| Ark. | Jan 7, 1905
(after stating the facts.) 1. Counsel in an able argument contend that there was no testimony to show that appellant was guilty of murder in the second degree, and for that reason we have made a full statement of the evidence in the record bearing upon the fatal rencounter. The testimony of appellant and his witness White, if believed by the jury, would have entitled appellant to an acquittal on the ground of self-defense. But the testirhony tending to show that White was not present, and the testimony tending to show that he was not worthy of belief, left the matter of the weight to be attached to his testimony to the jury. The testimony tending to show that there was an open knife of deceased picked up where his body was lying immediately after the shooting was strongly corroborative of the testimony of appellant and his witness White, that Palmer was attempting to assault appellant with a knife at the time the fatal shot was fired. But, on. the other hand, the testimony of the physician who examined the dead body tended to show that the wound described in the chest of deceased could not have been made while deceased had his arm uplifted or in the attitude of striking or cutting the appellant, and the testimony of witnesses tending to show that Palmer had no such knife as that described was contradictory of the theory of self-defense thus put forth by appellant. This conflict in the evidence certainly makes it strictly the province of the jury to determine how and why the fatal shots were fired. The verdict indicates that the jury did not believe the testimony of appellant and his witnesses as to the manner and cause of the killing. The killing was with a deadly weapon; and if deceased was not attempting to cut appellant with his knife, then the words that appellant testified that the deceased used toward him, unaccompanied with any overt act, were not sufficient even to have provoked the deadly assault which appellant made on deceased. The proof showed that appellant and deceased were enemies; that appellant had been threatened by deceased, and had been informed of these threats. We think, under all the circumstances, it was a question for the jury, and not for this court, to deteiunine as to whether or not the killing was done with malice aforethought. No complaint is made of any of the court’s instructions. They were as complete on all phases of the case as appellant desired, and we are unwilling to disturb the verdict upon the evidence, since there was a conflict and evidence to support the finding.
2. In his third ground of the motion for new trial appellant complains of the misconduct of- the jury, committed as follows: “That as the jurors were selected they were put in charge of an officer of the court, and admonished not to talk to one another, nor to anybody else, about the case, and were especially admonished not to drink any intoxicating liquors, and that the officer was instructed to keep them together and not permit them to talk to anybody about the case, nor any one to talk to them; that, in violation of the. instructions so given, the jurors W. G. Bagwell, Luellen Sanders, H. Parnell, H. Greenberg and Burt Lea were placed in charge of Will Hackett; that they visited the enclosure back of Matthews’s saloon, and were given both beer and whisky freely, and, while drinking, mingled with the bystanders and crowd, going to and coming from such place, and were subjected to improper- influence thereby, and permitted to separate from one another while so drinking and mingling with .the crowd; and 'that the balance of the jury were placed in charge of another deputy sheriff, W. R. Arnold, and said jurors and officer were similarly admonished; that he permitted them to separate and mingle with the populace-, and the jurors in his charge were taken to the back room of Bailey’s saloon, where they were permitted to mingle and drink with the crowd, and subjected to improper influence.”
In support of this appellant adduced affidavits tending to show that the jurors procured liquor, one of them as much as a quart bottle at one time, and that on two occasions one of the jurors (Greenberg) bought a bottle of liquor; that on several occasions part of the jury visited the back part of a saloon, a wine room, where they were served frequently with drinks of both whisky and beer; that on several occasions, when the jurors were in the back part of the saloon, the officer having them in charge, or one of the jurors, would go into the saloon and bring drinks and go back; that the case was frequently discussed at the bar, which was about eight feet from the wine room, and near enough for the discussion to be heard; that on one occasion two of the jurors were sixty or seventy feet away from the others, talking to another man. That juror Greenberg early in the morning went to the saloon on different occasions not in' charge of an officer or the other jurors, and would buy his bottle of whisky; that the back part of the saloon was a urinal, and the jurors would go back there, and sit down on empty beer cases, and drink where parties were passing to and fro; that this went on during the trial.
Affidavits of all the jurors were adduced before the trial judge. They each deny the misconduct charged, and swear positively that they were at no time during the trial under .the influence of liquor; that they did not discuss the case or hear it discussed by any one. They deny specifically the acts of misconduct charged in the affidavits adduced for appellant, and one of the special officers testified that, while on several occasions he took the jurors in his charge to the urinal in the rear of the saloon, and permitted them to take one drink, no one of them at any time was under the influence of liquor, and at no time did he permit the case to be discussed or permit them to be subjected to any improper influence.
While the misconduct of the jurors generally is complained of, that of the juror Greenberg is especially stressed. The testimony before the court as it relates to the conduct of this juror is as follows:
W. R. Arnold testified: “On the trial of this case the court appointed me one of the guards over the jury. Part of them were placed in my charge, and part in Wm. Hackett’s charge. Mr. Greenberg was one of the jurors. He was in Mr. Hackett’s charge. On Wednesday morning early, before the rest of the jurors had got up, I went down to Mr. Cornell’s saloon, and when I went in Mr. Greenberg asked me to have a drink with him. This was after Greenberg had been accepted as a juror. No one was with him. He was separated from the other jurors. Once or twice we went back. to the urinal, back of Cornell’s saloon, and would take a drink of whisky and some beer. I do not think any member of the jury was under the influence of liquor while on that case. I saw them constantly, and don’t think they were intoxicated. They did not take enough whisky to intoxicate them. No one talked with any of the jurors in my presence.”
