Casey v. State, 37 Ark. 67

Casey v. State

37 Ark. 67 | Ark. | 1881

Harrison,'J.

The motion in arrest of judgment was property overruled.

The guilt of Helphrey is averred, and the facts and the circumstances of the murder are stated in the indictment with the same directness and certainty required to charge him with the commission of it, if he alone had been concerned in the perpetration of it; and it charges with like directness and certainty, the appellant and Holland with having, before the commission of the crimé, feloniously and with malice aforethought incited, procured, aided, counseled, hired and commanded him to do and commit it, and nothing more ■was or could be necessary to charge them as accessories. 2 Bish. Orim. Proced., Secs. 7 — 11.

Dtseretioil of ^Voting an3_ ^'s °p.69)' It was the province of the Court to determine in the •ercise of a sound discretion, whether there existed such a .state of mind on the part of the persons called as jurors in the case and challenged by the appellant for actual bias, that they could not, if chosen, give him a fair and impartial trial, and disqualified them as jurors, and unless there had been an abuse of its discretion, which we cannot say there was, we have no authority to overrule its decision. Gantt’s Digest Sec. 1910; Benton v. The State 30 Ark. 328; Wright v. The State, MS. Opinion.

a. wn^Aocom-

Helphrey was a competent witness for the State. It isa well settled rule of the common law that an accomplice who is not indicted, or is separately indicted, and though he 'been convicted, if sentence has not been passed upon him, is ■a eompetentwitness. 1 Bish. Crim. Pro., Secs. 1166, 1167 ; 1 Whar. Crim. Law, 783; 1 Green Ev. Sec., 379. And it is expressly provided by section 2479, Gantt’s Digest, “ that in all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor, but the testimony .given by such witness shall in no' instance be used against him in any criminal prosecution for the same offense.” The State v. Quarles 13, Ark. 307; Cossart v. The State 14, Ark., 539; Pleasant v. The State 15, Ark. 649.

And we can see no reason why he should not have been permitted to state when testifying, that he had previously made a confession of the crime to the Prosecuting Attorney, in which he had told him of the appellant’s, and Holland’s complicity in it.

3 _. A^ce“Cof counsel. The advice given him by his counsel he could not be compelled to disclose. It was within the privilege of confidens tial communications. Bobo v. Bryson, 21 Ark. 387; Bigler v. Reyher, 43; Ind. 112; Hemenway v. Smith et al, 28 Verm., 701; 1 Green Ev., Sec. 240 a.

Mr. Wharton says: “The question whether a client can be compelled to disclose his confidential communications to-his legal adviser draws peculiar interest from the Statutes enabling parties to be called as witnesses bjr their opponents,” and very justly remarks : “ It is obvious the guard against the disclosure of such communications by counsel would be a mockery, if the client could be compelled to disclose that as to which counsel’s lips are sealed. It would be absurd to protect, by solemn sanctions, professional communications when the lawyer is examined, and to leave them unprotected at the examination of the client.” 1 Whart. on Ev., Sec. 583.

And he was very properly told by the Court that he was: not required to disclose any information he had receiyed from his counsel.

4. Evidence : Declaration of accomplice. The letter written to Casey as the evidence conduced to-prove, by Holland, was admissible against him only as the declaration or act of an accomplice, upon the principle that where several are engaged together in the commission of an unlawful act, the declaration or act of one in reference to- or in pursuance of the common object is in contemplation of law, the declaration or act of all of them, .But before it was introduced, other evidence than that of Helphrey implicating Holland, should have been produced.

The testimony of Helphrey was not sufficient for that purpose. “A conviction can not be had,” the statute says, “upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows that the offense was ■committed and the circumstances thereof.” Section 1932 Gantt's Digest.

Without evidence, therefore, connecting Holland with the murder, corroborative of that of Iielphrey, the letter, however irrefragable in itself as evidence of his complicity, was of no higher grade than hearsay. And, as there was no such proof made, either before or after its introduction, it was not competent evidence.

wit - e0^e£e compel Though there is much conflict in the authorities, it is tied in this State by the decision in Ooilier v. The State, 20 Ark., 36, that the wife of one indicted with the defendant on trial, is not a competent witness for the latter; which decision we adhere to.

evidence : neeiaratí OES Of Though the declarations of Holland, if he had proved to have been connected with the crime, might have ° been used against him, they were not competent for the appellant. The evidence of the witness Melton, offered by the -appellant, as to what Holland may have told him, on the day of the murder, about having no whisky, was, therefore, properly excluded.

i. wracontra-rial mat- ^ mate-The first of the instructions objected to by the appellant, the twenty-second in the series of those given at the instance of the State, so far as it related to the tradiction of the testimony of Helphrey, was hot correct, if there had been evidence on which to base it; for if Helphrey was contradicted by any other witness, though in an immaterial matter, that is, as we understand the meaning of the instruction, in a matter not tending to connect the defendant with the killing, such contradiction might have, tended to weaken his testimony, and to impair his credit with the jury ; but as there was,'in fact, no contradiction of it in any particular, the appellant was not in any way prejudiced by the instruction.

To the other, the twenty-third, we are unable to see any objection, and none has been insisted upon or suggested here.

8.instrtjg-Repeating The first, second, third and sixth asked by the defendant were substantially the same as the twenty-third of those already given for the State ; the fourth the same as the twenty-sixth; the fifth was contained in the, fourteenth, fifteenth,. seventeenth and eighteenth; and the eighth in the fourteenth ;; and as they would have tended to unnecessary prolixity in the charge, and could have served no good purpose, they were properly refused. .

The jury were told by the Court, in the twenty-first instruction given, that they could not convict the defendant, upon the testimony of Iielphrey, unless it was corroborated by other evidence tending to connect the defendant with the commission of the murder, and that the corroboration was-not sufficient if it merely showed that it was committed, and the circumstance of it, the Court so in effect telling them that the law impeached him, and they must have known, from the atrocity of the crime he had committed that he was not a creditable witness. It could not go further and tell them that some particular motive or inducement might-have influenced his testimony, and' as to which there was no. evidence ; and if the law be as stated in the seventh instruction asked by the defendant, but as to which we do not. deem it necessary or proper to express an opinion, it was-properly rejected,

fl."phacRetiring ment of* tions. Requiring the jury to withdraw from the court-room whilst the instructions were being argued and settled was a of practice, only within the discretion and control of . . . Court. We cannot see or imagine any impropriety m 0 J it, or how the appellant could have been thei’eby prejudiced. As the judgment must, for the error above indicated, be reversed, and the case remanded for a new trial, we do not-deem it proper to make any remark upon the evidence,, further than to say that there was, in our opinion, competent and legal evidence corroboratory of Helphrey’s, conducing to connect the appellant with the commission of the crime.

Reversed, and-remanded for a new tidal.