(after stating the facts). 1. The first point upon which the Attorney General confesses error is the absence from the court room, of the presiding judge. The record on this point reads as follows: “While defendant’s counsel was making his argument to the jury, the judge stepped across the hall from the court room to the water closet, and was absent from the court room for the space of about 'two minutes, and while out of the court room T. S. Osborne, a regular practicing attorney of the bar, sat in the judge’s chair at the request of the judge. No objection was made to this, and no exception taken to it during the trial.”
The authorities are not entirely harmonious as to the eifect of the absence of a judge from the bench during the progress of a trial. The subject may be found reviewed in Horne v. Rodgers, 111 Ga. 362, s. c. 49 L. R. A. 176; Ellerbee v. State, 75 Miss. 522, s. c. 41 L. R. A. 569. This court had the subject before it in Stokes v. State, 71 Ark. 112, and the court followed the language of Judge Chalmers in Turbeville v. State, 56 Miss. 793, a leading case on the subject. The Turbeville decision is applicable here, as shown by the following excerpts: “During the arguments of counsel to the jury, the judge left the bench and stepped into a room immediately adjoining and in the rear of the bench, and separated from it only by the thickness of the wall, through which a door opened. He placed a member of the. bar on the bench, with instructions to call or notify him' if needed. He remained in this room, thus absent from the bench, and distant from it, as the bill of exceptions shows, five or six feet, during the greater portion of the time consumed in the several addresses of counsel to the jury. It does not appear whether the door which opened from the bench, or rostrum, into this room (styled the judge’s retiring room) was closed or open while the judge was thus absent. * * * If we could consider this statement of the facts as showing such absence from ■the room on the part of the judge as constituted even a temporary relinquishment of the control of the court and of the conduct of the trial, we should'unhesitatingly reverse the judgment. There can be no court without a judge, and his presence, as the presiding genius of the trial, is as essential during the argument as at' any other time. We do not mean to say that he must actually listen to every word that falls from the lips of counsel while they are addressing the jury, for this might impose a burden too heavy to be borne, but we do mean that the conduct and control of the argument within legitimate limits is confined to him as a judicial duty, and cannot be by him devolved upon another. While he will not be precluded from changing his seat to any portion of the room he may prefer, or from temporarily engaging in conversation, or reading or writing, he must remain within the hearing of counsel, so as to be able instantly to assert his authority, if demanded by anything that may occur. While it will rarely be necessary or proper for him to interfere with counsel, instances may arise that will require it;-and, moreover, the conduct of the jurors, spectators, or officers of court may be such as 'to demand the instant interposition of his authority. * * * The bill of exceptions in this case fails to show clearly that there was any relinquishment by the judge of •the functions of his office, or any such bodily absence as prevented their instant assertion when demanded; and we decline, on this account, to reverse the judgment.”
It is thus seen that the determining test is whether the judge has lost control of the proceedings. If he has done so, even if it be but for a short time, the integrity of the trial is destroyed. Applying that principle here, the record fails to show that the judge was out of hearing of the proceedings of the court when he stepped across the hall to a closet for a brief space of time. It does not disclose the distance from the court room to the closet, or whether the doors were opened or closed, or whether the proceedings could or could not be heard by him! The matter then before the court was the address of the defendant’s counsel to the jury. The trial having taken place in June, and the doors between court rooms and halls at that time of the year being usually left open, it may Veil be inferred that the judge was within the hearing of the proceedings of the trial and within the reach of it so that he could instantly have asserted his authority. On the other hand, it may have been that the doors were closed, or that the closet was in such a position that he was withdrawn entirely from hearing the proceedings, and was unable to instantly control them — in which event it would vitiate the trial. The burden is on the appellant to show affirmatively that the judge had lost.control of the trial; and this record fails to show that, leaving it, at best, a matter of conjecture as to whether or not he had removed himself for a brief period of time from the immediate presence of the proceedings where he could not exercise his legitimate functions as presiding judge of the court.
II. The next confession of error is for the giving of the fourth instruction, which is as follows: “If you find from the evidence that the defendant made a confession that he had committed the crime of rape on the person of Margaret Irene Taylor, that alone would not be sufficient to authorize you to convict; but the confession of defendant, if made, accompanied by proof that the offense was actually committed, will warrant a conviction; and if you find from the evidence beyond a reasonable doubt that defendant made the confession of the crime, and that the crime was committed, you should convict.”
The Attorney General says that under Duckworth v. State, 83 Ark. 192, and Thomas v. State, 85 Ark. 138, this instruction is erroneous.
This is not an instruction on the weight of the evidence, and is not obnoxious to the objection for which the instructions were condemned in those cases. The court left it to the jury to say whether or not the appellant made a confession, and told them that, if they found that he did make a confession, such fact alone would not authorize them to convict, but that they must also find that the offense was committed, which was tantamount to saying that they could not convict the defendant because he made the confession, but that they must go further and find that his confession was true before they were authorized to convict. There was really no dispute in the evidence about the fact that the defendant had made a confession, and that it was a confession in open court. The instruction as a whole fairly submitted to the jury to find beyond a reasonable doubt whether the defendant made a confession, and whether the crime was committed; in other words, whether the confession was true.
While the form of the instruction cannot be commended, prejudicial error is not found in it. If specific objection had been made to it, its awkward form could and should have been corrected. The real question in the case was, not whether the confession was made, but whether the crime was committed; and the instructions on the only real issue were clear and sound. In one respect the instruction is more favorable to the defendant than he was entitled to. It is based on the. theory that his confession in the examining court was an extrajudicial confession, and needed corroboration, pursuant to section 2385 of Kirby’s Digest: “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such offense was committed.”
