Wood, J.,
(after stating the facts). 1. The appellant contends that the evidence is insufficient to sustain the verdict, and that in passing on this issue the court must consider the testimony of witness, Elizabeth Mosley, in the light of an accomplice. The fact that Elizabeth Mosley was suspected, arrested and bound over to .await the action of the grand jury on such charge does not tend to show that she was an accomplice. Hence the ■court did not err in excluding testimony to that effect. It is stated by the appellant that Elizabeth Mosley was never indicted for the offense, and there was nothing in the evidence to warrant an indictment against her. See 1 R. C. L., p. 157, § 3.
Whether a witness is an accomplice to an alleged crime is, generally speaking, a question of fact for the jury. At least, if the facts are in dispute, it is a mixed question of law and fact. Edmonson v. State, 51 Ark. 115; Green v. State, 51 Ark. 189-198; Redd v. State, 63 Ark. 457; 1 R. C. L., pp. 157-158, § 3. See Murphy v. State, 130 Ark. 355.
The appellant did not request instructions on this issue in the trial court. If he had done so, and the issue had been correctly submitted, the jury might have found that witness, Elizabeth Mosley, was not an accomplice. But, even if we should hold that Elizabeth Mosley was an .accomplice, her testimony is sufficiently corroborated by the testimony of the appellant himself, and other witnesses, tending to connect the appellant with the commission of the crime. Appellant contends that, even if witness, Elizabeth Mosley, was not an accomplice, her testimony is not sufficient to sustain the verdict. The testimony is fully set forth in the statement, and it could serve no useful purpose to discuss it in detail. It is amply sufficient to sustain the verdict.
Counsel for the appellant contend that there was no proof of the corpus delicti, but in this counsel are mistaken. The dead body of the infant was found, and witnesses, medical experts, testified that its death was caused by asphyxiation or drowning. The testimony showed that it was the infant alleged to have been murdered by the appellant, and the testimony tended to prove that appellant, under pretense of taking the baby to be cared for by some of his friends living at Keo, drove away with the baby in his buggy at about 7 o’clock Saturday evening, on May 5, 1917, and that he was the last one seen with the baby alive. The body was identified, both from its dress and appearance, by Elizabeth Mosley as being her child. She stated that the baby was taken away by the appellant on Saturday evening. On the following day it. was found dead in Pourche Creek. The above evidence is sufficient to establish the corpus delicti. Edmonds v. State, 34 Ark. 744.
2. The indictment alleged that the appellant “did kill and murder a certain infant whose real name is unknown to these grand jurors.” The appellant alleged as one of his grounds for new trial, that no proof was adduced to sustain the above allegation. The Attorney General concedes that there was no direct or positive testimony to sustain the allegation. But there was testimony which tended to show that the infant was murdered when it was.only about 1 y2 months old; that it was an illegitimate negro babe; that its mother was a vagrant and that its father was a preacher and society organizer among his race with no settled abode. The testimony tended to show that his' endeavor was to send away and get rid of the child, and thus to conceal the evidence of his illicit commerce, rather than to give the baby “a local habitation and a name. ’ ’
The jury might have found that the infant was but a waif, the issue of illegal cohabitation, and not likely, under the unpropitious circumstances of its birth and fleeting existence, to have been given any name. Hence there was evidence from which the trial jury might have reasonably concluded that the name of the infant was unknown to the grand jury, for the reason that it had no name. The facts bring the case within the doctrine .announced by Chief Justice Watkins in Cameron v. State, 13 Ark. 712-719, that: “In order to sustain a count for an offense against one whose name the indictment alleges to be unknown to the grand jury, there must be evidence showing that the name could not reasonably be supposed to have been known to the grand ■ jury. The only safe rule is that the allegation in question is a material one traversed by the plea of not guilty, and must be sustained, and may be rebutted by proof. The inquiry is not whether the grand jury could, by any possibility have ascertained the name of the person which they aver to be unknown, but whether the traverse jury can find from the evidence that it was known to the grand jury, or can reasonably suppose that they could have ascertained it by due inquiry on the part of the prosecution. * * * But there was evidence on both sides, from which the jury might well have found the fact to be either way, i. e., that the name was unknown, or that the grand jury might have known it, by reasonable diligence.”
