72 Ark. 145 | Ark. | 1904
(after stating the facts). This is an appeal from a judgment convicting the defendant of murder in the first degree and sentencing him to be hung. The crime was committed in Clay county, but the trial was had in Greene county on a change of venue. The first point made for a reversal of the -judgment is based on the contention that the Greene circuit court had no jurisdiction, for the reason that the transcript of the record of the Clay circuit court for the Eastern District was never filed in the Greene circuit court. But the transcript of the record on file here from the Greene circuit court is complete, and shows a complete record of the proceedings in the case both in the Clay and Greene circuit courts. The certificate of the clerk of the Greene circuit court attached to this record shows that the transcript of the Clay circuit court, which he has copied in the record, is on file in his office. It is true that there is no file mark copied in the record showing the exact date upon which the transcript from the Clay circuit court was filed. But while the indorsement of the clerk upon a transcript that it has been filed is evidence of that fact, yet the transcript may have been filed, and no indorsement made, or the indorsement may have been made, and not copied in the record sent to this court. Whenever the transcript is duly deposited with the clerk in his office to be kept on file, it has been filed within the meaning of the law. 8 Enc. Plead. & Prac. 923. Now, the clerk should, we admit, have made this indorsement as a matter of evidence, arid should have copied it into the transcript. But it does not follow because he did not do so that the transcript was not filed; on the contrary, we think the whole record, taken together, indicates that it was filed in due time. The record here shows that the order for a change of venue was made by the Clay circuit court on the 25th day of August, 1903, and the order among other matters directs that the clerk of that court “forthwith make out a full and complete transcript of all records,” etc., “and immediately transmit the same, duly certified under seal of the court, to the clerk of the Greene circuit court.” The certificate of the clerk of the Clay circuit court, copied in the record here, shows that this transcript was made and certified on the 28th day of August, 1903. The record of the trial in the Greene circuit court shows that the case had been placed on the docket of that court for trial, and was numbered 189, and that the trial took place on September 4, 1903. The defendant was present in person, as well as represented by able counsel. Both parties announced ready for trial. The charg'e was stubbornly contested, and after the conviction a motion for new trial was filed, in which many grounds were alleged why the judgment should be set aside. But neither before nor after the trial was any objection made on account of the transcript not being filed in time. The first time such an objection was made was in the brief of counsel for appellant filed in this court. Now, the jurisdiction of the Greene circuit court depended mainly upon the order made by the Clay circuit court for the Eastern District ordering the venue changed to Greene count}'-. It is beyond doubt that such order was made, and made in due form, on the application of the defendant. The jurisdiction was perfected by the filing of the transcript of the record in the Greene circuit court, though, as before stated, the exact date of the filing does not appear. But we think it is unreasonable to believe that thiá case would have been placed on the docket of the Greene circuit court for trial, or that both parties would have consented to trial, or that the court would have permitted a trial, had no transcript of the indictment and order for change of venue been in that court.
When we consider the whole record, and the fact that no objection was made below, we feel convinced that the officers did their duty in this respect, and that the transcript was filed in due time. In the case of Burris v. State, 38 Ark. 221, the court calls attention to a defect of this kind, but it will be noticed that the judgment was not reversed on that account. For the reasons stated, the contention of appellant on this point must be overruled.
The second contention is that the judgment should be reversed because the defendant was put on his trial without a formal arraignment and plea of not guilty. There are several decisions that support that contention in the earlier reports of this court, but those cases have been overturned by later decisions. The court said in a recent case that the record “shows that the appellant was represented by competent counsel, that he voluntarily announced himself ready for trial, and that the case was treated as at issue upon a plea of not guilty. The defendant was accorded every right that he could have availed himself of under the most formal record entry of his plea.” The court thereupon held that there was no prejudice. This decision was, we think, clearly correct, and applies here. No prejudice having resulted from the failure to make a formal arraignment and plea, there is, under our statute, no ground for reversing the judgment on account of the lack of such formalities. Hayden v. State, 55 Ark. 342, 18 S. W. 239.
The next assignment of error relates to the qualification of certain talesmen summoned to serve on the jury. Several of them said that they had formed opinions from reading the account of the crime in a newspaper, but that they could and would disregard these opinions, and try the case on the evidence alone. We find nothing in the record here that would justify us in overturning the finding of the presiding judge that these men were competent to serve on the jury. It is true that the answers of one of them, S. J. Troxell, are not quite clear to us. In his answer to one of the questions propounded he stated that the opinion he had formed would have no effect on his verdict, but in other answers to other questions he seems to say that if the evidence was conflicting and close, he would give some weight to the rumors that he had heard. We do not think that he meant this, but the examination was closed without giving him a chance to fully explain himself. But we need not discuss the question further for the reason that none of these talesmen served on the jury, and the only effect of holding either of them competent was to cause the defendant to use one of the peremptory challenges, which the statute permits. But the record shows that before the jury was complete the presiding judge offered to allow the defendant one more peremptory challenge than the statute allows in order, as he said, “to cure any possible error in passing on qualifications of jurors.” This offer was made after the defendant had exhausted all his peremptory challenges, and was accepted by the defendant, who thereupon challenged another juror. So far as the record shows, this action of the court placed the defendant in the same position he would have been had talesman Troxell been excused for cause, and cured any possible error made by the court in holding that he was competent. It was just the same as if the court had said: “I have changed my opinion, and now hold that the challenge for cause made by the defendant should be sustained, and will for that reason allow an extra challenge.”
