ARk.] HAYS V. 'STATE.: 1173 :5 :''HA4).1,STE. A ! . • ,4; t ,t-, Opinion , cle , livexecf Deceml?ev,52:1, . . 1. CRIMINAL LAW—IMPROPER ARGUMENT' Or STATi'E. a prosecution for the statutory; criMe ;of carnal, ab,use, the ,argu-Tent of special -counsel for the State, that ,the prosecutrix was • last heard from in . a city ori the D4exipa . n . border, that deiendn, ' had been in illexiCo:, arid that the . ae'suniptiori' that' deterlia.1 • ant had carried her' theie; *á prejidicia1 eiior in view of the •• eourt'S. , refusal • to re 'Primana coun4el 'or to interfere with. his arguMent. ,, ' ,. ; r: . , • •,,!, 2. CRIMINAL LAW-TIMPEAGIIING,IMLL OF ¶EkqEPTIONS. 7 -0p :appeal or court is governed by the bill of exceptions ,signed ;by the . trial , judge, which cannot .be impaired by, affidavits , • '.) ,.•.. 4, t . :.'! .• I.• I: , Appeal , froth Pireuiti,COurt; Ames M. IMc-. C ollion,;f Judge ;, Tevef,sed: .; •r: I • t
1174 HAYS V. STATE. [169 T. N. Wilson, Steve Carrigan and Randolph P. Hamby, for appellant. H.'W. Applegate, Attorney General, and John L. Car-ter, Assistant, for appellee. . HART, J. .Jid Hays prosecutes this. appeal to reverse a judgment against him for the statutory crime of carnal abuse. The first asignment of error is that the evidence is not legally sufficient to support the verdict. No useful purpose could be served by setting out the evidence in the record. We deem it sufficient to say that the evidence for the State, if believed by the jury, warranted it in finding that the defendant had sexual intercourse with a girl under the statutory age. . Hence this assignment of error is.notwell taken. . The next assignment of error relates to the argument of the special counsel for the State in his closing argument to the jury. On this point we copy from the record the following: " This girl, who they called the injured party, is now gone. What do the facts show, gentlemen of the jury? That Jid Hays was down in Mexico, and the last time this girl's sister heard from her she was at El Paso, on the Mexican border. The presumption is" that Jid Hays had her carried there. I believe he had her carried down there, and that she is somewhere down there now. She may have been ;thrown in the Rio Grande River. I believe she is down there, and the presumption is that he had her carried down there." Counsel for the defendant objected to the argument on the ground that there 'was no evidence whatever tending to show that the defendant had the girl carried off, and asked the court to instruct the jury not to consider the argument on this point. The court said : "Gentlemen of the jury, you remember what the evidence in the case is, and you will try the ease according to the evidence of the *itnesses." Counsel for the defendant again objected, and the court oVerruled his objections, and . told the special prosecutor to go ahead. The action df the court amounted to
ARK.] HAYS V. STATE. 1175 an approval of the argument of the Special counsel for the State, and, we think, was prejudicial tO the rights Of the defendant. The defendant was a witness for . himself, and teStified that he left home 'and 'went dowii into Mexico, and stayed there 1S months because public sentiment was against him. He denied that he , knew where the girl With whom he was tharged with having sexual intercourse Was, or that he knew thai she had been away at all. He denied Seeing her while he was in Mexico. The sister of, the girl, with whom the defendant is alleged to have had sexual intercourse lestified that she had a letter from her .about a year ago from El Paso, Texas. Another witness for the State testified that at one time the defendant asked him to send a : money order for $20 to the girl in question to Memphis,. Tienn., and that he did so. This was befere the defendant went to Mexico. • This testimony was admissible as. evidence, which it was the exclusive province . of the jury