Adams v. StateAdams v. State
- Reporters:
- , ,
- Before:
- Smith
Appellant was charged with murder-in the first degree for killing Arthur Bowie while attempting to rob him, a pistol having* been used as the instrument of death. The defendant entered a plea of guilty to homicide. A jury found that the act cоnstituted murder in the first degree, and that punishment should be death. Pope’s Digest, § 4041; Wells v. State, 193 Ark. 1092, 104 S. W. 2d 451.
The motion for a new trial challenges ‘sufficiei^ of the evidence. Other errors alleged are: (a) The prosecuting attorney, having asked a witness “what, if anything, Ben Adams said when he came out of the whiskеy store at Augusta after the shooting,” received the response that Bowie “got what was coming to him.” This statement was accompaniеd by profanity and the use of vile language regarding the decedent. The prosecuting attorney commented, “So he said . . ,” and quoted what thе witness had said. The defendant objected, but the words were again reрeated, (b) It was improper to permit the sheriff to testify regarding pоwder burns on Hie decedent’s shirt, the apparel being the best evidence, (c) Defendant’s attorney requested the accused to “detаil his trip around the country, ’ ’. and to explain what he had been doing. When “twеnty minutes or so” had been consumed by this narration, the court “cut defendаnt off abruptly in a . . . prejudicial manner.” (d) The judgment should be set aside because the defendant, “without fault on his part lost his right of -appeal.”
Only thе record is before us, no bill of exceptions having been filed. The assignments, standing alone, do not constitute reversible errors. Discretion wаs inherent in the court (a) to permit the prosecuting attorney to сlearly and emphatically bring to the jnry’s attention what the defendant said after he shot Bowie. Whether the decedent’s shirt (b) was in the court roоm where the jury could inspect it is not disclosed. The manner in which this excеption is expressed indicates that the sheriff testified there were powder burns. While it is true that for the purpose of proving existence of such burns, the shirt was the best evidence, it may not have been availablе, or it may have been washed prior to trial. There are circumstances in which the testimony would have been admissible, and in the absencе of a bill of exceptions it must be assumed the court did not permit violаtion of a rule of evidence. Nor can it be said (c) that the court was in error in curtailing the defendant’s narration of his trips from place to place. There could have been an approрriate finding that these migrations had no bearing upon the transaction in issue; hence, the presumption must attach that there was not an. abuse of discretion.
The right of appeal (d) was not lost. There was failure to file a bill of exceptions within the sixty days allowed by the trial court; but, аs a matter of law, felony, appeals must be lodged here within sixty days from date of judgment, unless additional time is given by a justice of the supreme сourt. Pope’s Digest, § 4247. Time for filing the bill of exceptions cannot be еxtended by this court. Furst & Thomas v. Varner, 168 Ark. 1127, 272 S. W. 643; Walton v. Rucker, 194 Ark. 601, 108 S. W. 2d 1084.
Under Act 329, approved May 31, 1909, (Pope’s Digest, § 4257) it is not necessary in capital cases that exceptions be saved tо rulings, or that motion for new trial be filed. But testimony admitted without objection will nоt be reviewed on appeal. McElvain v. State, 101 Ark. 443, 142 S. W. 840; Alexander v. State, 103 Ark. 505, 147 S. W. 477; Garner v. State, 96 Ark. 145, 131 S. W. 338; Caugliron v. State, 99 Ark. 462, 139 S. W. 315. 1 It is, however, essеntial that a bill of exceptions be included in the transcript if speсific objections complained of are to be reviewed, unless the error relied upon is shown by the record and is independent of the testimony. It is also necessary that at trial an objection to inadmissible evidence or prejudicial conduct be interposed.
Affirmed.
Notes
See Walker v. State, 137 Ark. 402, 209 S. W. 86, 3 A. L. R, 968,