An indictment was returned by the grand jury of Johnson County accusing the defendant Hobart Snow of the crime of rape, committed on the person of Pearl Martin, a young woman about the age of seventeen years. On the trial of the case defendant was convicted of assault with intent to rape and the punishment was fixed at confinement in the penitentiary for a term of fifteen years.
The first ground urged for reversal is that the court erred in refusing to quash the indictment because the names of all the witnesses who appeared before the grand jury were not endorsed on the indictment. The record does not show that defendant asked for a ruling of the court on the motion to quash. Moreover, this court decided in Johnson v. State, 33 Ark. 174, that an indictment should not be quashed on account of the failure to endorse thereon the names of witnesses, but that on application of the accused the court should require the prosecuting attorney to endorse the names of the witnesses on the indictment or furnish a list of the witnesses to the accused. No such application was made to the court in this case.
The next ground for reversal urged is that the court should have granted defendant’s motion for continuance on account of absent witnesses. It is stated in the motion that the two witnesses would testify that they were present when the act of sexuál intercourse took place between defendant and Pearl Martin and that she consented to the intercourse. This testimony would have been cumulative of that of other witnesses who were present at the trial. Besides, the motion for continuance failed to show diligence in an effort to procure the attendance of the absent witnesses. The testimony shows that there were six boys present, defendant being one of them, and that three of them had intercourse with the girl. She testified, in substance, that the intercourse with her was had forcibly and against her will, but the boys testified that she consented. There is a conflict in the testimony, but the verdict of the jury determined that issue' against the defendant. It can not be successfully maintained that the verdict is entirely without substantial evidence to support it. If the sexual intercourse between defendant and the girl was, as the jury found, forcibly and against her will, the verdict should have been one finding defendant guilty of the crime of rape, for it seems to be undisputed that the act of sexual intercourse between the parties was fully consummated. But the fact that the jury have acquitted defendant of the higher offense, which the evidence warranted, is not a matter of which he can complain since the verdict of the jury was an act of leniency.
Again, it is urged that the judgment should be reversed because the jury fixed the verdict by the quotient method. This charge is not sustained by evidence, except by the affidavit of a juror, which is inadmissible to impeach the verdict. Speer v. State, 130 Ark. 457.
The motion for new trial sets forth newly-discovered evidence favorable to defendant, which a witness introduced by him failed to disclose when he was examined. The motion fails to show diligence. The witness was introduced by defendant and gave testimony favorable to his defense, but questions were not propounded to elicit the testimony said to have been disclosed after the trial. The granting of a new trial on such grounds is generally a matter within the sound discretion of the trial court, and no abuse of discretion is shown in this instance.
Affirmed.