Hamer v. State

Kirby, J., (after stating the facts). It is insisted, first, that the court erred in permitting the prosecuting witness to state that she made complaint of the crime that night to Mrs. Will Beard, her brother’s wife, upon reaching his house, saying: “Yes,sir, I told her that Vol Hamer had just ruined me; that was all I could tell her.” The court refused to exclude this answer from the jury. It had before, when the question was asked witness what she did upon going to her brother’s house, told her not to go into details. The fact that she made complaint of the crime was admissible under the circumstances of the case; and she was admonished by the court not to go into details and did not do so. The details of the complaint are not admissible, except in corroboration of the testimony of the prosecuting witness when it is attacked,- unless it constitutes part of the res gestae. Williams v. State, 66 Ark. 264; Skaggs v. State, 88 Ark. 74. We do not think the statements of the prosecuting attorney, objected to, transcended the bounds of legitimate argument in the presentation of the case to the jury, nor that the court abused its discretion in permitting him to take two minutes more in his concluding argument than the time allotted each side for argument of the case when it was begun. This was a matter within the discretion of the court; and, unless an abuse of that discretion is shown or some prejudice resulting to the defendant on account of it, the verdict will not be disturbed on appeal. It was also alleged as one of the grounds for a new trial that one of the jurors, Felix Carnes, had formed and expressed an opinion of defendant’s guilt before he was selected as a juror, of which fact defendant was not advised until after the rendition of the verdict. In support thereof affidavits were filed, in one of which the affiant stated that he had talked with the juror about the case some time before the trial, and that he, Carnes, said, he would like to be on the jury, and if he was he would break defendant’s neck. The court examined the parties who made the affidavits, as well as the juror complained of and others relative to the matter. One of appellant’s attorneys testified that the juror, Felix Carnes, was not a member of the regular panel, and that he knew nothing of him being summoned as a juror until he was called; that Carnes was examined, and on his voir dire stated that he did not know Vol Hamer, the defendant, was not acquainted with him, and knew nothing about the facts in the ease, and that he had no other information of the juror, Carnes, until after the trial was over. And answered further, as follows: “Court: Q. The defendant, Hamer, was sitting by your side when the juror was selected, wasn’t he A. Yes? sir, he was sitting by me when the juror was called, and advised me that Carnes knew him. Q. Notwithstanding Carnes’ statement that he did not know Hamer, you took him? A. Yes, sir, because we would have been glad to have had all the jurors acquainted with him. He said nothing of knowing anything about an opinion that Carnes had expressed about the case.” Robinson testified that Carnes made the remark at his blacksmith shop, as set out in the affidavit, some time before the trial. The juror, Felix Carnes, denied having made the statement, said he did not know Vol Hamer was accused of any crime until he came to court. Had never seen him but once before the trial, and did not remember that until Hamer called his attention to it after the trial. He recited part of this conversation as follows: “He says: T thought I had talked with you once about it. I thought you knew it.’ I says: ‘You are mistaken.’ And he turned around and says: ‘No, I am mistaken, it wasn’t you. It was some other fellow at Mr. Robinson’s blacksmith shop. It wasn’t you.’ After that he says to me: ‘Well, I thought you had heard all about it,’ for, he says to me, ‘When I saw you come on the witness stand — jury stand, you might call it,’ he says: T told my attorney not to object to you for you was all right, I thought sure you would hang that jury or turn me loose.’ I said, T would have been glad to have done it in case you had furnished the right evidence, but in case you didn’t I had to go according to the law and the evidence.’ And at that time Mr. Will Tennyson come up, and he says: ‘How could you see anything else to do, but to hang this man or turn him loose — how could you see any place to find a penitentiary offense?’ I says: T don’t know. It looked to me like it was too light evidence to hang him on.’ “This conversation took place at Newport after the trial. I did not remember that I had ever seen Hamer when I was examined as a juror, nor until after he called my attention to it after the trial; did not know him.personally, and never had any conversation concerning Hamer at all.” Appellant made a statement, and did not deny any part of the conversation as, recited by Carnes that occurred between them after the trial. He knew the juror when he was called and sworn upon his voir dire, told his attorney the juror knew him, after Carnes had stated that he did not, and accepted him without further questioning as to his impartiality or incompetency by reason of prejudice; and, having failed to avail himself of the means afforded by lav/ for ascertaining whether Carnes was an impartial juror or not before accepting him, he will not be heard to complain after verdict that the juror was incompetent because of prejudice, and entitled to a new trial on that ground. Myer v. State, 19 Ark. 165; Collier v. State, 20 Ark. 50; Casat v. State, 40 Ark. 514; Smith v. State, 59 Ark. 136. Moreover, the trial court examined into the matter fully, and ascertained the facts relating thereto, and decided, as it had the right to do, in the exercise of a sound legal discretion, that the juror had not made the statements attributed to him before the trial, and that no prejudice had resulted to appellant by reason of said juror’s service, and denied the motion for new trial, and committed no error in doing so. It is next complained that the court erred in permitting the verdict to be amended. But it is no longer questioned that the jury may amend its verdict to conform to the finding, and put it in proper form, any time before they have separated and same has been entered of record and the jury discharged. 13 Cyc. 1892; Levells v. State, 32 Ark. 585; Gilchrist v. State, 100 Ark. 330. The evidence unquestionably shows the rape of Charlie Holder by some one, and that she could not possibly have been mistaken in the identity of her assailant if her story is true, neither does it disclose any possible motive for laying the crime at the door of appellant, if he did not commit it, and he can not complain because he was only convicted of an assault with intent to commit rape, when the evidence warranted a conviction for the crime of rape. Skaggs v. State, 88 Ark. 72; Pratt v. State, 51 Ark. 167. Neither was error committed in the court’s refusal to grant a continuance. No showing was made of proper diligence exercised to secure the attendance of the absent witnesses, and their testimony was only cumulative of the other testimony relating to the reputation of the prosecuting witness. Morris v. State, 103 Ark. 352, Finding no prejudicial error in the record, the judgment is affirmed.