Confessions made in preliminary examinations before magistrates are confessions in open court, or, as they are usually ex-' pressed, “judicial confessions.” i Greenleaf on Evidence, § 216; 12 Cyc. 459 and 473; 6 Am. & Eng. Enc. 523; 3 Enc. of Ev. 352; Matthews v. State, 55 Ala. 65; State v. Needham, 78 N. C. 474; State v. Lamb, 28 Mo. 218; Speer v. State, 4 Tex. Cr. App. 474; Com. v. Brown, 150 Mass. 330.
From these authorities it will be seen that a confession made in a preliminary hearing, when made in the due course of proceedings of the examining court, is a judicial confession within the meaning of the law, which holds such confessions alone to be sufficient to sustain a conviction.
III. The Attorney General confesses error on account of remarks of the prosecuting attorney. He does it upon the ground that the testimony, if it established anything, established rape, and not attempt to commit rape, and that the testimony to sunstain the conviction is weak, and 'that the improper argument of the prosecuting attorney may furnish the key to the verdict returned by the jury. In view of the confession in court being of itself sufficient to sustain the conviction, the force of the argument is broken. This confession was of the graver, and not of the lesser, crime; and it is within the power of the jury to find a defendant guilty'of an assault to commit a rape, although the evidence justified a .conviction of rape. This was settled in Pratt v. State, 51 Ark. 167.
IV. The next confession of error is on account of the argument of the prosecuting attorney in his opening statement. He said that the defendant was a “man of lowest character, and unworthy of belief; a gambler of the meanest type, preaching in the daytime and gambling at night” — and using other denunciatory language. The defendant objected to said statement, and the court sustained the objection. The judge was not asked to do anything except to sustain the objection to the argument, which he did. Had the court been asked to reprimand counsel for stating a matter not proper to be stated in presenting'the State’s case, and called the attention of the jury to the fact that the character of the defendant was not at that time in issue, and could not be unless he was called as a witness, and then only for the purpose of impeaching him as a witness, doubtless it would have been done; and, had the court failed to properly eradicate the improper remarks, there would then have been something before this court to consider. Kansas City S. Ry. Co. v. Murphy, 74 Ark. 256.
After the evidence was closed, the prosecuting attorney, in the presence of the jury, requested the court to permit the State to introduce evidence to show that the defendant was a man of bad character, a gambler of the worst type and unworthy of belief. The defendant objected to said statements and to the introduction of the evidence, and the court had the jury to retire from the court room, and afterwards heard argument on this point and sustained the objection of the defendant. As the defendant had theij testified, testimony as to his reputation for morality and veracity would have been competent; and the court should have permitted the prosecuting attorney to introduce testimony on these subjects, but riot as to the fact that he was a gambler. The ruling of the court was more favorable to the defendant than he was entitled to. There is nothing for this court to review upon it, other than the question whether the effort of the prosecuting attorney to make this proof was such flagrant conduct as would of itself prejudice the defendant’s cause. It was a mere offer, doubtless in good faith, to prove what he was entitled to prove — and a little more. The defendant did not ask that the effect of it be removed, and only objected to the testimony being admitted, and the court sustained his objection. He got all he asked of the court, and cannot complain that the court did not do more for him than he asked'of it.
These are the only grounds upon which error is confessed. Appellant has not favored "the court with a brief, but was content to submit the case upon the confession of error. The court has examined the other assignments of error in the motion for new trial, which were, briefly stated, as follows:
Exception was taken to the evidence of witnesses ■ to the effect that they accompanied the prosecuting witness to the park, and there found a man’s and a woman’s tracks leading to a place where the ground was trampled down in such condition that it gave the appearance of a scuffle having taken place. The fact that the prosecutrix made complaint is admissible under certain circumstances; but the details of the complaint are not admissible unless they constitute a part of the res gestae, or in corroboration of 'her testimony when it is attacked. Her physical appearance, and the condition of her garments, and sometimes the condition of the place where the crime is alleged to have been committed, are admissible in corroboration. See Pleasant v. State, 15 Ark. 624, Enc. Ev. 587, 590 and notes. It is wholly unimportant to go into that subject, because the defendant himself testified to the fact that he and Mrs. Taylor walked around the park for a while, and that they decided they would go and fix a place, mash down some weeds and give the place the appearance of a scuffle having taken place, and then she would go back to town and have him arrested. In other words, they were manufacturing evidence tending to prove that 'the rape had been committed; and the question was not whether their tracks were at the given place, whether the weeds were mashed down and a garment torn, but it was whether there was a crime committed, or whether a mere stage-play had taken place.
The court, at the instance of the prosecuting attorney, ordered the prosecutrix to be arrested for perjury at the conclusion of her testimony, after she had admitted that she had testified in the justice’s court to facts showing rape. No objection was made to this proceeding, no exception taken to the action of the court thereupon, and therefore there is nothing to review on this assignment of error.
Other language of the prosecuting attorney denunciatory of the defendant was assigned as error in the motion for new trial ; but exception was not taken to it at the time it was made, nor were any rulings of the court asked upon it.
At another time during the trial the judge vacated the bench and asked an attorney to occupy his seat; but he did not retire-from the court room, merely going to a window in the court room for fresh air for a time. As stated in the Tuberville case and the Stokes case, heretofore referred to, the judge is not required to sit in one place in .the court room, but so long as he is there, in the presence of the parties and the jury and in control of the proceedings, the integrity 'of the trial is not affected by a change in his seat.
Exceptions were taken to the instructions. The instructions merely followed the statutes on the subject of the crime and a few general principles governing it. There is no error in them. The court gave all requested by the defendant hut one, and it was manifestly incorrect.
Judgment affirmed.