Hiuu, C. J.
Charlie Meisenheimer was indicted for rape, and convicted of assault with intent to commit rape; the jury left the punishment to the court, who fixed it at fifteen years in the penitentiary.
1. It is alleged that the court erred in the selection of the jury in failing to instruct the sheriff to summons, after the panel was exhausted, twice the requisite number to complete the jury, as required by section 2194, Sandels & Hill’s Digest. The record shows the panel consisted of less than twenty-four jurors, and the defendant agreed to proceed with less than a full panel, and waived the drawing of the jury. One juror was selected from the regular panel, and, it then being exhausted, the court ordered bystanders summoned. Fifteen bystanders were placed in the box, and the defendant then objected to proceeding with the further selection of the jury until twice the number required to complete the jury were in the box. The court overruled the objection, and the selection of the jury proceeded. No exception was taken to the ruling. An objection precedes an exception. The objection'calls for a ruling by the trial court, and the exception directs attention to and fastens the objection for a review on appeal. If a party does not follow the ruling on his objection by clinching it with an exception, he waives the objection. Elliott on App. Proc. § 769. This was a clear waiver of the objection here, and amounted to a consent to further select the jury as previously agreed to, instead of strictly complying with the statute.
2. Objection was taken to the testimony of John Jones, due to his alleged incompetency. As the point testified to by him had already been admitted to be true by the defendant, no possible harm could have resulted, even if the witness was incompetent.
3. In the cross examination of one of.the alleged accomplices of the defendant, the defendant’s counsel asked him what the defendant said when he came out of the house at the time of the alleged rape. This was objected to by the State, the objection sustained, and exceptions noted. It is insisted here that defendant was entitled to have this evidence a part of the res gestae. The question was entirely too broad to admit the answer in that form. It might have called forth a wholly irrelevant matter totally inadmissible. The defendant, when the court ruled out the answer to this question, should have specifically offered to prove by the witness a certain fact, thus showing its competency as part of the res gestae. This would have been “laying his finger” upon the point, which must necessarily be done in order to obtain a hearing on it here. Vaughan v. State, 58 Ark. 353.
4. The next objection is to the testimony of Mann relating a confession of the defendant. In the evidence, and also in the instructions given and refused, this point is preserved. The court refused defendant’s instruction No. 5, and gave of its own motion No. 1, which will be set out by the Reporter.
The statute in question was taken from the Kentucky Code, and the Court of Appeals said of it: “The manifest meaning of this provision is that, besides the proof of any confession a defendant may have made of his guilt, unless made in open court, there must, to warrant a conviction, be other evidence conducing to prove him guilty of the offense alleged, or, in other words, to show that such an offense had been committed, and not inconsistent with his guilt, and not merely' some ‘other testimony’ which might have no tendency whatever to establish the charge.” Cunningham v. Com. 9 Bush, 149.
There were ample circumstances here conducing to prove the guilt of appellant: the condition of the woman, the noises at the house, the condition of the house next morning, his flight and attempted escape after return, and other matters. Without his confession furnishing a key to these, other facts and circumstances, they would, of fhemselves, be insufficient to convict, but with the facts otherwise proved the corroboration or “other proof” was abundant.
The proposition that the confession is evidence, but not sufficient per se, to prove the crime seems fully established. See State v. Patterson, 73 Mo. 695, and cases cited; Bishop’s New Criminal Procedure, § 1058, authorities in notes; Underhill on Criminal Evidence, § 147. These cases are in accord with Bradley v. State, 32 Ark. 704, and Redd v. State, 63 Ark. 457, although neither of these cases determine this exact point. There was no error on this phase of the case.
5. Error is alleged in not giving instruction No. 9 asked by defendant. The Reporter will set out that instruction.*
The house where the attempted rape occurred was a quarter of a mile distant from its nearest neighbor. According to the theory of the State, the woman was ravished by four men through putting her in terror and accentuating it with violence. According to the theory of the defense, the defendant was but a looker on at a carnival of beastly licentiousness. The instruction was abstract. Nothing in th,e evidence justified it being given.
6.
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Hiuu, C. J.
Charlie Meisenheimer was indicted for rape, and convicted of assault with intent to commit rape; the jury left the punishment to the court, who fixed it at fifteen years in the penitentiary.
