the Morrilton Circuit Court. Appellant contends that there is no such court known to the laws of Arkansas. This court knows judicially that Morrilton is the county seat of Conway County and that the Conway Circuit Court is held at Morrilton, the county seat. Knowing that much judicially, the conclusion is irresistible that the transfer of a criminal case from Johnson Circuit Court to Morrilton for trial in the Morrilton Circuit Court is a transfer of the case to the Conway Circuit Court. It would be extremely technical to hold otherwise. The transfer of the cause to Morrilton, Ark., for trial in the Morrilton Circuit Court was a clerical error which resulted in no prejudice to the substantial rights of appellant.

It is contended by appellant that the evidence is insufficient to support the verdict. The gist of the argument of learned counsel for appellant in support of this contention is, that the State relied upon the evidence of the prosecutrix alone for conviction, which was contradicted in many ways. It was within the province of the jury to pass upon the credibility of the witness, and the weight to be attached to her evidence. She was not an accomplice in the crime and the law does not require her testimony to be corroborated. There can be no question that she gave substantial testimony. She testified that appellant had sexual intercourse with her on two occasions in Johnson County, in the year 1916, when she was 14 years of age. On appeal this court will not disturb a verdict supported by substantial legal evidence. Coats v. State, 101 Ark. 51, 141 S.W. 197; Rhea v. State, 104 Ark. 162, 147 S.W. 463.

The prosecuting attorney was permitted to say in his opening statement that, "The defendant, John Ragsdale, began to abuse the little girl as far back as it is possible for a human being to do such a thing, and he continued to have intercourse with her from that time in Pope County, up until the year 1916, when they moved from that county to Johnson County, where he had the intercourse with which he stands charged in this indictment."

In passing upon the latitude allowed counsel in an opening statement, this court has said: "The object of the opening statement is to give the jury an outline of the evidence to be introduced and the nature of the...