*1 Accordingly judgment against W. A. on O’Neal appeal cross-appeal judg- direct affirmed, judgment ment favor Tom O’Neal is reversed and against will be entered here him.
Smith dissent. JJ., Mehaeey,
Bailey v. State. 2dW. May Opinion delivered Ivy, Bruce Reid <&Evrard and W. Leon Smith, appellant. Jno, Attorney Holt,
Jack Streepey, General and P. Attorney appellee. Assistant General, charged cir- J. Mehaeey, Mississippi district chasawha of the Chi cuit in the first murder the crime with Arkansas, *2 September on killing degree Kitsmiller of P. C. for the of murder crime the and convicted was tried punishment ten degree, fixed at and his in the second prosecuted appeal penitentiary. years An in the state judgment. to reverse said appellant killing for which occurred The was tried September day 1941. On that held, there was on Blytheville, city annual National Arkansas, the the Many people Picking this meet- attended Contest. Cotton killing ing. known Mid- occurred what is as the The approximately night half miles one a which is and Inn, leaving Blytheville highway No. 61. on U. S. north necessary picking was contest, of the cotton it the scene way Midnight pass appellant home Inn on his the way appel- county, Missouri. On his home in Pemiscot Midnight stopped The Inn and went inside. at the lant operators the time inn absent at were and owners grounds operating killing a stand and were selling Picking and sand- drinks Contest, at Cotton Eloise G-rizzelland Edith inn, There at the were, wiches. appellant Kitsmiller before not know The did Parks. Midnight appellant the time entered time. this Inn there At part except one in two no the cafe was appellant a bottle of and beer, waitresses. The ordered girl. him at the counter Parks was served portion appellant got up drinking a After the beer around the counter, from the stool at went end going As he around room. was and into the rest counter passed man did whom he end of the counter he Kitsmiller. When learned that this was He later know. opened appellant room the G-rizzell the door the rest lavatory. appellant standing at the was woman place operated in Holland, Mis- of business owned and souri. appellant alleged
It is who had enemies sought take times his several and that for that life, went armed at all times. There is reason he some conflict appellant as what said between the evidence and Grizzell woman when he went into room, the rest slapped appellant, 'but the woman Grizzell and about ap- this time Kitsmiller came into rest room, struck pellant knocking in the back of the him across head, room into rest and the bathtub.' appellant apologized
There is evidence that the both woman to the Grizzell and and Kitsmiller shook hands shortly building deceased, with thereafter left the Appellant seat deceased took his the counter. at shortly thereafter returned as he the door entered and, pistol brandished a that shot cafe, stated, effect, charge, taking he was walked over to Kitsmiller him and then leaned over him and fired shots. two more deputy prosecuting
Information was filed at- torney charging murder de- with first *3 preliminary gree. municipal hearing No was had filed, court where the information was but the circuit Blytheville court appellant on October 27, 1941, convened charge arraigned of in the on murder was a by degree prosecuting at- first on information filed torney in circuit court. appellant filed in
Thereafter, the circuit court alleged a motion for a continuance which he in sub- opportunity had not stance he had reasonable be- tween the date which Kitsmiller was killed and the date set for his in which to interview wit- material any proper investigation prep- make nesses nor to in properly prepare aration of his nor defense, to for his defense. quite long,
The motion for is continuance after hearing, overruled the court. overruling appellant’s The court did not err in mo- many tion for a continuance. This court has held times question of a continuance in a criminal case within discretion the court, the sound of and its action except appeal, will not disturbed on be where there is clear abuse which discretion, amounts' a denial justice. v. State, 192 Ark. 1; Smith 96 967, S. W. Adams v. 176 State, 916, Ark. 5 S. W. 2d v. 946; Martin 194 State, 711, Ark. W. 2d
379 185 Ark. 48 W. State, 539, In of Banks v. S. the case “The first court said: 2d assignment 82 A. L. R. 847, 1051, refusing court erred in of error is that the granting grant or a continuance. The defendant legal refusing the sound discre of continuance within where will not interfere tion of the and this court court, no abuse of discretion.” there has been following cases: Golden rule, court cited 720; 34 19 Ark. v. Ark. State, 590; State, v. Edmonds v. 607; Goddard State, Jackson v. S. W. State, v. 476; 95 S. W. Morris 213; S. W. Bruder v. 250; 244 W. Sease v. supra. Adams