1. It is alleged that the court erred in the selection of the jury in failing to instruct the sheriff to summons, after the panel was exhausted, twice the requisite number to complete the jury, as required by section 2194, Sandels & Hill’s Digest. The record shows the panel consisted of less than twenty-four jurors, and the defendant agreed to proceed with less than a full panel, and waived the drawing of the jury. One juror was selected from the regular panel, and, it then being exhausted, the court ordered bystanders summoned. Fifteen bystanders were placed in the box, and the defendant then objected to proceeding with the further selection of the jury until twice the number required to complete the jury were in the box. The court overruled the objection, and the selection of the jury proceeded. No exception was taken to the ruling. An objection precedes an exception. The objection'calls for a ruling by the trial court, and the exception directs attention to and fastens the objection for a review on appeal. If a party does not follow the ruling on his objection by clinching it with an exception, he waives the objection. Elliott on App. Proc. § 769. This was a clear waiver of the objection here, and amounted to a consent to further select the jury as previously agreed to, instead of strictly complying with the statute.
2. Objection was taken to the testimony of John Jones, due to his alleged incompetency. As the point testified to by him had already been admitted to be true by the defendant, no possible harm could have resulted, even if the witness was incompetent.
3. In the cross examination of one of.the alleged accomplices of the defendant, the defendant’s counsel asked him what the defendant said when he came out of the house at the time of the alleged rape. This was objected to by the State, the objection sustained, and exceptions noted. It is insisted here that defendant was entitled to have this evidence a part of the res gestae. The question was entirely too broad to admit the answer in that form. It might have called forth a wholly irrelevant matter totally inadmissible. The defendant, when the court ruled out the answer to this question, should have specifically offered to prove by the witness a certain fact, thus showing its competency as part of the res gestae. This would have been “laying his finger” upon the point, which must necessarily be done in order to obtain a hearing on it here. Vaughan v. State, 58 Ark. 353.
4. The next objection is to the testimony of Mann relating a confession of the defendant. In the evidence, and also in the instructions given and refused, this point is preserved. The court refused defendant’s instruction No. 5, and gave of its own motion No. 1, which will be set out by the Reporter.
The statute in question was taken from the Kentucky Code, and the Court of Appeals said of it: “The manifest meaning of this provision is that, besides the proof of any confession a defendant may have made of his guilt, unless made in open court, there must, to warrant a conviction, be other evidence conducing to prove him guilty of the offense alleged, or, in other words, to show that such an offense had been committed, and not inconsistent with his guilt, and not merely' some ‘other testimony’ which might have no tendency whatever to establish the charge.” Cunningham v. Com. 9 Bush, 149.
There were ample circumstances here conducing to prove the guilt of appellant: the condition of the woman, the noises at the house, the condition of the house next morning, his flight and attempted escape after return, and other matters. Without his confession furnishing a key to these, other facts and circumstances, they would, of fhemselves, be insufficient to convict, but with the facts otherwise proved the corroboration or “other proof” was abundant.
The proposition that the confession is evidence, but not sufficient per se, to prove the crime seems fully established. See State v. Patterson, 73 Mo. 695, and cases cited; Bishop’s New Criminal Procedure, § 1058, authorities in notes; Underhill on Criminal Evidence, § 147. These cases are in accord with Bradley v. State, 32 Ark. 704, and Redd v. State, 63 Ark. 457, although neither of these cases determine this exact point. There was no error on this phase of the case.
5. Error is alleged in not giving instruction No. 9 asked by defendant. The Reporter will set out that instruction.*
The house where the attempted rape occurred was a quarter of a mile distant from its nearest neighbor. According to the theory of the State, the woman was ravished by four men through putting her in terror and accentuating it with violence. According to the theory of the defense, the defendant was but a looker on at a carnival of beastly licentiousness. The instruction was abstract. Nothing in th,e evidence justified it being given.
6. The instructions given were in full accord with the decisions of this court, and covered every phase of the case which the appellant was entitled, under the evidence, to have presented to the jury.
7. Statements of the prosecuting attorney in the closing argument, conduct of the court in holding the jury together till a late hour and admonishing them to agree on a verdict, and other matters are assigned as errors. These have all been considered, and a majority of the court is of opinion that no one of them is prejudicial error, and that upon the whole case the judgment should be affirmed, and it is so ordered.
BaTTee, J., dissents. Note. — Instruction No. 5, on the admissibility of extrajudicial confessions, asked by defendant, was as follows: “5. Statements made by defendant can only be considered by you if the other evidence in the case satisfies you beyond a reasonable doubt that May Lockhart was forcibly ravished by some one; that is, you cannot consider any statements of his to prove that a crime has been committed, but only [to] connect him with a crime already otherwise proved.” The court refused to give this instruction, but on his own motion charged the jury on this subject as follows: “1. Statements made by defendant cannot be considered by you in determining whether the deceased was forcibly ravished; that is, such statements alone will not be sufficient to justify you in finding that deceased was ravished; but such statements may be considered by you, along with other circumstances, if there are such circumstances, tending to show that the crime was in fact committed.” — (Rep.)