Where such is the case, and the trial court refuses to grant a new trial, and there is evidence, on the issue of guilt or innocence, to sustain the verdict, this court will not set it aside. The traverse jury was warranted in finding from the testimony that the investigation before the grand jury must have disclosed that the name of the mother of the child was Mosley, and that the name of the father was Eogers; that the child was illegitimate and without a name, at least, that its real name was unknown to the grand jury, and hence it was so alleged in the indictment. The testimony on this issue was sufficient to meet the requirements of the law that, where it is alleged that the name of the person injured was unknown, it devolves upon the State to prove such allegation. Cameron v. State, supra; Reed v. State, 16 Ark. 499; State v. Seely, 30 Ark. 162-163; Edmonds v. State, 34 Ark. 732; Floyd v. State, 80 Ark. 94-97.
3. The court did not err in permitting the transcript of the testimony of Cora Critz at a former trial of the cause to he read in evidence. The official court stenographer duly authenticated the testimony as that of Cora Critz, taken down in short hand at the former trial after the witness was duly sworn and when appellant and his counsel were present and had an opportunity to cross-examine the witness. He stated that the testimony so taken was correctly transcribed. A witness, who was personally well acquainted with Cora Critz, testified that, after the death of her son, she stated that she was going to Texas. She left and had not returned, so far as the witness knew. Two subpoenas for Cora Critz had been issued and were returned non est. The returns recited that the sheriff had made diligent search for the witness and had been unable to find her in Pulaski County, and that her whereabouts were unknown. The proper foundation was laid for the introduction of the secondary evidence and the ruling of the court in admitting it was correct. Hurley v. State, 29 Ark. 17; Kelley v. State, 133 Ark. 261; Shackleford v. State, 33 Ark. 539; McNamara v. State, 60 Ark. 400; Vaughan v. State, 58 Ark. 352; Wimberly v. State, 90 Ark. 514; Poe v. State, 95 Ark. 172.
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Wood, J.,
(after stating the facts). 1. The appellant contends that the evidence is insufficient to sustain the verdict, and that in passing on this issue the court must consider the testimony of witness, Elizabeth Mosley, in the light of an accomplice. The fact that Elizabeth Mosley was suspected, arrested and bound over to .await the action of the grand jury on such charge does not tend to show that she was an accomplice. Hence the ■court did not err in excluding testimony to that effect. It is stated by the appellant that Elizabeth Mosley was never indicted for the offense, and there was nothing in the evidence to warrant an indictment against her. See 1 R. C. L., p. 157, § 3.
Whether a witness is an accomplice to an alleged crime is, generally speaking, a question of fact for the jury. At least, if the facts are in dispute, it is a mixed question of law and fact. Edmonson v. State, 51 Ark. 115; Green v. State, 51 Ark. 189-198; Redd v. State, 63 Ark. 457; 1 R. C. L., pp. 157-158, § 3. See Murphy v. State, 130 Ark. 355.
The appellant did not request instructions on this issue in the trial court. If he had done so, and the issue had been correctly submitted, the jury might have found that witness, Elizabeth Mosley, was not an accomplice. But, even if we should hold that Elizabeth Mosley was an .accomplice, her testimony is sufficiently corroborated by the testimony of the appellant himself, and other witnesses, tending to connect the appellant with the commission of the crime. Appellant contends that, even if witness, Elizabeth Mosley, was not an accomplice, her testimony is not sufficient to sustain the verdict. The testimony is fully set forth in the statement, and it could serve no useful purpose to discuss it in detail. It is amply sufficient to sustain the verdict.
Counsel for the appellant contend that there was no proof of the corpus delicti, but in this counsel are mistaken. The dead body of the infant was found, and witnesses, medical experts, testified that its death was caused by asphyxiation or drowning. The testimony showed that it was the infant alleged to have been murdered by the appellant, and the testimony tended to prove that appellant, under pretense of taking the baby to be cared for by some of his friends living at Keo, drove away with the baby in his buggy at about 7 o’clock Saturday evening, on May 5, 1917, and that he was the last one seen with the baby alive. The body was identified, both from its dress and appearance, by Elizabeth Mosley as being her child. She stated that the baby was taken away by the appellant on Saturday evening. On the following day it. was found dead in Pourche Creek. The above evidence is sufficient to establish the corpus delicti. Edmonds v. State, 34 Ark. 744.
