ARK.] THORNSBERRy V. STATI 435 SiATE; Crirm.3978! . Opiniqri 1. JURY.-A. juror is not; under , the statute, (C. , & M. pig., § 16,9) disqualified in a prosecution for, rape because his'son . ho married into the same family into which , a," member of the prosecUting witness' family 'had married since . such 'marriage did net create a relatieri 'by affinitY befween the juror a:nd the prosectiting Witfiess. 2. CRIMiNAL LAW:— L Since a motion for new trial because of newly-discovered evidence is -addressed to:the. sound , discretion :of, the
436 THOENSBEEEY V. STATE. [192 court, .a refusal to grant a new trial because a jurOr failed to disclose his acquaintance and relation to father of prosecuting witness in a prosecution for rape is not an abuse of that discretion where there was, in fact, no relation between them. 3. MANDAMUS.-If court 'reporter fails or refuses to transcribe testi.- mony, the irial s court 'must first be applied to'for an ' order re-: quiring 'him to do so; and, if the trial court refuse to make the necessary order, the remedy is by application ;to the appellate court. • Appeal from Lee Circuit Court ; R. D. Smith • Special Judge ; afffrined.* , • • K. T. Sutton, for appellant. °: Carl • B. Bailey, Attorney General, .aad Gny E liams Assistant, for appellee. • BUTLER, J. The appellant was indicted for the Crime of rape, convicted for; carnal abuse. and sentenCed to an,: priSonment in the State Penitentiary for ten years. No bill of exceptionS • was., prepared and filed, •and on appeal the. sole . question we are asked to review is the alleged error of-the trial . coart. in refusing to . set aSide the' verdict 'of the jury and grant the appellaaC , a new trial. The motiOn for a . new trial wa§ baSed apon 'the Alleged fraud Of a juror in failing to disclOse 'his bias and Prejudice when being° questioned ° on his, vair dire as rto his °aCquaintanceship aad' relation to the father of the prosecuting witness. As before stated, we have no bill of . exceptions. showing the examination of the juror on his . voir di, and this was attempted to be supplied by the testimony of the appellant, and one of his attorneys as to what occurred at the juror 's examination and the testimony of other witnesses as to the relationship and acquaintance of the juror to the father of the prosecuting witness. This testimony tends . to show that during the year 1927 the juror, a My. Pitts, lived about three-quarters of a mile from Mr. -CoMpton, the father of prosecuting witness; that he occasionally attended a church in that neighborhood which was also attended by Mt: .Compton and hiS . -family. It WAS also shown that a sell of the _juror had married the 'daughter of one Shirley, - and that a daughter of . Compton had married into, the same family— perhaps marrying a son- of Shirley. ••
ARK.] THORNSBERRY V. STATE. 437 The aPpellant, being called to testify as• to what occurred . during the examination of the jurer, Pitts was asked by counSel if this question was . propoimded to Mr. •Pitts: "Are you 'conneCted with, related or asso-ciathd in 'any manner With the Compton lataily, eitherin a social way, buSiness . way; or otherwise?'" The answer was "yes," 'and .. he wa's then asked What Mr.' Pitts answered, and he. stated that it was "n'oP' • 'Acordingto • "Is your. dequain this witness Pitts was also asked: • t-ance; if any; with the' • COniptOn family; or yout. tion with any members of the COMpton faniily;' Stich' as would,:in any -way,.affect yoa in.the propel .. .and fair deliberation of' this; case?"..and to this question Pitts. answered "no." : 'He also stated that Mr. Pitts was asked if he was: in any' manner : related; by blood or marriage, to. the. Compton family,..and that he : answered that.he was not. One .of. appellant's . attorneys . testifie• d'Practically to the smite effect. as. the' appellant as . to what occurred at the voir dire examination of . Mr. Pitts.. • • Pitts was called and testified : that as he remembered the examination , he-was asked if he was . acquainted with the0 CoMptons and the Thornsberrys, and . he 'answe'red that he was. He Was alsb asked if he was, in any way, related to them, and answered that he 'was not; and that ho bare ' l k y new thein when he saw them. He stated . that the fact that one of. the 'CoMptons bad mari-ied into the Shirley family, and one of his boys into"the same faMily .did . not,:in his opinion, 'Create 'aii . Y . 'relationShip . 'on. his:- part to the Compton family ;'that . he had"no . bias or prejudice. and 'did • not intentionally' 'conceal- any•facts • oh his examination, but answered • the' que'stidliPfponndod fairly and' truthfully. TO us. this appears tO be the effect of Pitt's' testi-inony on the hearing for a new trial. He was-asked 'if, immediately after the verdict, he did not rush up tO Mr. Compton and . congratulate hith "uPon : the verdict the jury had returned. • He anSwerea tbat . he . did not, but 'that while looking for his son he met Mr. Compton and shook hands with him, but did nothing more. It is clear, giving the testimony the effect most favorable to the appellant, that the juror Pitts was not dis-
438 THORNSBERRY V. STArg. [192 qualified under § 3160 of Crawford & Moses' Digest. The fact of the intermarriage of members of the • Compton family with the Shirley family, a son of Pitts having also married a member of the Shirley family, did .not create the relation of affinitY to the prosecuting witness or any member of her family. The proceeding was in the nature of a new trial for newly-discovered evidence. The trial court has wide discretion in passing on motions for a new trial in such matters, and we cannot say that , such discretion was abused in the overruling of the motion in the instant case. • .. We note in the statement of' the appellant that he moved the court to. require the reporter to transcribe the testimony, and this motion was refused;Court stenographers are usually paid salaries which are sUpposed to compensate them for their duties in taking the testimony in criminal cases and preparing, bills of exception. When they fail or refuse to do this the•circuit court, on proper application, should compel the performance of :this duty. This court has held that application must be made first to the trial court for an order to compel the performance of• the stenographer's duty. Sutton v. City of Little Rock, 1.91 Ark. 603, 87 S. W. (2d) 20. In this case, from• the statement of appellant, it appears . that he made this application, but his remedy, on the refusal of the trial court to compel the, stenographer to perform.his duty, was by application to this court for review of. the action to *the court below.. We make these observations 'simply for the purpose of indicating that defendants, regardless of how poor they may be, are entitled' to a record of the proceedings in the court below to the end that those proceedings may be intelligently reviewed by this court, and the remedy is ample to. compel the court stenographer to prepare a bill of exceptions for authentication by the trial court. , . We have examined the record, and as no error appears on the face thereof; the judgment is affirmed:
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.