#### Carmen v. State.

Opinion delivered September 27, 1915.

1. Incest — indictment—-sufficiency.—An indictment is sufficient to charge (the crime ¡of incest which alleges that the ¡adultery was committed "by defendant, a ¡married man, with one O. B., his niece.

2. Criminal law- — incest—former jeopardy — sufficiency of indictment. — An indictment -charging incest is not sufficient to sustain a judgment of conviction, where it fails to allege that defendant was a married man at the time he committed the adultery with *173his niece, which constituted the crime of incest, and where defendant has been tried under such an indictment, nothing short of an actual acquittal ¡otr conviction will confer immunity from further prosecution for the same offense. .

3. Trial — discharge of jury — -failure to beach verdict. — In a erimi-. nal prosecution, the count may discharge the jury, when the jury fails to agree upon a verdicit, and it satisfactorily appears to .the trial judge that there is no probability of a verdict being reached^

4. Continuances — discretion of court. — The trial .court (has a discretion in the matter of granting continuances and its action will not he reversed unless there .appears to he a manifest abuse of its discretion.

5. Incest — evidence—acts of defendant. — In a prosecution fotr incest, evidence «f .the conduct of deceased with (his niece, with whom the crime was alleged to have been committed, held admissible as tending to ished light upon (the relations of the parties at a time witbin tbe statutory period.

6. Incest — evidence—acts of defendant. — In a prosecution foi* tbe crime of incest, evidence that deceased executed a ¡bond for the support of the child alleged to be his, in a bastardy proceeding, held admissible, when the court charged the jury that the same would not constitute am admission .of defendant’s fatherhood, if, at the time he executed the bond, he did not understand what he was signing.

■Appeal from Clay 'Circuit Court, Eastern. District; J. F. Gautney, Judge;

¡affirmed.,

STATEMENT BY THE COURT.

J. F. Carmen was indicted, charged with the crime pf incest committed by having carnal ¡knowledge of his niece, Ona Bnrtns, the indictment not alleging that he was a married man. A demurrer was interposed to the indictment and overruled, and he was placed upon trial and the jury, having failed to agree, were discharged by tbe court 'after they bad reported tbe second time their failure to arrive at a verdict.

On the 8th of May (before the cause was again reached for trial the grand jnry in session returned another indictment against tbe defendant, charging ¡him with incest committed with his niece, Ona Burns, and also that (he wias ia married man. After its return, the conrt upon its own motion sustained the demurrer to the first indictment which it had previously overruled. *174Upon the case 'being called, for trial the defendant moved for a continuance because of the serious illness of his wife, which was denied. A demurrer to the second indictment was overruled and the defendant interposed a plea of former jeopardy, alleging that he had been put in jeopardy of his liberty for this offense by the former trial. The testimony was introduced on this issue, showing the mistrial on the first indictment iand the court directed the verdict for the State upon this plea. The testimony shows that Ona Burns, the niece of the defendant (who “was not bright,”'as one of the witnesses said) lived at defendant’s house with him iand his wife, who was in poor health and about seventy years of age. Several witnesses testified to an apparent undue intimacy between the defendant and his niece, Ona Burns, ¡a half-witted girl about twenty-one years of age, and one stated positively that he had seen defendant in the act of having sexual intercourse with said niece in the corn crib at the barn. She was delivered of a child about the usual time after these acts of sexual intercourse were alleged to have occurred; and the county judge, upon a complaint made in a bastardy proceeding, sent for the defendant and told him of the complaint and he said he was not the father of the child but that he was willing to give bond required for its support. The judge informed him that it was necessary for him to admit that he was the father of the child or submit to a trial of that question and he said that it would be all right, that he would make the bond, which he did do and returned' and filed it with the judge. He admitted having made the bond, did not deny that the judge explained the circumstances and his rights in the matter fully, as he claimed to have done, but said he only understood that he was giving the bond to support the child in order that his niece and it should not be taken from his house to the poor farm. The bond in regular form was introduced in evidence over defendant’s objection iand upon the back of it was endorsed the following:

“On this day comes before me J. F. Carmen accused of bastardy, and the charge being stated, he enters a plea *175of guilty, and offers as sureties on his bond for the main-' teniance of said child J. W. Wickham and S. II. Smart, and said bond so tendered being conditioned as provided by law, and the said Oma Burns waiving her claim to a judgment against the said J. F. Carmen, said bond is by the court ordered' filed and approved, .and a judgment thereon entered.

This......................................................day of April, 1914.

B. B. Holifield, Judge.”

The defendant denied ever having intercourse with the girl, but admitted that he had asked her to have intercourse with him, as two witnesses testified he had told them, but said that he had done so as he told said witnesses only for the purpose of teaching the girl a lesson, land that he had so explained it satisfactorily to 'his wife upon the girl having told her of his conduct. There was other testimony tending to show that some other persons could have been the father of the child and the girl herself stated definitely that one of them “had had a chance to be.” The defendant’s prior good reputation was established and there was testimony tending to some extent to discredit the statement of the witness who had seen the parties in the sexual embrace, certain witnesses stating that he could not have seen them leaving the barn where the act was said to have occurred after he had ridden away from the gate to where he said he was at the time they left the barn.

R. H. Dudley, for appellant.

1. The demurrer should have been sustained. The indictment did not particularly describe the specific act relied upon as constituting the crime of incest. 22 Cyc. 50; 58 Ark. 3; 22 S. W. 840.