2. The indictment alleged that the appellant “did kill and murder a certain infant whose real name is unknown to these grand jurors.” The appellant alleged as one of his grounds for new trial, that no proof was adduced to sustain the above allegation. The Attorney General concedes that there was no direct or positive testimony to sustain the allegation. But there was testimony which tended to show that the infant was murdered when it was.only about 1 y2 months old; that it was an illegitimate negro babe; that its mother was a vagrant and that its father was a preacher and society organizer among his race with no settled abode. The testimony tended to show that his' endeavor was to send away and get rid of the child, and thus to conceal the evidence of his illicit commerce, rather than to give the baby “a local habitation and a name. ’ ’
The jury might have found that the infant was but a waif, the issue of illegal cohabitation, and not likely, under the unpropitious circumstances of its birth and fleeting existence, to have been given any name. Hence there was evidence from which the trial jury might have reasonably concluded that the name of the infant was unknown to the grand jury, for the reason that it had no name. The facts bring the case within the doctrine .announced by Chief Justice Watkins in Cameron v. State, 13 Ark. 712-719, that: “In order to sustain a count for an offense against one whose name the indictment alleges to be unknown to the grand jury, there must be evidence showing that the name could not reasonably be supposed to have been known to the grand ■ jury. The only safe rule is that the allegation in question is a material one traversed by the plea of not guilty, and must be sustained, and may be rebutted by proof. The inquiry is not whether the grand jury could, by any possibility have ascertained the name of the person which they aver to be unknown, but whether the traverse jury can find from the evidence that it was known to the grand jury, or can reasonably suppose that they could have ascertained it by due inquiry on the part of the prosecution. * * * But there was evidence on both sides, from which the jury might well have found the fact to be either way, i. e., that the name was unknown, or that the grand jury might have known it, by reasonable diligence.”
Where such is the case, and the trial court refuses to grant a new trial, and there is evidence, on the issue of guilt or innocence, to sustain the verdict, this court will not set it aside. The traverse jury was warranted in finding from the testimony that the investigation before the grand jury must have disclosed that the name of the mother of the child was Mosley, and that the name of the father was Eogers; that the child was illegitimate and without a name, at least, that its real name was unknown to the grand jury, and hence it was so alleged in the indictment. The testimony on this issue was sufficient to meet the requirements of the law that, where it is alleged that the name of the person injured was unknown, it devolves upon the State to prove such allegation. Cameron v. State, supra; Reed v. State, 16 Ark. 499; State v. Seely, 30 Ark. 162-163; Edmonds v. State, 34 Ark. 732; Floyd v. State, 80 Ark. 94-97.
3. The court did not err in permitting the transcript of the testimony of Cora Critz at a former trial of the cause to he read in evidence. The official court stenographer duly authenticated the testimony as that of Cora Critz, taken down in short hand at the former trial after the witness was duly sworn and when appellant and his counsel were present and had an opportunity to cross-examine the witness. He stated that the testimony so taken was correctly transcribed. A witness, who was personally well acquainted with Cora Critz, testified that, after the death of her son, she stated that she was going to Texas. She left and had not returned, so far as the witness knew. Two subpoenas for Cora Critz had been issued and were returned non est. The returns recited that the sheriff had made diligent search for the witness and had been unable to find her in Pulaski County, and that her whereabouts were unknown. The proper foundation was laid for the introduction of the secondary evidence and the ruling of the court in admitting it was correct. Hurley v. State, 29 Ark. 17; Kelley v. State, 133 Ark. 261; Shackleford v. State, 33 Ark. 539; McNamara v. State, 60 Ark. 400; Vaughan v. State, 58 Ark. 352; Wimberly v. State, 90 Ark. 514; Poe v. State, 95 Ark. 172.
4. Several veniremen, upon their voir dire, stated that they would not return a verdict on circumstantial evidence and assess the death penalty, but would return a verdict on such evidence and assess life imprisonment. The veniremen, after so stating, were at first excused but were afterwards recalled upon the prosecuting attorney ■announcing that he would waive the infliction of the death penalty. Thereupon, the court held such veniremen to be qualified jurors, to which ruling the appellant excepted and exhausted a peremptory challenge on these veniremen.
