64 Ark. 121 | Ark. | 1897
(after stating the facts.) Though the testimony in this case was shadowy, and not of a character the most satisfactory, yet it was the province of the jury to weigh and pass upon it, and we cannot say there was no testimony upon which they might have found a verdict of guilty.
But the court is of the opinion that the circuit court erred in permitting the testimony showing that the wife of Hall said: “Mr. Hall was not there,” meaning he was not present when King was shot, which statement, the testimony shows, was made in the presence of Hall, and about which he said nothing,—was silent. This was calculated to impress the jury with the idea that, though she was not informed by the officer of the cause of the arrest, yet she knew the cause, and had made the statement only to screen her husband, when in fact she knew nothing about the truth of what she stated. This was wrong, and might have prejudiced the jury, and we incline to think it did.
Refusing to allow William B.ailey to testify that Jim Osbrook slept with him at his father’s house on Friday night, the 18th day of October, 1895, the night when King was shot, was error. The conviction of Hall depended upon the truth of Sol Gibbs’ testimony, who had sworn that Hall did the shooting, and that Jim Osbrook was present pursuant to previous agreement, aiding and abetting the perpetration of the murder. Gibbs was confessedly an accomplice, and the circumstances of corroboration were slight, and if he could be justly impeached, it was of vital importance to the defendant. It is the rule that it is within the sound judicial discretion of the court where cumulative testimony shall stop. But in a capital ease especially this discretion should be cautiously exercised. Galveston, H. & S. A. Ry. Co. v. Matula, 15 S. W. 573.
Though Henry Bailey and Cinda, his wife, had testified that Osbrook staid all night at Henry Bailey’s house on the Friday night that King was shot, yet this testimony was not of that definite and circumstantial character as the testimony of Wm. Bailey would have been that Jim Osbrook slept at Henry Bailey’s house in the same bed with him (Willaim Bailey) who was a grown son of Henry Bailey. Galveston, H. & S. A. Ry. Co. v. Matula, 15 S. W. 573.
We think that under the circumstances of this case it was error to refuse this testimony. For the errors indicated, the judgment is reversed, and cause remanded for a new trial.