2. The plea of former jeopardy should haye been sustained. Art. 2, sec. 8, Const.; 3 Bl. Comm. 361; 12 Cyc. 269, 270; 43 Ark. 271; 48 Ark. 36; 26 Ark. 260; Cooley’s Const. Lim. 327; 26 Ark. 260; 43 Ark. 271. ■

3. Because of the serious illness of appellant’s wife, her critical condition as shown in evidence and the neces- ■ sity for appellant’s presence with, and attendance upon *176her, at the time of his trial, the motion for continuance ought to have been granted, and its refusal was an abuse of discretion.

4. The testimony of alleged acts of familiarity occurring more than three years before the finding of the indictment, was not admissible, iand the court erred in mot excluding it.

5. A judgment in a civil case can not be introduced as evidence in a criminal prosecution. 'The court therefore erred in admitting in evidence the bond, warrant ■and judgment of the county court in the bastardy proceeding. Art. 7, sec. 28, Const.; Kirby’s Dig., § § 481, 1375, 6228; 38 Ark. 150; 53 Ark. 476; 45 Ark. 56; 55 Ark. 387; 90 Ark. 514; 101 Ark. 29; 1 Black on Judgments, 2, § 1; 2 Id., § 529; 68 Ark. 180; 1 Greenleaf on Ev., § 537; 3 Jones, Ev., § 589; 77 Ala. 202; 51 Tex. Crim. Rep. 289; 99 Ark. 32; 91 Ark. 555.

It was error to instruct the jury that they might consider the evidence touching bastardy proceedings for any purpose whatever. 39 Ark. 278; 73 Ark. 262.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The indictment is sufficient. It charges that appellant “then iand there being .an adult married man, then ¡and there unlawfully, wilfully, feloniously and adulter ously, did have carnal knowledge,” etc. 95 Ark. 233, 235.

2. The plea of former jeopardy was properly overruled. Kirby’s Dig., § 2293; 10 Ark. 608, 618; 42 Ark. 35, 39; 48 Ark. 36, 40.

3. It is clear from the evidence that there was no abuse of .discretion in overruling the motion for continuance. It was properly overruled.

4. Evidence as to prior acts of intercourse was .admissible. 75 Pac. 166; 22 Cyc. 53, note 93. Even prior acts occurring beyond the period of limitation may be shown, where the jury is instructed that such acts are admitted only for the purpose of throwing light upon the relations .existing between the parties at the time al*177leged in the indictment 'within the period. 35 S. E. (Ga.) 161,163; 31 Atl. 123.

Kirby, J.

The .allegations of the indictment under which the defendant was convicted sufficiently alleged the offense and no error was committed in overruling the demurrer thereto. Martin v. State, 58 Ark. 3.

(1) It stated in technical language that .the adultery was committed by defendant, a married man, with Ona Burns, his niece, iand, as said in Gaston v. State, 95 Ark. 233, “ The gravamen of the crime of incest is the unlawful carnal (knowledge, and it is unlawful because of consanguinity. The object of the statute is to prohibit by punishment the sexual intercourse of those who are related within the prescribed degrees. ’ ’

(2) Neither did the' court err in denying defendant’s plea of former jeopardy. The indictment under which he was first tried was not sufficient to sustain a judgment of conviction, not having alleged that the defendant was a married man at the time it was alleged he committed the adultery witli his niece, which constituted the crime of incest. Martin v. State, supra. And nothing short of an actual acquittal or conviction under such an indictment will confer immunity from further prosecution for the same offense upon the accused. State v. Ward, 48 Ark. 36.

(3) Moreover, there was no verdict or judgment upon the trial ¡but a mistrial, the court having discharged the jury, as it had the right to do, after they failed to agree upon a verdict and it satisfactorily appeared to him that there was no probability of one being reached. Sections 2396, 2397, Kirby’s Digest.

(4) Neither was error committed in denying the motion for a continuance. The court has large discretion in the granting or refusing of motions for continuance and, unless there appears to have been a manifest abuse of its discretion in the denial of such motion, its action will not be reversed, and there is no such condition shown here as would indicate any such abuse of discretion.

(5) The proof of conduct of defendant with his niece and acts of intercourse occurring at a time when *178the offense thereby committed would be barred by the statute of limitations was competent and admissible as tending to shed light upon the relations existing between the parties at a time within the statutory period, and shows the probability of the commission of the offense charged, and the court by proper instructions limited the jury’s consideration of it to this purpose. Adams v. State, 78 Ark. 16, 92 S. W. 1123; Taylor v. State, 35 S. E. (Ga.) 161; Commonwealth v. Bell, 31 Atl. 123.

(6) It is strenuously urged that the court erred in permitting the bond given by the defendant in the bastardy proceedings or any of the entries or judgments relating thereto to be introduced in evidence. This question has given us serious concern, but there was no adjudication by the county court in the bastardy proceedings that defendant was the father of the child of his niece with whom he is alleged to have committed incest, after a trial of the question, but it was shown that he voluntarily admitted that such was the fact upon being told by the county judge that a charge of the kind had been lodged against him and agreed to and did make the bond required by the statute in such cases without any warrant, having been issued or any trial thereof. The court, by appropriate instructions, limited the consideration of this matter by the jury to a voluntary .admission on the part of the defendant, and instructed them that if they should find he did not understand the purpose or effect of the bond, or didn’t understand enough about the transaction to know that he was charged with being the father of the child, that they should not consider it as an admission even, and we do not think any error was committed in this respect.

The case is unlike that of Ireland v. State, 99 Ark. 32, in which there wais a judgment against the county treasurer by the county .court, determining finally the amount he had failed to account for and pay over ,as treasurer, which also recited he was short in his accounts with the county in said .sum. That judgment being final could not be disputed or explained and it was held error to permit its introduction upon the trial of the criminal charge *179against the treasurer for embezzlement of the county’s fund.

The evidence is amply sufficient to support the verdict, and no prejudicial error having occurred in the trial the judgment is affirmed.