The Legislature of 1915 passed an act authorizing the jury, in the event they found a defendant guilty of a capital offense, to assess the punishment at either death, or life imprisonment. See Bell v. State, 120 Ark. 530; Kelley v. State, 133 Ark. 261, 202 S. W. 49. The irregularity in this manner of selecting a jury, and the error of the court in permitting it, could not, from any viewpoint, be prejudicial to the rights of appellant. On the contrary, its effect was to insure appellant against the death penalty under the indictment when, but for such waiver, the jury would have been authorized to inflict upon him such punishment. The waiver by the prosecuting attorney, and the selection of jurors to try appellant who did not believe in assessing the death penalty under an indictment which authorized such penalty to be assessed, but inured to the benefit of the appellant. For although the undisputed evidence proved that, if appellant was guilty at all, he was guilty of murder in the first degree, nevertheless, the jury under the State’s waiver, even though they found the appellant guilty, could not return a verdict that would call for the imposition of the death penalty. The ruling of the court was tantamount to assuring appellant a lighter punishment than otherwise might have been imposed upon him under the indictment and the undisputed evidence as to the degree of the homicide. Of such ruling he can not be heard to complain. Glenn v. State, 71 Ark. 86; Bruce v. State, 68 Ark. 310, and other cases cited in State’s brief.
5. Likewise, there was no prejudicial, and therefore no reversible error in the court instructing the jury that “under this indictment, it is competent, if the proof justified, to convict the defendant of murder in the first degree, or of murder in the second degree.” The proof warranted the jury in returning a verdict only for murder in the first degree, and under the State’s waiver, they were authorized to fix his punishment at life imprisonment . The verdict shows that the jury believed that the appellant was guilty, and appellant is not in an attitude to complain because the jury extended to him clemency and found him guilty of a lower degree than the undisputed evidence warranted, and imposed a lighter penalty than ■should have been inflicted upon the return of a proper verdict.
Where the indictment charges murder in the first degree, and the undisputed evidence shows that the accused, if guilty at all is guilty of murder in the first degree, then it is not error for the court to refuse to give instructions authorizing the jury to return a verdict of guilty of one of the lower degrees of homicide. King v. State, 117 Ark. 82-88; Dewein v. State, 114 Ark. 472-484-485; Thompson v. State, 88 Ark. 448; Ringer v. State, 74 Ark. 262; Allison v. State, 74 Ark. 444-453; Jones v. State, 52 Ark. 345; Fagg v. State, 50 Ark. 506; Allen v. State, 37 Ark. 435; Curtis v. State, 36 Ark. 284. But, on the other hand, it is not prejudicial error for the court to give an instruction on the lower degree in such case, because the error is one that results to the defendant’s advantage. While it is error to give an abstract instruction, yet, under the settled rule of this court, if it affirmatively appears that the rights of the accused are not prejudiced thereby, the judgment will not be reversed for such error. Autrey v. State, 113 Ark. 347; 14 R. C. L., p. 783, Sec. 49.
Such is the case here. The verdict shows that the jury believed the defendant guilty, and they so found. Had the instructions on the lower grades of homicide not been given, the jury, finding the defendant guilty, must have returned their verdict for murder in the first degree. Such verdict, under the State’s waiver, would have called for life imprisonment. The instructions on the lower grades of homicide, therefore, were in the appellant’s favor, and he can not complain of the error of the court in giving them. The exact point is ruled by the cases of Vasser v. State, 75 Ark. 373-381; Burnett v. State, 80 Ark. 225. See also Paxton v. State, 108 Ark. 316-320; Glenn v. State, 71 Ark. 86; McGough v. State, 119 Ark. 57.
6. Errors are predicated upon certain rulings of the court in remarks made while the testimony was being introduced. We have carefully examined these, and find no reversible error in the court’s rulings, and do not deem these assignments of error of sufficient importance to discuss.
7. Since we have concluded that the evidence was sufficient to sustain a verdict for murder in the first degree, and the defendant if guilty at all, was guilty of only that degree of murder, it follows that the punishment assessed by the jury was not excessive. There are no reversible errors in the record, and the judgment is therefore affirmed.