After motion for a con- had filed his he filed a for a venue. tinuance, 10 of 2 of Section art. the Constitution the state providing for a Arkansas, after which crime continues as committed, shall have been changed any “provided follows: that the venue judicial district in the indict- which such accused, ment is found, prescribed and to law; manner as iioav is, be informed the nature and cause of the accusation copy against thereof; and to have a be con- him, against compul- have him; with the witnesses fronted obtaining sory process his favor witnesses *4 by himself and counsel.” be heard his that Pope’s Digest provides any Section 3917 circuit court cause removed to the may criminal be shall in the manner appear, whenever it county another inhabitants that the minds the provided, hereinafter are preju- the so pending which cause is county of the and impartial that a fair the defendant diced against ap- hoAV then provided had therein. It is be cannot made. of venue be for shall plication application 3918 reads as follows: “The Section by peti- of removal for such order shall the defendant be setting on account of re- forth the facts wdiich the tion requested; allegations the truth of moval petition supported by such two shall be the affidavits of qualified electors, who are actual resi- to dents any way. and not related the defendant application Reasonable notice shall be given attorney hear for state. The court shall considering' the set forth and, after facts accompanying and the it and affidavits may any be other or counter affidavits affidavits any produced by hearing filed and after either witnesses party, petition according grant or shall either refuse by alleged in it and established to the truth the facts the evidence.” provides expressly
The Constitution venue may changed any judicial dis- applica- trict which the indictment is found tion of “in accused such manner as now is or prescribed by right only law.” The court has'a receive counter affidavits and n considerthem, but he' produced right party, to hear the witnesses either (cid:127) grant petition according and shall either refuse alleged the truth facts it and established the evidence. provided having
The Constitution provided by in manner venue be had law, was perfectly proper to consider not but to affidavits, counter hear the witnesses offered. court is authorized to determine the truth of the mat- certainly qualified pass ap- he is better ter, plication any venue than is one else. ‘‘ recently
This court said: This court has ruled that, qualify in order for an affiant person as a cognizant he prejudice under the must be statute, existing throughout merely the whole and not portions thereof.” Hedden v. State, 179 Ark. following 119. The S. W. 2d are cases cited in of the above rule: Dewein v. Speer
W. 198S. W. 113; Wil liams v. 386;W. Mills v. Avey See, v. State, also, *5 Ark. 233 149 S. W. 765. contemplates subscribing wit
“The statute fairly concerning information accurate nesses shall have of of the inhabitants the entire of mind the state supra. Speer case v. This State, dfendant.” toward uniformly held that unless the that it has been also holds overruling mo a discretion in its trial court has abused ap the order is conclusive venue, of tion peal. following support cases are cited: rule To this Ford Bryant 295; W. v. v. S. 239, 129 McElroy v. S. W. Dame 8. See, also, 301, 140
89 W. prejudice impossible rendering im- “Where local an partial trial is made a cause in venue its is established to the case existence satisfaction opinion holding court, consensus of presumption of law is that a de- criminal cases that the impartial get a fair fendant can offense was and that order committed,
which the presumption must show the defendant overcome clearly venue a Indeed, cannot be done. that this wrong prosecution must deemed a in a criminal justice public the accused the require the necessities unless sustaining justified an and before a court is it, prejudice therefor on account affirmatively appear it must inhabitants feeling prejudice prevailing that there is such reasoxxably community prevent certain as will impartial R. L. 815. fair and trial.” O. to some iix
The called attention cases has jurisdictions. those states the some repeatedly xxo but this court has held that discretion, judge, passing on this does motion, have discre- tioxi and is an unless there abuse discretion, judgment of the trial court will not be disturbed.
n very carefully haveWe examined all evidence reached the conclusioxxthat and have the tiral court did admitting testimony. rejecting not err in There is ample finding evidexxceto verdict and court. judgment affirmed.
382 (concurring).
Smith, J., I in the affirmance concur judgment my of opinion, in in case, for the that, reason judge finding, in from trial was Warranted they supporting the oral examination of the that affiants, sufficiently public were not ing' advised as to state feel- against appellant them constitute meaning within the of the law.
In the case of State, 1079, Hedden v. 20 S. W. change it is “In 119, said: order to of venue obtain a county, by charged any to another one with crime in cir require cuit court in statutes that it must state, appear by petition sup made of the defendant, ported by persons, of two affidavits minds of the inhabitants of the in which cause pending prejudiced against are so him that he cannot impartial obtain fair and trial therein. This qualify has ruled in order an affiant as a that, person cognizant credible of under the he must be statute, prejudice existing throughout .the whole merely portions and not thereof. Dewein v. Speer 302, 179 W. 346; 113;W. Williams v. 258 S. W. Mills v. 671.” I judge
But do not concur in the view that the trial right had to find whether could obtain a fair where he had been indicted. majority quote The the excellent rule stated chapter p. R. L.,C. Venue, § 35, 815. The General Assem- bly might adopt adoption pre- well this rule. Its would right vent an abuse of the constitutional to a By pro- § venue. of art. the Constitution it is vided that an accused shall be entitled to a “upon application venue man- accused, such prescribed by ner as now is, or law.” Gen- be, Assembly might, adopt appears eral therefore, what general jurisdictions regard be the rule in other. change of venue in a criminal case, is, it has the power to do so.