L. C. Jackson testified: “I am bartender for Matthews. I know juror H. Greenberg. He told me he was a juror on this case. One morning, after he was taken on the jury, when I was coming to the saloon, I met him waiting for me. He wanted to buy some whisky. He bought a pint. The next‘morning he was at the same place, and bought a half pint. This about daylight He was by himself.”
W. D. Bagnell testified: “I was one of the jurors in this case. I know H. Greenberg, who, with me and others, was in charge of William Blackett. I knew he left the other jurors twice. At one of these times we had to wait quite a while for him. I know of his getting up early. I saw him with a pint of whisky. He drank part of it. He was not drunk. Myself and Hackett went in back of the stable, back of Bailey’s saloon, and when we went through, took a bottle of beer. I know of no one else taking a drink there. I sent and got a bottle of whisky. They all drank pretty freely, as long as mine lasted.”
Greenberg himself testified as follows: “I was on the jury in this case. It is not true that the squad of six jurors visited the back of Matthews’s saloon on several occasions, or on any occasion. I went to the urinal, back of the saloon, in charge of the officer, but did not go through the saloon. The five other jurors were then under the charge of Murray Strong, who had been appointed as deputy sheriff. The cause of my going at this time was bowel cramp and the necessity for using the closet. While there, T. K. Lee visited me, and in the presence of the officer gave me a dose of medicine, and suggested that a drink of whisky would help me. I then requested the officer to step into the saloon and get me a small bottle of whisky, which he did. I took one swallow of it, and have not seen the bottle since. The officer was neither out of sight or. hearing of me, nor was I out of his sight or hearing. No conversation took place between me and any one else, except as I have stated. I bought no bottle of whisky from Matthews’s saloon or any other saloon, except as I have stated herein. I was at no time at Matthews’s saloon in any morning, or at any other time, waiting for the barkeeper, L. C. Jackson, or any other barkeeper to come. I was at no time out of the charge of the officer, or out of his hearing or sight, from the time I became a juror until I was discharged. Until the case was finally submitted to the jury, it was not discussed by us or by any one in my presence or hearing. I was subjected to no improper influence.”
Appellant’s counsel, relying upon the authority of Maclin v. State, 44 Ark. 115" date_filed="1884-11-15" court="Ark." case_name="Maclin v. State">44 Ark. 115, to the effect that the separation of a juror from his fellows pending the trial of criminal cases casts upon the State the burden of proving that- no improper influence was brought to bear on him, contend that the State has not met this burden, and that this verdict should be set aside on account of the misconduct of this juror. In the Maclin case the separation and' opportunity for the juror to be improperly influenced was shown, but the juror was not sworn on the part of the State to show that he was not improperly influenced. Here all the jurors whose conduct is called in question were called, and testify that they were at no time under the influence of liquor, and did not at any time discuss with others, or hear others discuss the case, and did not discuss it among themselves until it was finally submitted to them for decision. And the juror Greenberg, whose conduct is so severely arraigned, denies specifically the alleged acts of misconduct attributed to him, and shows that he was not under the influence of liquor, and that the case was not discussed in his presence or hearing until after final submission. It is true that this witness is contradicted in many particulars by several other witnesses. But the trial judge is better qualified to pass upon these contradictions than this court. He has the witnesses before him, and can better judge their credibility than this court. It is peculiarly his province to weigh the conflicting statements, and ascertain the truth. After he has done so, we will not disturb his finding where the evidence is conflicting, although we may regard his finding on the question as against the decided weight of the evidence. When trial courts are impressed with, the necessity of keeping the jurors together during the trial of a felony case, in order that they may not be subjected to improper influences, they should see that the jurors, and especially the officers having them in charge, obey strictly every order and direction of the court looking to the integrity of the trial; and where jurors or officers disobey the orders of the court, they should be swiftly punished for contempt, whether the' purity of the trial is affected by such misconduct or not. For in no other way can the tribunal enforce respect for its own orders and preserve the jury from contamination. But the question for us at last, in any case where the court’s orders have been disobeyed, and the verdict of the jury is thereby called in question on account of alleged misconduct, is not whether jurors and officers should be punished for contempt by the trial judge, but whether such alleged misconduct has resulted' in an impure yer-dict. The law undoubtedly is that where such misconduct is shown, the presumption is against the integrity of the verdict, and. the burden is upon the State to remove it by showing that no prejudicial influence was exerted over the jury. Maclin v. State, supra. The State met the burden in this case by proof which was satisfactory to the lower court, and sufficient here to sustain its ruling. Payne v. State, 66 Ark. 545" date_filed="1899-07-01" court="Ark." case_name="Payne v. State">66 Ark. 545, and authorities cited.
3. Appellant contends that, inasmuch as the record fails to show that a special grand jury Was impaneled after the regular grand jury had been discharged, and inasmuch as the record fails to show that the regular March term in the Chicot Circuit Court was opened on the first Monday in March as prescribed by law, there is no showing of jurisdiction. There is nothing in this. The record shows that at the March term, 1904, of the Chicot Circuit Court, the indictment upon which appellant was tried wa-s presented by a special grand jury. It shows also that on March 16 the case was set for trial on the second week of the present term. It shows that on the 12th day of April, 1904, there was an arraignment and plea of not guilty, and that on April 13, 1904, a jury was duly impaneled to try appellant. As the court is shown to have been in session at the regular March term, as prescribed by law, the presumption is that the special grand jury was called as the statute requires, and that the court made such formal orders of opening and adjourning from day to day, or to a future day, as might be necessary' to preserve its jurisdiction. ■
Finding no error, the judgment is affirmed.