State v. Criswell

Evans, J. The crime charged against the defendant was alleged to have been committed about May 20, 1907. The indictment was returned on April 16, 1908. The prosecutrix is one Sarah Norris, who claims that at the time of the alleged offense she and the defendant were engaged to be married. A child was bom to her in February, 1908. 1. Criminal law: reception of verdict: absence of counsel. I. The jury reported an agreement and returned into court shortly after the opening of the afternoon session of October 8, 1908. The defendant was immediately notified to appear, and he did appear and was present . i ,i ■». , • i in person •when the verdict was received and _ . read. FLis counsel, however, were not present. After the verdict was read in the hearing of the jury, the trial judge put to them the fallowing question: “Gentlemen, so say you all ?” To which all the jurors responded affirmatively. The jury was thereupon discharged. Within a few minutes thereafter, attorneys for defendant appeared in the courtroom and expressed a desire for a poll' of the jury. This could not be had because of the discharge. The defendant complains because of the action of the trial court in failing to notify [256] defendant’s attorneys and in failing to' have them present ■at the time of the receiving of the verdict. The principal •argument of appellant is directed to this question. The argument purports to be based very largely upon the provisions of section 5313 of the Code, which provides that “if the defendant appears for arraignment without counsel, he must, before proceeding therewith, be informed by the court of his right thereto and be asked if he desires counsel, and if he does and is unable to employ any, the court must allow him to select or assign his counsel.” The section referred to appears to have no reference whatever to the case under consideration. So far as this record discloses, the defendant had the assistance of four or five attorneys, and had such assistance from the beginning of the prosecution until the end. Having such counsel, no further duty devolved upon the court to instruct him as to his right to counsel. The complaint of the argument is that one of defendant’s attorneys was at his office near at hand, and that the other wa<s in the auditor’s office in the courthouse, and that the court should have found them and notified them of 'the return of the verdict before receiving the same. The .argument in this respect is without merit. The court was under no duty to ascertain the whereabouts of counsel nor to see that they were at their client’s side. As a matter of usual practice, trial judges are considerate and painstaking in the matter of calling counsel under sueh circumstances. We have no doubt the trial judge would have observed sueh practice in this case if any request had been made to that effect. If the attorneys did expect anything of that kind, 'the most ordinary consideration on their own part would have required them to make such request, and to give information to the court as to where they might be found. Indeed, such request and information could have been readily left with the sheriff or with the bailiff. But no request was made of [257] nor information given to the court or any of its officers. The defendant bimself was not in custody but was under bail. He made no effort himself to obtain tbe presence of bis counsel nor did be make any request, or suggestion that they be sent for. No legal right of tbe defendant ,was invaded by tbe receiving of tbe verdict in the absence of counsel. If tbe failure to call them bad been a discourtesy, it could not furnish a ground of reversal here, but this record does not disclose even a discourtesy, and we think tbe argument is without merit on this ground. 2. Same: argument of councel II. One Mrs. Hammey was a witness on behalf of tbe defendant. She testified that she bad been tbe wife of, three successive husbands, one of whom she married twice and was twice divorced from him, and another of whom she married while she was still tbe lawful wife of a previous bus-band. Tbe county attorney commented upon her marital connections and upon her character. Tbe abstracts are in dispute as to just wh'at be said. Whatever ft was, it was very indefinite as presented in this record, nor can we say that tbe attorney exceeded tbe proper limits of argument under tbe testimony. Tbe only objection made to the statement at tbe time was a contradiction thereof by defendant’s counsel. No request with reference thereto was made to tbe court, nor was tbe subject referred to in any manner later. We are satisfied that tbe incident furnished no fair ground of complaint. 3. Impeaching evidence III. One Dunn was called as a witness for tbe defendant, who gave testimony tending .to show previous unchaste character on tbe part of tbe prosecuting witness and her mother. It appeared from tbe testimony of this witness that be lived as a near neighbor of tbe prosecutrix and her mother, and that be bad observed strange men frequenting tbe home of tbe prosecutrix for some years prior to tbe alleged [258] seduction. Upon cross-examination i't 'appeared that the witness had, about a month previous to the time of the trial, signed a paper which was a somewhat fulsome certificate of character of the prosecutrix and her mother. He certified therein that he knew nothing morally bad of either of them, and that they were of good moral character and had always conducted themselves “properly as ladies,” etc. The witness was confronted with this paper and he admitted that he signed it and it was put in evidence as a part of his cross-examination. It is argued here that this paper did not tend to impeach the testimony of the witness and that it was therefore inadmissible. It is also-said that the paper contained other signatures than that of the witness. We think the written statement was wholly inconsistent with the testimony of the witness. He offered no explanation of the inconsistency, and the state was entitled to the evidence for what it was worth. If there were other signatures, such fact does not appear from the instrument as it is incorporated in defendant’s abstract. 4. instructions. evidence. IV. Complaint is made of the instructions of the court because they permitted the jury to find that the alleged seduction was accomplished not only by false promise of marriage, but by “other false and insinuating artifices and deception.” Counsel have not taken the pains to point out to us the particular instruction in which the language complained of occurs. We are unable to find this particular language in any instruction. It is argued however, that plaintiff testified that the sole cause of her yielding was the false promise of marriage, and that the consideration of the jury should, have been confined to that alone. The instructions of the court did permit the jury to consider other arts than a false promise of marriage in determining the guilt of the defendant. The instructions in this respect were clearly justified by the evidence. The fact that the [259] prosecutrix testified on cross-examination that the promise of marriage was the sole cause of her fall would not preclude the jury from giving consideration to her testimony as a whole, which discloses protests of love and other acts not inconsistent with a marriage engagement. No other alleged errors are assigned. We find no ground for reversal. The judgment of the trial court must therefore be affirmed.