By Pope’s Digest, provided § 14342, it is that “Here- changed after the venue civil actions shall not be n unlessthe to whom court or necessary finds that the same is made venue impartial of the cause.” fair and to obtain a power adopt Assembly The General majority opinion .eases; but the rule in criminal same unnecessary legislative if are to action we renders this quoted adopt in the ma- L., stated 27 B. C. the rule approved. apparently jority opinion, But which is *7 and it now exists has been declared the as law, under may many court, the trial criminal cases, cases, to be pass credibility persons upon by only who, the the petition change support the for a of venue. affidavit, case of v. 466, In the Ward prose the resided where the upon denying petition pending, the for and cution was change that “he knew the defendant of venue stated impartial get and trial in Lee a fair and could persons permit into court two to come he not that would contrary.” recklessly was held to to the petition being This and swear proper In that form. case be error, attorney proposed prosecuting* that the affi show persons; court denied the not credible but the ants were hearing petition Had the evidence without this evidence. finding affiants were made heard, been persons, have the motion could and should not credible upon finding. denied been Strong v.
It was said in the case credibility Ann. that while Cas. 536, 14 109 S. W. falsity investigated, truth or be the affiants inquired the case into; cannot of their evidence be it 179 S. W. was of Dewein supported petition the affidavits was that if the said change persons of venue an order for a of two credible made. must ‘‘ ’’ persons within cited defines
The case last fully meaning discusses and de- statute, of our -the passing duty judges the discretion fines upon petitions fully case so dis- of venue. The quote question exten- poses from it rather that I of the sively. It there said:
“In a criminal when a case, supporting of venue and the affidavits are in the form prescribed by only inquiry upon statute, which the qualifications trial court supporting enter is toas they and if witnesses; found that come ‘ definition within the as statute, qualified who are actual-residents of the electors, any way,’ and not related to the defendant in the court has no further discretion and the order for a may, venue must be made. The court however, order pass upon credibility supporting witnesses, have them called before the court and examined. That passing upon ques- the exclusive method of pursued tion, but is familiar one more often in this .jurisdiction. may inquire The court into the means knowledge probability of the witness and as to the petitioner being impartial able obtain a fair and purpose reaching but for the trial, a conclusion credibility supporting witnesses. . . . ‘reputable’ It is true that the word is laid down lexicographers synonymous as with the word ‘credible,’ *8 synonymous but the two are words not in the fullest synonymous sense and can not be treated as when con- interpreting subject sidered in our statute on the person may good A repute venue. be of community yet, by in which he lives, reason of a reckless inaccurate oath, based insufficient knowledge, person fail to a credible within the mean- ing person A of the statute. credible is one who has the capacity testify given subject worthy on a and knowledge one subject belief; who lacks on under investigation person accepted is not a to be as ’’ worthy particular inquiry. belief supra,
In majority addition to the Dewein case, opinion cites other all of cases, which are to the same contrary and no effect, case to the In cited. passing upon petition words, in for of venue, proper inquiry the limit of the form, which the trial may credibility court support- make is that of the of the they ing affiants. If are found not to be credible, petition may they and should be denied; but if are found to be credible tbe court is without discretion and must changing make an order the venue. majority opinion, addition to the cases cited in the just opinion
all of which the rule stated, Spurgeon case S. W. practice proper cites a number of others. The in such again extensively opinion cases is there reviewed, and the quotes approvingly opinion from the the case White head v. 390, 181 as “In follows : (Whitehead supra) the last case cited above v. State, court reviews the authorities and states the rule fol as judicial lows: ‘The trial court exercises a discretion passing upon credibility but affiants, its question. discretion limited to When the properly supported, of venue is made and granting prayer court has no discretion about thereof, opinion whatever the of the court be as to its truth provides fulness. The statute no method which the credibility determine the but affiants, question leaves to the court. A number of how cases, approved practice calling have ever, the affiants examining them as to the source and extent of their purpose information ascertaining whether or falsely they recklessly have sworn sufficient without information as to'the state of mind of the inhabitants to as the accused. But the cases also hold that subject contemplate statute does not falsity inquired truth or of the affidavits shall be into, question and that for the determination per court is whether or not the are affiants inquiry and that sons, all must be confined to that ” question.’ *9 Scores of all to the eases, same are cited in effect, Digest chapter Reports, West’s of the Arkansas Yenue, supererogation §§ to it would be a work of to cite them. holding
I, concur in the therefore, that no error was overruling committed in for a judge reason venue, but that the trial finding supporting warranted in affiants were meaning as' the law, tíre within not credible determi- limited to the discretion fact. nation of this ex- here in the views concurs
The Chief Justice pressed.
Kurry Frost. W. 4-6747 May Opinion delivered