Before the jury was complete, the court permitted the prosecuting attorney to peremptorily challenge J. P. Cathey after he had been examined and taken on the jury, but the reason for this was that the juror had informed the court that he had conscientious scruples against capital punishment. The action of the court was therefore not an arbitrary act, but based on reasons which justified it, and no error was committed. Allen v. State, 70 Ark. 337, 68 S. W. 28.
It is next insisted that the court erred in admitting the confession of the defendant made to the officers who arrested him. In the case of Hardin v. State, 66 Ark. 61, 48 S. W. 904, we said: “When a prisoner is merely exhorted to tell the truth, or when he is only admonished that he had better tell the truth, and no hope is held out that the punishment will in consequence be mitigatedj any confession thereupon made will be admissible.” Now, it must be remembered that at the time the defendant was arrested he had already made one confession to the effect that on the day that Dortch was killed two armed men wearing masks on their faces had compelled him to pilot them through the woods to where Dortch lived, and then had told him to leave, threatening to kill him if he ever told about it. This strange story led to his arrest, and when he was arrested the officers very naturally asked him who those men were. At first, he hesitated to speak about the matter, but, on the question being repeated, he said that it was true that two men had forced him to take them to Dortch’s place on the day he was killed. The officers then very truthfully told him 'that it would help him out if he would give the names of these men. He thereupon told them that if they would protect him he would tell them something, and on their telling him that they would do so he confessed that he shot Dortch, but said that he did it under orders from two masked men that had him in custody. The officers did not ask him who killed Dortch, but only who the men were that went with him over to where Dortch lived. He then told them that he would tell them something “if they would stay with him,” and they promised to do so. This, as the evidence shows, was not a promise that the punishment would be mitigated, but a promise that they would protect him against a mob or violence of that kind. The evidence was, we think, amply sufficient to support the finding that the confession was voluntary.
The only remaining questions relate to the instructions given by the court to the jury. The court refused to instruct the jury that, if the defendant shot Dortch under compulsion by third parties to save his own life, they should acquit, but, on the contrary, told them that, though one may lawfully kill an assailant, if it be necessary to save his own life, he cannot lawfully slay an innocent third person, even to save his own life, but ought to die himself rather than take the life of an innocent person. The question presented by the exception to this ruling has been discussed by text writers more often than by the courts. But we feel very certain that unlawful compulsion of the kind set up as a defense in this case is not a sufficient justification for taking the life of an innocent person. Sand. & H. Dig. § 1448; Arp v. State, 97 Ala. 5; 19 L. R. A. 359; 38 Am. St. Rep. 137; Reg. v. Tyler, 8 Car. & P. 616; Reg. v. Dudley, 14 Q. B. Div. 273; 4 Blackstone, p. 30.
Whether, under some circumstances, compulsion of that kind might go to reduce the grade of the offense and in mitigation of the punishment, we need not stop to inquire, for, if we should concede that this was so, the evidence here does not establish any such compulsion. The only evidence to prove compulsion was a confession made by defendant. While all parts of the confession must be considered, yet the jury were not required to believe such portions of it as seemed to them unreasonable and improbable. And, though they found that Brewer killed Dortch, they no doubt rejected the improbable story that he did so under compulsion by armed men, who walked through the woods with masks on their faces, stopping occasionally to rub on the bottom of their shoes a red looking liquid which they kept in a bottle. This part of the confession was certainly uncorroborated, and was first concocted and told by Brewer to one of his friends under the belief that blood hounds were about to be put on the trail. It was, no doubt, an effort on his part to put forth some plausible excuse that might shield him in the event he was run down and arrested.
But if we take this confession as literally true, it does not show that defendant had no other option except to lose his own life or take that of Dortch. He said that two men armed with a shotgun and pistol captured him and compelled him to pilot them to the Dortch place, and then gave him one of the shotguns, and ordered him to killi Dortch, but he does not show why, after getting possession of the gun, he did not turn upon them and defend himself. The tracks where defendant lay in wait showed that only one man was there, and the circumstances indicated that, besides Dortch, there was present at the time he was killed only the man who 'fired the shot. A compulsion that could reduce or mitigate such a crime must have been more than a fear of future harm; it should appear that the danger of resisting such a force was immediate and impending. The confession does not locate the position of the masked men at the time the shot was fired, or show that there was no alternative for the defendant except to kill Dortch or lose his own life. For this reason, we think that the presiding judge was fully justified in telling the jury that under these circumstances compulsion was no justification or excuse for the crime charged.
It is said that in this instruction the jury were not told that to make out the offense of murder in the first degree the killing must have been done with malice aforethought and premeditation, but that is of no moment, for the jury were in other instructions told that these elements were necessary to justify a conviction for that crime, and it was unnecessary to repeat it in each separate paragraph of the charge.
Besides the overwhelming and uncontroverted proof showed that Dortch was assassinated by some one who lay in ambush for him near a pathway along which he was accustomed to go to and from his field. The question in the trial below then was not so much whether the killing was done with malice aforethought, premeditation and deliberation, for there was no room for dispute about that, but whether the defendant was the person who committed the deed.
On the whole case, we find no prejudicial error, and are convinced that the judgment was right. It is therefore affirmed.