to weigh, and in connection with all the testimony to determine what degree of , weight and credit should be accorded it. The jury was not required to attach any weight or credit to this testimony merely because it had been admitted by the court ; but it must determine fdr itself its credibility and weight in connection with all the circumstances and other testimony in the case. The . dvidence is not . aided by any presumption of the truth of it. The deduction from the facts in the evidence in the whole caSe was for the jury, and the conrt, by sanctioning the argument of special counsel for the State, in effect instiucted the jury that, under the facts proved, .there was a presuniption that the defendant had carried the girl in question to El Paso. The special counSel 'Stated further that the girl may have been thrown in the Rio Grande, and that he believed that the defendant had carried her down there, and repeated to the jury that the presumption is that he had carried her down there. Froth this the jury might
1176 HANs v. .STATg. [169 infer that ther,e ;was; sufficient ,prpof to. : show that the OPfPW l a nt had cp7ie,ci; the, girl to, Paso,,and that the burden of proOf was Upon him to show that be had not carried , her ,down, there. Now, the burden: of proof was upon the State to sho'w the gUilt ofthe defendant beyond a reasOnable d'oubt, and presumption of imiocence attended him thoughout the tud.1.. The girl'in ,question was not . presentr at the trial,' / and the , reinarks , of :speCial 'cOniiselthat, ' , under the 'Cli .'cimist gnces,Ahe Presimiption as ihat 'he haci• c'arried .; her'raWay-y,ro , necessarily ' pre]-udicial to . the rights a -the' d'eferidant. 'There is Jloth-ing'*hatdilet to' SlieW t. th'at 'be 'hadh anything :to 'do ` with her Oing-'Phsw: • • • • • • . am sPemal' cbtuisel fOr the State said that:the defendant , had, the money , to do it, and that he believed that he' did dO' A: He' Wa g 'gain referiiig the fact that the defadirit had Cariied Ithe tO'El POO'. This COurt haS been very careful to omard the rights of accused persOnS, and . cOunSel for the 'State is never allowed tO."t'ate' l fact'C'WhiChP afe' 'hot eVideneee 'iOr the purpeSe Of ('MviCtib'n. "'Counsel fdi. 'tlie State not only ' , g tOe'd that he' belieVed that the' defe l nd'ant had caitried' the 'girl: tO El se,' bdiht' th . e pi-esuinptiodas that lie had' carried HO-there: ' " '" . , „ ' ab OVe stated; the coUrt refused .eiter repri- Mand 'the • attor ' ney , it) , or to interfere,*ith him: in any way in making this.kincl of an agument. This amourited to an apprOVal of ,the ' ai . ,iii'ment; and-COU4itutes' su.Cb prejudicial error as calls reVersal of the judgment.. Dor'an v. S• tal, ,141 Ark. 442; Prow* V. Statq, 143 Ark. 523; Cros'by v. Siate; Ark. 'and Iliighes 'v., Sicile,‘ 154 Ark. 621: , There has been brought .tp, qur . attention ,by writ .of certiorari.un affidavit from special , counsel for-the State and other persons..tO the effect, that he. did not tell the jury that there .was a• presumption that, ,th,e defendant carried the girl with whora lie is charged to:have had sexual intercourse down •-tQ ,E1 Paso, Texas, or that he believed that he ligd Oryi,ed . lwrocloApl We, cannot
*consider these :affidavits,'.' , however. We UMW be- gov-ernedby the biil ;of. :e'xCeptions • Whidh" is' 'Signed 'by' 'the ciraiit 'judge Trying' thecase,' arid . ,Which l niust cbetaWen as the kedOrd in the :case. " So'af the 'tecoi-d• 'disanseS, special ' counsel 'fof the State used the Janguage attributed to him, and 1 WO; eannot donsider his-denial: that he inad 'the argument"' I; • • ' ' • It folloWS' that' for 'the 'eri-Or inallOwing th • e iMpropet ar g ument • to go' . • • tbthe jiiry as indiehte&M the 'opinidi. the jildgment' Will" 'be '.i.e/OrSed;'• and"thd I canse' felnanded f Or a 'new' trial: i • • , . , •,:,.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.