| Ark. | Jan 26, 1914
(after stating the facts). It is first contended by counsel for defendant that the court erred in not sustaining his motion in arrest of judgment. Under our statute, the only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. Kirby’s Digest, § 2427; Marshall v. State, 101 Ark. 155" date_filed="1911-11-27" court="Ark." case_name="Marshall v. State">101 Ark. 155; Jones v. State, 100 Ark. 195" date_filed="1911-10-02" court="Ark." case_name="Jones v. State">100 Ark. 195. The indictment in this case was returned under section 1768 of Kirby’s Digest, which provides that every person deliberately assisting another in the commission of suicide or self-murder shall be adjudged guilty of murder. The offense charged against the defendant being statutory, the indictment must be framed upon the statute. It is well settled in this State that an indictment for committing a statutory offense may describe the offense in the general language of the statute, but the description must be accompanied by a statement of the particulars essential to constitute the crime charged, and must acquaint the accused with what he must meet upon the trial. Houpt v. State, 100 Ark. 409" date_filed="1911-10-23" court="Ark." case_name="Houpt v. State">100 Ark. 409.
It is insisted by counsel for defendant that there are no allegations in the indictment charging that the defendant, when he procured the morphine for Ehoda Carter, or when he delivered it to her, knew that she contemplated its use in her suicide or self-murder. The indictment charges that the defendant unlawfully, wilfully, feloniously and of his malice aforethought, and after deliberation and premeditation, deliberately assisted Ehoda Carter in the commission of suicide by procuring for her the morphine which she used for that purpose. Therefore, we think that all the essentials of the crime under the statute were set out in the indictment. The word “feloniously” in an indictment signifies an intent to commit a crime. Turner v. State, 61 Ark. 359" date_filed="1895-12-07" court="Ark." case_name="Turner v. State">61 Ark. 359; State v. Eldridge, 12 Ark. 610. The word, in its ordinary as well as legal acceptation, characterizes a mind bent on wrongdoing, and means that the act charged proceeded from an evil heart or purpose. We think the indictment sufficiently charges that the defendant knew that the poison which he procured and delivered to Ehoda Carter was to be used by her for the purpose of self-murder, and that it was given to her for that purpose.
It is next insisted by counsel for defendant that the court erred in admitting the testimony of T. L. Turner. The defendant objected to his testifying on the ground that he was an incompetent witness because he was an atheist, and introduced testimony in support thereof. There was also a pamphlet introduced which was written by T. L. Turner, in which he expressed a belief that there was a Grod. Our Constitution provides that “no person who denies the being of a G-od shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court.” Constitution of Arkansas, 1874, art. 19, § 1. The opinion and belief of men can be known only by what they have said or written, and their declarations, either verbal or written, are the proper evidence of their opinion. Smith v. Coffin, 18 Me. 157" date_filed="1841-09-15" court="Me." case_name="Smith v. Coffin">18 Me. 157. A written pamphlet of Mr. Turner introduced before the court showed that he did believe in the existence of a God, and we are of the opinion that the court did not err in permitting him to be introduced as a witness.
It is next insisted by counsel for defendant that the court erred in admitting the note purporting to have been written by T. L. Turner, his wife and Bhoda Carter, just before they took the-morphine. T. L. Turner and his wife and the dead body of Bhoda Carter were discovered lying on a bed side by side. Mrs. Turner was dying when discovered, and died in a few minutes thereafter. T. L. Turner was unconscious and was unable to have written the note in question after he was under the influence of the morphine. Turner admitted that the signature to the note purporting to be his name was his signature, but says that he does not remember whether the others signed it or not. The undisputed evidence shows that the note must have been written before the parties took the morphine. The writing of the note and the taking of the morphine with suicidal intent were all parts of the same transaction, and it would have been impossible to have fully developed the facts and circumstances surrounding the death of Bhoda Carter without admitting this writing in evidence. The note in question had a tendency to elucidate or give character to the acts of the parties, and was admissible as part of the res gestae. See Childs v. State, 98 Ark. 430" date_filed="1911-03-27" court="Ark." case_name="Childs v. State">98 Ark. 430; Vassar v. State, 75 Ark. 373" date_filed="1905-05-13" court="Ark." case_name="Vasser v. State">75 Ark. 373; Cornelius v. State, 12 Ark. 783, at page 804. Moreover, the note was admissible because the undisputed evidence shows that Bhoda Carter committed suicide. While T. L. Turner says that he does not recollect that she took the morphine at the time he did, he does state that they had contemplated taking their lives for several years. The testimony of the attending physician shows that Bhoda Carter and Mrs. Turner died as a result of morpMne poisoning. The position that the bodies occupied and all the attending circumstances which we have recited in the statement of facts point unerringly to the conclusion that the parties took the morphine at the same time with suicidal intent as a result of an agreement reached by them beforehand. It is well settled in this State that there is no prejudicial error in admitting incompetent testimony of a fact that has been proved by the undisputed evidence.
Finally it is insisted by counsel for defendant that the testimony is not sufficient to support the verdict; but we can not agree with them in this contention. The testimony shows that the parties had for several years contemplated suicide. They were all spiritualists and had talked over the question of self-destruction at frequent intervals together. The defendant was a daily visitor to their house and acted as medium for them in their spiritualistic seances. Through him, acting as medium, it was shown that the deceased son of Rhoda Carter had' advised them to come over on the other side. The jury might have inferred that the defendant was the one who acted as the medium in giving this advice to Rhoda Carter and the Turners, and therefore was the person who gave the advice. A few hours before they took the poison, Turner and his wife made a deed to the defendant of all their real estate, of the value of about three thousand dollars. It was shown that the defendant purchased a drachm of morphine about ten days before Rhoda Carter committed suicide, and that a bottle of this size was found on the dresser in the room where her body lay. It is true, in the examining trial the defendant testified in his own behalf and stated that he had purchased the morphine for Rhoda Carter at her request to be used by her, as she stated, for the toothache; but when we consider the quantity of morphine purchased by him, together with the other facts and circumstances adduced in evidence, we are of the opinion that the jury was warranted in believing that the defendant purchased the morphine for Rhoda Carter to be used by her and the Turners for the purpose of self-destruction. All the facts and circumstances, as we have already stated, point unerringly to the conclusion that Rboda Carter and Mrs. Turner committed suicide by taking morphine, and that T. L. Turner attempted self-destruction by the same means, at the same time, and that their act was the result of an agreement so to do. The other facts and circumstances adduced in evidence warranted the jury in believing that the defendant procured the morphine and delivered it to Rhoda Carter to be used by her and the Turners in their act of self-destruction. Therefore, the evidence justified the verdict, and the judgment will be affirmed.